NRDC Acquisition Corp. 30,000,000 Units UNDERWRITING AGREEMENT dated [___] Banc of America Securities LLC
Exhibit
1.1
30,000,000
Units
dated
[___]
Banc
of America Securities LLC
[Date]
BANC
OF
AMERICA SECURITIES LLC
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, ▇▇ ▇▇▇▇▇
As
Representative of the several Underwriters
Ladies
and Gentlemen:
Introductory. NRDC
Acquisition Corp., a Delaware corporation (the “Company”), proposes to
issue and sell to the several underwriters named in Schedule A (the
“Underwriters”) an aggregate of 30,000,000 units (the “Firm
Units”). In addition, the Company has granted to the Underwriters
an option to purchase up to an additional 4,500,000 units (the “Optional
Units”), as provided in Section 2. The Firm Units and, if and to
the extent such option is exercised, the Optional Units are collectively
called
the “Units.” Banc of America Securities LLC (“BAS”) has
agreed to act as representative of the several Underwriters (in such capacity,
the “Representative”) in connection with the offering and sale of the
Units. To the extent there are no additional Underwriters listed on
Schedule A other than BAS, the terms Representative and Underwriters as
used herein shall mean BAS, as Underwriters. The terms Representative
and Underwriters shall mean either the singular or plural as the context
requires.
Each
Unit
consists of one share of the Company’s common stock, par value $0.0001 per share
(the “Common Stock”), and one warrant to purchase one share of Common
Stock (the “Warrant(s)”). The Units, the Common Stock and the
Warrants are collectively referred to herein as the
“Securities.” Each Warrant entitles its holder, upon exercise,
to purchase one share of Common Stock for $7.50 during the period commencing
on
the later of the consummation of an initial Business Combination (as defined
herein) or [·],
2008, and terminating on [·], 2011
or earlier
upon redemption of such Warrants by the Company or the Company’s Liquidation (as
defined herein). As used herein, (i) the term “Business
Combination” (as described more fully in the Prospectus) shall mean an
acquisition by the Company, through a merger, capital stock exchange, stock
purchase, asset acquisition or other similar business combination, of one
or
more operating businesses, and (ii) the term “Liquidation” (as described
more fully in the Prospectus) shall mean the Company’s winding up of its affairs
and liquidation if the Company has not consummated an initial Business
Combination prior to the date that is 24 months from the date of the Prospectus
(as defined in Section 1(A)(a) below).
The
Company has entered into an Investment Management Trust Agreement, dated
as of
[·], 2007,
with
Continental Stock Transfer & Trust Company (“CST&T”), as trustee,
in the form of Exhibit 10.11 to the Registration Statement (the “Trust
Agreement”), pursuant to which $296,450,589 of the proceeds ($339,875,589 if
the Underwriters exercise their option to purchase the Optional Units in
full)
received by the Company for the Units (including deferred underwriting discounts
and commissions of $10,500,000, or $12,075,000 if the Underwriters exercise
their option to purchase the Optional Units in full) and in connection with
the
Warrant Private Placement Agreement (as defined herein) will be deposited
and
held in a trust account (the “Trust Account”) for the benefit of holders
of any of the Securities offered to the public pursuant to this
Agreement.
The
Company has entered into a Warrant Agreement, dated as of [·], 2007,
with
respect to the Warrants, the Sponsor’s Warrants (as defined herein) and the
Co-Investment Warrants (as defined herein) with CST&T, as warrant agent, in
the form of Exhibit 4.4 to the Registration Statement (the “Warrant
Agreement”), pursuant to which CST&T will act as warrant agent in
connection with the issuance, registration, transfer, exchange, redemption,
and
exercise of the Warrants, the Sponsor’s Warrants and the Co-Investment
Warrants.
The
Company has entered into a Subscription Agreement, dated as of July 13, 2007,
with NRDC Capital Management, LLC (the “Sponsor”), in the form of Exhibit
10.15 to the Registration Statement (the “Subscription Agreement”),
pursuant to which the Sponsor has purchased an aggregate of 8,625,000 (after
giving effect to a 6 for 5 stock split of the Company’s Common Stock effected on
September 4, 2007) shares of Common Stock (the “Sponsor Common Stock”),
for an aggregate purchase price of $25,000. The Sponsor Common Stock
is identical to the Common Stock included in the Units except (i) the Sponsor
has agreed (and its Permitted Transferees (as defined herein) shall agree)
not
to sell or otherwise transfer the Sponsor Common Stock, other than to Permitted
Transferees until one (1) year following the consummation of the Company’s
initial Business Combination; (ii) the Sponsor will be entitled to certain
registration rights with respect to the Sponsor Common Stock pursuant to
the
Registration Rights Agreement (as defined herein); (iii) the Sponsor has
agreed
to vote the Sponsor Common Stock in the same manner as the shares cast by
a
majority of the public stockholders in connection with the vote required
to
approve the Company’s initial Business Combination and to amend the Company’s
charter to provide for the Company’s perpetual existence; (iv) the Sponsor will
not be able to exercise conversion rights (as described more fully in the
Prospectus) with respect to the Sponsor Common Stock; and (v) the Sponsor
has
agreed to waive its rights to participate in any liquidating distributions
with
respect to the Sponsor Common Stock in the event of a Liquidation. As
used herein, the term “Permitted Transferees” shall mean the Sponsor’s
members or former members and members of their immediate families or their
controlled affiliates.
The
Company has entered into a Warrant Private Placement Agreement, dated as
of [•],
2007, with the Sponsor, in the form of Exhibit 10.16 to the Registration
Statement (the “Warrant Private Placement Agreement”), pursuant to which
the Sponsor has agreed to purchase an aggregate of 8,000,000 warrants, each
entitling the holder to purchase one share of Common Stock (the “Sponsor’s
Warrants”), for $1.00 per Sponsor’s Warrant, for an aggregate purchase price
of $8,000,000. The Sponsor’s Warrants are identical to the Warrants
included in the Units, except (i) the Sponsor’s Warrants are exercisable on a
cashless basis so long as they are held by the Sponsor or its Permitted
Transferees; (ii) the Sponsor has agreed (and its Permitted Transferees shall
agree) not to sell or otherwise transfer the Sponsor’s Warrants, other than to
Permitted Transferees, until after the Company consummates its initial Business
Combination; (iii) the Sponsor’s Warrants will not be exercisable unless a
registration statement covering the shares of Common Stock issuable upon
exercise of the Warrants sold in the public offering is effective and a
prospectus is available for use by the public Warrant holders; and (iv) the
Sponsor will be entitled to certain registration rights with respect to the
Sponsor’s Warrants and the Common Stock issuable upon exercise of the Sponsor’s
Warrants pursuant to the Registration Rights Agreement.
The
Company has entered into a Co-Investment Agreement, dated as of [•], 2007, with
the Sponsor, in the form of Exhibit 10.18 to the Registration Statement (the
“Co-Investment Agreement”), pursuant to which the Sponsor has agreed to
purchase an aggregate of 2,000,000 units (the “Co-Investment Units”),
each consisting of one share of Common Stock (the “Co-Investment Common
Stock”) and one warrant to purchase one share of Common Stock (the
“Co-Investment Warrants”), for $10.00 per Co-Investment Unit, for an
aggregate purchase price of $20,000,000. The Co-Investment Units,
Co-Investment Common Stock and Co-Investment Warrants are identical to the
Units, Common Stock and Warrants, respectively, except (i) the proceeds from
the
sale of the Co-Investment Units will
2
not
be
received by the Company until immediately prior to the consummation of the
initial Business Combination and, therefore, will not be deposited into the
Trust Account or available for distribution to the public stockholders in
the
event of a liquidating distribution; (ii) the Sponsor has agreed (and its
Permitted Transferees shall agree) not to sell or otherwise transfer the
Co-Investment Units, Co-Investment Common Stock, Co-Investment Warrants and
Common Stock issuable upon the exercise of the Co-Investment Warrants, other
than to Permitted Transferees, until one (1) year after the Company consummates
its initial Business Combination; (iii) the Co-Investment Warrants may be
exercised only (A) after the date on which the last sales price of the Common
Stock on the American Stock Exchange, or other national securities exchange
on
which the Common Stock may be traded, equals or exceeds $14.25 per share
for any
20 trading days within any 30-trading-day period beginning at least 90 days
after the consummation of the Company’s initial Business Combination, and (B) so
long as any of the Co-Investment Warrants remains outstanding, a registration
statement relating to the shares of Common Stock underlying the Co-Investment
Warrants is effective and a prospectus relating to those shares is available
for
use by the Co-Investment Warrant holders; (iv) the Co-Investment Warrants
(A)
will be exercisable on a cashless basis so long as they are held by the Sponsor
or its Permitted Transferees, and (B) are not redeemable by the Company;
(v) the
Sponsor will be entitled to certain registration rights with respect to the
Co-Investment Units, Co-Investment Common Stock, Co-Investment Warrants and
Common Stock issuable upon the exercise of the Co-Investment Warrants pursuant
to the Registration Rights Agreement; and (vi) there will be no conversion
rights with respect to the shares of Co-Investment Common Stock.
The
Company has entered into a Registration Rights Agreement, dated as of [·], 2007,
with the
Sponsor, in the form of Exhibit 10.14 to the Registration Statement (the
“Registration Rights Agreement”), pursuant to which the Company has
granted certain registration rights in respect of: (i) the Sponsor’s Common
Stock, (ii) the Sponsor’s Warrants and the Common Stock issuable upon the
exercise of the Sponsor’s Warrants, and (iii) the Co-Investment Units, the
Co-Investment Common Stock, the Co-Investment Warrants and the Common Stock
issuable upon the exercise of the Co-Investment Warrants.
The
Company has caused to be duly executed and delivered letters by the Sponsor,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ (the foregoing
parties are each, a “Founder,” and, collectively, the “Founders”),
and each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the foregoing parties are each, an “Independent
Director,” and, collectively, the “Independent Directors”), each in
the forms of Exhibits 10.1 - 10.10 to the Registration Statement (the
“Insider Letters”). Collectively, the Founders and the
Independent Directors are sometimes referred to herein as the “Initial
Stockholders.”
The
Company has entered into a Right of First Offer Agreement, dated as of [·], 2007,
with the
Founders, the Independent Directors, NRDC Real Estate Advisors, LLC and NRDC
Equity Partners, in the form of Exhibit 10.17 to the Registration Statement
(the
“Right of First Offer Agreement”), pursuant to which, from the date of
the Prospectus until the earlier of the Company’s consummation of an initial
Business Combination or Liquidation, subject to the pre-existing fiduciary
obligations of the Founders and the Independent Directors, the Company will
have
a right of first offer with respect to business combination opportunities
with
any operating business.
The
Company has entered into a letter
agreement, dated as of [·], 2007,
with the
Sponsor, in the form of Exhibit 10.12 to the Registration Statement (the
“Services Agreement”), pursuant to which the Company will pay the
Sponsor, subject to the terms of the Services Agreement, an aggregate monthly
fee of $7,500 for general and administrative services, including office space,
utilities and secretarial support from the date hereof until the earlier
of the
Company’s consummation of an initial Business Combination or
Liquidation.
3
The
Company hereby confirms its agreements with the Underwriters as
follows:
Section
1. Representations and Warranties of the
Company.
The
Company hereby represents and warrants to, and covenants with, each Underwriter
as follows:
(a) The
Company has prepared
and filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (File No. 333-144871), which contains
a
form of prospectus to be used in connection with the public offering and
sale of
the Securities. Such registration statement, as amended, including
the financial statements, exhibits and schedules thereto, in the form in
which
it was declared effective by the Commission under the Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the
“Securities Act”), including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A under the Securities
Act, is called the “Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities
Act
is called the “Rule 462(b) Registration Statement”, and from and after
the date and time of filing of the Rule 462(b) Registration Statement the
term
“Registration Statement” shall include the Rule 462(b) Registration
Statement. Any preliminary prospectus included in the Registration
Statement is hereinafter called a “preliminary
prospectus.” The term “Prospectus” shall mean the final
prospectus relating to the Units that is first filed pursuant to Rule 424(b)
under the Securities Act after the date and time that this Agreement is executed
and delivered by the parties hereto (the “Execution Time”) or, if no
filing pursuant to Rule 424(b) under the Securities Act is required, shall
mean
the form of final prospectus relating to the Units included in the Registration
Statement at the effective date. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall
be
deemed to refer to and include the documents incorporated by reference therein
pursuant to General Instruction VII of Form S-1 under the Securities Act,
if
any. All references in this Agreement to the Registration Statement,
the Rule 462(b) Registration Statement, a preliminary prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
(b) Compliance
with Registration Requirements. The Registration
Statement has been declared effective by the Commission under the Securities
Act. The Company has complied to the Commission’s satisfaction with
all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement, or notice objecting to its use, is in effect, the
Commission has not issued any order or notice preventing or suspending the
use
of the Registration Statement, any preliminary prospectus or the Prospectus
and
no proceedings for such purpose have been instituted or are pending or, to
the
best knowledge of the Company, are contemplated or threatened by the
Commission.
Each
preliminary prospectus and the Prospectus when filed complied in all material
respects with the Securities Act. Each of the Registration Statement
and any post-effective amendment thereto, at the time it became effective
and at
the date hereof complied and will comply in all material respects with the
Securities Act and 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. The
Prospectus, as amended or supplemented, as of its date, at the date hereof,
at
the time of any filing pursuant to Rule 424(b) under the Securities Act,
at the
Closing Date (as defined herein) and at any Subsequent Closing Date (as defined
herein), did not and will not contain 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. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or omissions
from
the
4
Registration
Statement or any post-effective amendment thereto, or the Prospectus, or
any
amendments or supplements thereto, based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use therein; it being understood and agreed
that
the only such information furnished by any Underwriter consists of the
information described as such in Section 8 hereof. There is no
contract or other document required to be described in the Prospectus or
to be
filed as an exhibit to the Registration Statement that has not been described
or
filed as required.
The
documents incorporated by reference
in the Prospectus, if any, when they became effective or were filed with
the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act.
(c) Disclosure
Package. The term “Disclosure Package” shall mean (i) the
preliminary prospectus, if any, as amended or supplemented, and (ii) a schedule
indicating the number of Units being sold and the price at which the Units
will
be sold to the public. As of ____:00 [a/p].m. (New York time) on the
date of execution and delivery of this Agreement (the “Applicable Time”),
the Disclosure Package did not contain any untrue statement of a material
fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use therein, it being understood and agreed
that
the only such information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
(d) Intentionally
Omitted.
(e) Free
Writing Prospectuses. The Company has not prepared or used a
Free Writing Prospectus. The term “Free Writing Prospectus”
shall mean a free writing prospectus, as defined in Rule 405 under
the
Securities Act.
(f) Accuracy
of Statements in Prospectus. The statements in the Registration
Statement under Item 14 and the statements in the Disclosure Package and
the
Prospectus under the headings “Description of Securities” and “United States
Federal Income and Estate Tax Considerations,” in each case insofar as such
statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(g) Distribution
of Offering Material By the Company. The Company has
not distributed and will not distribute, prior to the later of the last
Subsequent Closing Date and the completion of the Underwriters’ distribution of
the Units, any offering material in connection with the offering and sale
of the
Units other than a preliminary prospectus, the Prospectus, in each case as
supplemented or amended, or the Registration Statement.
(h) The
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(i) Validity
of Agreements. Each of the Trust Agreement, the Warrant
Agreement, the Subscription Agreement, the Warrant Private Placement Agreement,
the Co-Investment Agreement, the Registration Rights Agreement, the Insider
Letters, the Right of First Offer Agreement and the Services Agreement has
been
duly and validly authorized by the Company and, assuming the due authorization,
execution and delivery of the other parties thereto, constitutes the valid
and
binding agreement of the Company, enforceable in accordance with its terms,
except (i) as such enforceability may be limited by
5
bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and
(iii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(j)
Authorization
and Description
of the Units. The Units to be purchased by the
Underwriters from the Company have been duly authorized for issuance and
sale
pursuant to this Agreement and, the shares of Common Stock included in the
Units, when issued and delivered by the Company to the Underwriters pursuant
to
this Agreement on the Closing Date or any Subsequent Closing Date, will be
validly issued, fully paid and nonassessable. Each of the Securities
conform in all material respects to all statements relating thereto contained
in
the Disclosure Package and the Prospectus and the descriptions thereof conform
to the rights set forth in the instruments defining the same; no holder of
the
Common Stock will be subject to personal liability solely by reason of being
such a holder; and the issuance of the Units is not subject to preemptive
or
other similar rights of any securityholder of the Company.
(k) No
Transfer Taxes. There are no transfer taxes or other similar
fees or charges under federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution
and
delivery of this Agreement or the issuance by the Company or sale by the
Company
of the Units.
(l) No
Applicable
Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included
in
the offering contemplated by this Agreement.
(m) No
Material Adverse Change. Except as otherwise disclosed in the
Disclosure Package and the Prospectus, subsequent to the respective dates
as of
which information is given in each of the foregoing: (i) there has been no
material adverse change, or any development that could reasonably be expected
to
result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, properties or operations, whether or not arising
from transactions in the ordinary course of business, of the Company (any
such
change is called a “Material Adverse Change”); (ii) the Company has not
incurred any material liability or obligation, indirect, direct or contingent,
nor entered into any material transaction or agreement; and (iii) there has
been
no dividend or distribution of any kind declared, paid or made by the Company
on
any class of capital stock.
(n)
Independent Accountants. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, who have expressed their opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto)
and
supporting schedules filed with the Commission as a part of the Registration
Statement and included in the Disclosure Package and the Prospectus, are
independent public accountants with respect to the Company as required by
the
Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (collectively, the “Exchange
Act”).
(o)
Preparation of the Financial Statements. The
financial statements filed with the Commission as a part of the Registration
Statement and included in the Disclosure Package and the Prospectus present
fairly the financial position of the Company as of and at the dates indicated
and the results of their operations and cash flows for the periods
specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein. Such financial statements and supporting schedules comply as
to form with the applicable accounting requirements of the Securities Act
and
have been prepared in conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved,
except as may be expressly
6
stated
in
the related notes thereto. No other financial statements or
supporting schedules are required to be included in the Registration
Statement. The financial data set forth in the preliminary prospectus
and the Prospectus under the captions “Prospectus Summary—Summary Financial
Data,” “Capitalization” and “Dilution” fairly present the information set forth
therein on a basis consistent with that of the audited financial statements
contained in the Registration Statement.
(p)
Incorporation
and Good Standing
of the Company. The Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the
State of Delaware and has the corporate power and authority to own or lease,
as
the case may be, and operate its properties and to conduct its business as
described in the Disclosure Package and the Prospectus and to enter into
and
perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason
of the ownership or leasing of property or the conduct of business, except
for
such jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a material adverse
effect, on the condition, financial or otherwise, or on the earnings, business,
properties, operations or prospects, whether or not arising from transactions
in
the ordinary course of business, of the Company (a “Material Adverse
Effect”). The Company has no subsidiaries.
(q)
Capitalization and Other Capital Stock Matters. The
authorized, issued and outstanding capital stock of the Company is as set
forth
in the Disclosure Package and the Prospectus under the caption “Capitalization”
(other than for subsequent issuances, if any, pursuant to this Agreement,
the
Warrant Private Placement Agreement, the Co-Investment Agreement and any
employee benefit plans described in the Disclosure Package and the Prospectus
or
upon exercise of outstanding options or warrants described in the Disclosure
Package and the Prospectus, as the case may be). All of the issued
and outstanding Securities have been duly authorized and validly issued,
are
fully paid and nonassessable and have been issued in compliance with federal
and
state securities laws. None of the outstanding Securities were issued
in violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights
of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of
the
Company other than those accurately described in the Disclosure Package and
the
Prospectus. The Company has not granted any stock options, and does
not have any stock option, stock bonus or other stock plans or
arrangements.
(r)
Listing. The Units have been approved for listing
on the American Stock Exchange, subject only to official notice of
issuance. There is and has been no failure on the part of the Company
or any of the Company’s officers or directors, in their capacities as such, to
comply with (as and when applicable), and immediately following the effective
date of the Registration Statement, the Company will be in compliance with,
(a)
Part 8 of the American Stock Exchange’s “AMEX Company Guide,” as amended and (b)
all other provisions of the American Stock Exchange corporate governance
requirements set forth in the AMEX Company Guide, as amended.
(s)
Non-Contravention of Existing Instruments; No Further Authorizations
or
Approvals Required. The Company is not (i) in violation
or in default (or, with the giving of notice or lapse of time, would be in
default) (“Default”) under its charter or by-laws, (ii) in Default under
any indenture, mortgage, loan or credit agreement, deed of trust, note,
contract, franchise, lease or other agreement, obligation, condition, covenant
or instrument to which the Company is a party or by which it may be bound,
or to
which any of the Company’s properties or assets is subject (each, an
“Existing Instrument”), or (iii) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties, except with respect
to
clause (ii) only, for such Defaults as would not,
7
individually
or in the aggregate, have a Material Adverse Effect. The Company’s
execution, delivery and performance of this Agreement and consummation of
the
transactions contemplated hereby, by the Disclosure Package and by the
Prospectus (including the issuance and sale of the Units and the use of proceeds
from the sale of the Units and the Warrants to be sold pursuant to the Warrant
Private Placement Agreement as described in the Prospectus under the caption
“Use of Proceeds”) and the Company’s compliance with its obligations hereunder
and under the Subscription Agreement, the Warrant Private Placement Agreement
and the Co-Investment Agreement (A) have been duly authorized by all necessary
corporate action and will not result in any Default under the charter or
by-laws
of the Company, (B) will not conflict with or constitute a breach of, or
Default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, or require
the consent of any other party to, any Existing Instrument, and (C) will
not
result in any violation of any statute, law, rule, regulation, judgment,
order
or decree applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its
properties. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency is required for the Company’s execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby, by the Disclosure Package and by the Prospectus, except such as have
been obtained or made by the Company and are in full force and effect under
the
Securities Act, applicable state securities or blue sky laws and from the
Financial Industry Regulatory Authority (the “FINRA”).
(t)
No Material Actions or Proceedings. There are no
legal or governmental actions, suits or proceedings pending or, to the best
of
the Company’s knowledge, threatened (i) against or affecting the Company, (ii)
which has as the subject thereof any officer or director of, or property
owned
or leased by, the Company, or (iii) relating to environmental or employment
matters, where in any such case, (A) there is a reasonable possibility that
such
action, suit or proceeding might be determined adversely to the Company,
or any
officer or director of, or property owned or leased by, the Company and (B)
any
such action, suit or proceeding, if so determined adversely, could have a
Material Adverse Effect or adversely affect the consummation of the transactions
contemplated by this Agreement.
(u)
Labor Matters. No labor problem or dispute with the
employees of the Company exists or is threatened or imminent, and the Company
is
not aware of any existing or imminent labor disturbance by the employees
of any
of its principal suppliers, contractors or customers, that could have a Material
Adverse Effect.
(v)
Intellectual
Property
Rights. The Company owns, possesses, licenses or has
other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service ▇▇▇▇ registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other
intellectual property (collectively, the “Intellectual Property”)
necessary for the conduct of the Company’s business as now conducted or as
proposed in the Disclosure Package and the Prospectus to be
conducted. Additionally, (i) no party has been granted an exclusive
license to use any portion of such Intellectual Property owned by the Company;
(ii) to the Company’s best knowledge, there is no material infringement by third
parties of any such Intellectual Property owned by or exclusively licensed
to
the Company; (iii) there is no pending or, to the Company’s best knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s
rights in or to any material Intellectual Property, and the Company is unaware
of any facts that would form a reasonable basis for any such claim; (iv)
to the
Company’s best knowledge, there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company is unaware of any facts that would
form a
reasonable basis for any such claim; and (v) there is no pending or, to the
Company’s best knowledge, threatened action, suit, proceeding or claim by others
that the
8
Company’s
business as now conducted infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any other fact that would form a reasonable basis for any such
claim.
(w)
All
Necessary Permits,
etc. The Company possesses such valid and current licenses,
certificates, authorizations or permits issued by the appropriate state,
federal
or foreign regulatory agencies or bodies necessary to conduct its businesses,
and the Company has not received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such license,
certificate, authorization or permit which, singly or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, could have a Material
Adverse Effect.
(x)
Title to Properties. The Company has good and
marketable title to all the properties and assets reflected as owned in the
financial statements referred to in Section 1(A)(o) above (or elsewhere in
the
Disclosure Package and the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims and
other
defects, except such as do not materially and adversely affect the value
of such
property and do not materially interfere with the use made or proposed to
be
made of such property by the Company. The real property,
improvements, equipment and personal property held under lease by the Company
are held under valid and enforceable leases, with such exceptions as are
not
material and do not materially interfere with the use made or proposed to
be
made of such real property, improvements, equipment or personal property
by the
Company.
(y)
Tax Law Compliance. The Company has filed all
necessary federal, state, local and foreign income and franchise tax returns
in
a timely manner and has paid all taxes required to be paid by it and, if
due and
payable, any related or similar assessment, fine or penalty levied against
it,
except for any taxes, assessments, fines or penalties as may be being contested
in good faith and by appropriate proceedings. The Company has made
appropriate provisions, if any, in the applicable financial statements referred
to in Section 1(A)(o) above in respect of all federal, state, local and foreign
income and franchise taxes for all current or prior periods as to which the
tax
liability of the Company has not been finally determined.
(z)
Company Not an “Investment Company”. The Company
has been advised of the rules and requirements under the Investment Company
Act
of 1940, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Investment Company Act”). The Company is
not, and after receipt of payment for the Units and the application of the
proceeds thereof as contemplated under the caption “Use of Proceeds” in the
preliminary prospectus and the Prospectus will not be, an “investment company”
within the meaning of the Investment Company Act and will conduct its business
in a manner so that it will not become subject to the Investment Company
Act.
(aa)
Insurance. The Company is insured by recognized,
financially sound and reputable institutions with policies in such amounts
and
with such deductibles and covering such risks as are generally deemed adequate
and customary for its businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company against
theft, damage, destruction, acts of vandalism and earthquakes. All
policies of insurance and fidelity or surety bonds insuring the Company or
its
businesses, assets, employees, officers and directors are in full force and
effect; the Company is in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company
under any such policy or instrument as to which any insurance company is
denying
liability or defending under a reservation of rights clause; and the Company
has
not been refused any insurance coverage sought or applied for. The
Company has no reason to believe that it will not be able (i) to renew its
existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not have
a
Material Adverse Effect.
9
(bb)
No
Price Stabilization or
Manipulation. Neither the Company nor any affiliate has
taken and will not take, directly or indirectly, any action designed to or
that
might be reasonably expected to cause or result in stabilization or manipulation
of the price of the Units, the Common Stock or the Warrants to facilitate
the
sale or resale of the Units.
(cc)
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 preliminary prospectus or the Prospectus
that have not been described as required.
(dd)
Internal
Controls and
Procedures. The Company maintains (i) effective internal control
over financial reporting (as defined in Rule 13a-15 under the Exchange Act),
and
(ii) a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken
with respect to any differences.
(ee) No
Material Weakness in Internal Controls. Since the Company’s
inception, there has been (i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (ii) no
change
in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(ff)
Disclosure
Controls. The Company maintains an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15 under the
Exchange Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated
to the
Company’s management as appropriate to allow timely decisions regarding required
disclosure. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule
13a-15 under the Exchange Act.
(gg)
Accuracy
of
Exhibits. There are no contracts or documents which are required
to be described in the Registration Statement or the Prospectus or to be
filed
as exhibits thereto which have not been so described and filed as
required.
(hh) D&O
Questionnaires. All information contained in the questionnaires (the
“Questionnaires”) completed by the Founders (other than the Sponsor) and
the Company’s other officers, directors and special advisors and provided to the
Underwriters as an exhibit to his or her Insider Letter is true and correct,
and
the Company has not become aware of any information which would cause the
information disclosed in any of the Questionnaires to become inaccurate,
misleading or incomplete.
(ii)
Absence
of Non-Competition
Agreements. To the knowledge of the Company, no Initial
Stockholder, employee, officer or director of the Company is subject to any
non-competition or non-solicitation agreement with any current or prior
employer.
(jj) No
Contemplation of
a Business Combination. Prior to the date hereof, neither the
Company, nor, to the knowledge of the Company, any of its officers and
directors, the Initial Stockholders or their
10
respective
affiliates, or any other party acting, directly or indirectly, on behalf
of the
Company, had, and as of the Closing Date, the Company, and to the knowledge
of
the Company, such parties will not have had: (a) any specific Business
Combination under consideration or contemplation or (b) any substantive
interactions or discussions with any target business regarding a possible
Business Combination.
(kk) Finder’s
Fees. Except as disclosed in the Disclosure Package 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 of the Initial Stockholders with respect to the
sale
of the Units hereunder or any other arrangements, agreements or understandings
of the Company or, to the best of the Company’s knowledge, any of the Initial
Stockholders that may affect the Underwriters’ compensation, as determined by
the FINRA.
(ll) Brokers. Except
as disclosed in the Disclosure Package and the Prospectus, there is no broker,
finder or other party that is entitled to receive from the Company any brokerage
or finder’s fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
(mm) Insiders’
FINRA
Affiliation. Based on questionnaires distributed to such
persons, no officer, director or any beneficial owner of the Company’s
unregistered securities has any direct or indirect affiliation or association
with any FINRA member.
(nn) No
Unlawful Contributions
or Other Payments. Neither the Company nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company
is aware of or has taken any action, directly or indirectly, that would result
in a violation by such Persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as
such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of
the
FCPA, and the Company and, to the knowledge of the Company, its affiliates
have
conducted their businesses in compliance with the FCPA and have instituted
and
maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith. “FCPA” shall mean the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder.
(oo) No
Conflict with Money Laundering Laws. The operations of the
Company are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes
of
all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered
or
enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.
(pp) No
Conflict with OFAC Laws. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate
of
the Company is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available
such
proceeds, to any joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any
U.S.
sanctions administered by OFAC.
11
(qq) Compliance
with Environmental Laws. The Company (i) is in
compliance with any and all applicable foreign, federal, state and local
laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) is not required to obtain any
certificate, permit, license or other approvals pursuant to applicable
Environmental Laws in order to conduct its business, and (iii) has not
received notice of any actual or potential liability under any environmental
law. The Company has not been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(rr) No
Outstanding Loans or Other Indebtedness. There are no
outstanding loans, advances (except normal advances for business expenses
in the
ordinary course of business) or guarantees or indebtedness by the Company
to or
for the benefit of any of the officers or directors of the Company or any
of the
members of any of them, except as disclosed in the Disclosure Package and
the
Prospectus.
(ss) Lending
Relationship. The Company (i) does not have
any material lending or other relationship with any bank or lending
affiliate of any Underwriter and (ii) does not intend to use any of the
proceeds from the sale of the Units hereunder to repay any outstanding debt
owed
to any affiliate of any Underwriter.
(tt) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance. There is and has been no failure on the part of the
Company and any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
the
rules and regulations promulgated in connection therewith (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(uu) Statistical
and Market Related Data. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included in the Disclosure Package and the Prospectus
is not
based on or derived from sources that are reliable and accurate in all material
respects.
Any
certificate signed by an officer of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the
matters
set forth therein.
Section
2. Purchase, Sale and Delivery of the
Units.
(a) The
Firm Units. The Company agrees to issue and sell to the
several Underwriters the Firm Units upon the terms herein set
forth. On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein
set
forth, the Underwriters agree, severally and not jointly, to purchase from
the
Company the respective number of Firm Units set forth opposite their names
on
Schedule A. The purchase price per Firm Unit to be paid by the
several Underwriters to the Company shall be $9.30 per Unit.
(b) The
Closing Date. Delivery of certificates for the Firm
Units to be purchased by the Underwriters and payment therefor shall be made
at
the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(or
such other place as may be agreed to by the Company and the Representative)
at
9:00 a.m. New York time, on [typically, insert the fourth full business day
after the date of this Agreement, unless the pricing occurs at a time earlier
than 4:30 p.m., East Coast time, in which case insert the third full business
day after the date of this Agreement], or such other time and date not
later than 1:30 p.m. New York time, on [insert a date ten (10) business days
following the original
12
contemplated
Closing Date], as the Representative shall designate by notice to the
Company (the time and date of such closing are called the “Closing
Date”).
(c) The
Optional Units; the Subsequent Closing Date. In
addition, on the basis of the representations, warranties and agreements
herein
contained, and upon the terms but subject to the conditions herein set forth,
the Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 4,500,000 Optional Units
from
the Company at the purchase price per Unit to be paid by the Underwriters
for
the Firm Units. The option granted hereunder may be exercised at any
time and from time to time upon notice by the Representative to the Company,
which notice may be given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate number of
Optional Units as to which the Underwriters are exercising the option, (ii)
the
names and denominations in which the certificates for the Optional Units
are to
be registered, and (iii) the time, date and place at which such certificates
will be delivered (which time and date may be simultaneous with, but not
earlier
than, the Closing Date; and in such case the term “Closing Date” shall
refer to the time and date of delivery of certificates for the Firm Units
and
the Optional Units). Each time and date of delivery, if subsequent to
the Closing Date, is called a “Subsequent Closing Date” and shall be
determined by the Representative and shall not be earlier than three (3)
nor
later than five (5) full business days after delivery of such notice of
exercise. If any Optional Units are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Optional Units
(subject to such adjustments to eliminate fractional Units as the Representative
may determine) that bears the same proportion to the total number of Optional
Units to be purchased as the number of Firm Units set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firm
Units.
(d) Public
Offering of the Units. The Representative hereby
advises the Company that the Underwriters intend to offer for sale to the
public, as described in the Prospectus, their respective portions of the
Units
as soon after this Agreement has been executed and the Registration Statement
has been declared effective as the Representative, in its sole judgment,
has
determined is advisable and practicable.
(e) Payment
for the Units. Payment for the Units shall be made at
the Closing Date (and, if applicable, at any Subsequent Closing Date) by
wire
transfer of immediately available funds to the order of the
Company.
It
is
understood that the Representative has been authorized, for its own account
and
the accounts of the several Underwriters, to accept delivery of and receipt
for,
and make payment of the purchase price for, the Firm Units and any Optional
Units the Underwriters have agreed to purchase. BAS, individually and
not as the Representative of the Underwriters, may (but shall not be obligated
to) make payment for any Units to be purchased by any Underwriter whose funds
shall not have been received by the Representative by the Closing Date or
any
Subsequent Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from
any of
its obligations under this Agreement.
(f) Delivery
of the Units. Delivery of the Firm Units and the
Optional Units shall be made through the facilities of The Depository Trust
Company unless the Representative shall otherwise instruct. Time
shall be of the essence, and delivery at the time and place specified in
this
Agreement is a further condition to the obligations of the
Underwriters.
(g) Delivery
of Prospectus to the Underwriters. Not later than 3:00 p.m. on
the first business day in New York City following the date of this Agreement,
the Company shall deliver or cause to be delivered, copies of the Prospectus
in
such quantities and at such places as the Representative shall
request.
13
Section
3. Covenants of the
Company.
The
Company covenants and agrees with each Underwriter as follows:
(a) Review
of Proposed Amendments and Supplements. During the
period beginning on the Applicable Time and ending on the later of the Closing
Date or such date as, in the opinion of counsel for the Underwriters, the
Prospectus is no longer required by law to be delivered in connection with
sales
by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act (the
“Prospectus Delivery Period”), prior to amending or supplementing the
Registration Statement, the Disclosure Package or the Prospectus, subject
to
Section 3(e), the Company shall furnish to the Representative for review
a copy
of each such proposed amendment or supplement, and the Company shall not
file or
use any such proposed amendment or supplement to which the Representative
reasonably objects.
(b) Securities
Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representative in writing (i) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (ii) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, or any request
by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus, (iii) of the time and date of any filing
of any
post-effective amendment to the Registration Statement or any amendment or
supplement to any preliminary prospectus or the Prospectus, (iv) of the time
and
date that any post-effective amendment to the Registration Statement becomes
effective, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, or notice objecting to its
use,
or of any order or notice preventing or suspending the use of the Registration
Statement, any preliminary prospectus or the Prospectus, or of any proceedings
to remove, suspend or terminate from listing or quotation the Units, the
Common
Stock or the Warrants from any securities exchange upon which it is listed
for
trading or included or designated for quotation, or of the threatening or
initiation of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the Securities Act concerning the Registration
Statement, and (vi) if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the
Units. The Company shall use its best efforts to prevent the issuance
of any such stop order, or notice objecting to its use, or notice of prevention
or suspension of such use. If the Commission shall enter any such
stop order or issue any such notice at any time, the Company will use its
best
efforts to obtain the lifting or reversal of such order or notice at the
earliest possible moment, or, subject to Section 3(a), will file an amendment
to
the Registration Statement or will file a new registration statement and
use its
best efforts to have such amendment or new registration statement declared
effective as soon as practicable. Additionally, the Company agrees
that it shall comply with the provisions of Rules 424(b) and 430A, as
applicable, under the Securities Act, including with respect to the timely
filing of documents thereunder, and will use its reasonable efforts to confirm
that any filings made by the Company under such Rule 424(b) under the Securities
Act were received in a timely manner by the Commission.
(c) Exchange
Act Compliance. During the Prospectus Delivery Period, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
(d) Amendments
and Supplements to the Registration Statement, Disclosure Package and Prospectus
and Other Securities Act Matters. If, during the
Prospectus Delivery Period, any event or development shall occur or condition
exist as a result of which the Disclosure Package or the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or
omit to state any material fact necessary in order to make the statements
therein in the light of the circumstances under
14
which
they were made or then prevailing, as the case may be, not misleading, or
if it
shall be necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by
reference in the Disclosure Package or the Prospectus, in order to make the
statements therein, in the light of the circumstances under which they were
made
or then prevailing, as the case may be, not misleading, or if in the opinion
of
the Representative it is otherwise necessary or advisable to amend or supplement
the Registration Statement, the Disclosure Package or the Prospectus, or
to file
under the Exchange Act any document incorporated by reference in the Disclosure
Package or the Prospectus, or to file a new registration statement containing
the Prospectus, in order to comply with law, including in connection with
the
delivery of the Prospectus, the Company agrees to (i) notify the Representative
of any such event or condition and (ii) promptly prepare (subject to Section
3(a) and 3(e) hereof), file with the Commission (and use its best efforts
to
have any amendment to the Registration Statement or any new registration
statement to be declared effective) and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus, or any new registration
statement, necessary in order to make the statements in the Disclosure Package
or the Prospectus as so amended or supplemented, in the light of the
circumstances under which they were made or then prevailing, as the case
may be,
not misleading or so that the Registration Statement, the Disclosure Package
or
the Prospectus, as amended or supplemented, will comply with law.
(e)
Free
Writing
Prospectuses. The Company will not make any offer relating to
the Units that constitutes or would constitute a Free Writing Prospectus
or a
portion thereof required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act.
(f)
Filing
of Amendments. The
Company will give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the
Prospectus.
(g) Copies
of any Amendments and Supplements to the
Prospectus. The Company agrees to furnish the
Representative, without charge, during the Prospectus Delivery Period, as
many
copies of the Prospectus and any amendments and supplements thereto (including
any documents incorporated or deemed incorporated by reference therein) and
the
Disclosure Package as the Representative may request. The Prospectus
and any amendments or supplements thereto furnished to the Representative
will
be identical to the electronically transmitted copies thereof filed with
the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(h) Copies
of the Registration Statement and the Prospectus. The Company
will furnish to the Representative and counsel for the Underwriters signed
copies of the Registration Statement (including exhibits thereto) and, so
long
as delivery of a prospectus by an Underwriter or dealer may be required by
the
Securities Act, as many copies of each preliminary prospectus, the Prospectus
and any supplement thereto and the Disclosure Package as the Representative
may
reasonably request. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(i) Blue
Sky Compliance. The Company shall cooperate with the
Representative and counsel for the Underwriters to qualify or register the
Units
for sale under (or obtain exemptions from the application of) the state
securities or blue sky laws or Canadian provincial Securities laws of those
jurisdictions designated by the Representative, shall comply with such laws
and
shall continue such qualifications, registrations and exemptions in effect
so
long as required for the distribution of the Units. The Company
15
shall
not
be required to qualify as a foreign corporation or to take any action that
would
subject it to general service of process in any such jurisdiction where it
is
not presently qualified or where it would be subject to taxation as a foreign
corporation, other than those arising out of the offering or sale of the
Units
in any jurisdiction where it is not now so subject. The Company will
advise the Representative promptly of the suspension of the qualification
or
registration of (or any such exemption relating to) the Units for offering,
sale
or trading in any jurisdiction or any initiation or threat of any proceeding
for
any such purpose, and in the event of the issuance of any order suspending
such
qualification, registration or exemption, the Company shall use its best
efforts
to obtain the withdrawal thereof at the earliest possible moment.
(j) Use
of Proceeds. The Company shall apply the net proceeds
from the sale of the Units sold by it in the manner described under the caption
“Use of Proceeds” in the Disclosure Package and the Prospectus.
(k) Transfer
Agent; Warrant Agent. The Company shall engage and
maintain, at its expense, (i) a registrar and transfer agent for the Units
and
the Common Stock, and (ii) a warrant agent for the Warrants.
(l) Earnings
Statement. As soon as practicable, the Company will
make generally available to its security holders and to the Representative
an
earnings statement (which need not be audited) covering the twelve-month
period
ending [insert the date of the end of the Company’s first quarter ending
after one year following the effective date of the Registration Statement]
that satisfies the provisions of Section 11(a) of the Securities Act and
Rule
158 under the Securities Act.
(m) Periodic
Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and
the
American Stock Exchange all reports and documents required to be filed under
the
Exchange Act. Additionally, the Company shall report the use of
proceeds from the issuance of the Units as may be required under Rule 463
under
the Securities Act.
(n) Listing. The
Company will use its best efforts to list, subject to notice of issuance,
the
Securities on the American Stock Exchange.
(o) Agreement
Not to Offer or Sell Additional Units. During the
period commencing on the date hereof and ending on the 180th day following
the
date of the Prospectus, the Company will not, without the prior written consent
of the Representative (which consent may be withheld at the sole discretion
of
the Representative), directly or indirectly, sell, offer, contract or grant
any
option to sell, pledge, transfer or establish an open “put equivalent position”
or liquidate or decrease a “call equivalent position” within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of or transfer (or
enter
into any transaction that is designed to, or might reasonably be expected
to,
result in the disposition of), or announce the offering of, or file any
registration statement under the Securities Act in respect of, any shares
of
Common Stock, options or warrants to acquire shares of the Common Stock or
securities exchangeable or exercisable for or convertible into shares of
Common
Stock (other than as contemplated by this Agreement with respect to the
Units). Notwithstanding the foregoing, if (i) during the last 17 days
of the 180-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs, or (ii)
prior
to the expiration of the 180-day restricted period, the Company announces
that
it will release earnings results during the 16-day period beginning on the
last
day of the 180-day period, the restrictions imposed in this clause shall
continue to apply until the expiration of the 18-day period beginning on
the
date of the issuance of the earnings release or the occurrence of the material
news or material event. The Company will provide the Representative
and any co-managers and each individual subject to a lock-up restricted period
pursuant to an Insider Letter, or
16
otherwise,
with prior notice of any such announcement that gives rise to an extension
of
the restricted period.
(p)
Restriction
on Sale of
Securities. The Company agrees that until the earlier of the
consummation of the initial Business Combination or the distribution of the
funds in the Trust Account, it shall not issue any Units, shares of Common
Stock
or preferred stock, Warrants, or any options or other securities convertible
or
exchangeable into Common Stock or preferred stock, in each case which would
participate in any manner in liquidating distributions of the Trust Account
or
vote as a class with the Common Stock on the initial Business
Combination. Except for registration statements covering securities
to be issued upon, or in connection with, a Business Combination or which
shall
become effective upon or after the Business Combination, the Company
shall not file any registration statements under the Securities Act with
respect
to any of its securities prior to the initial Business Combination.
(q) Compliance
with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will comply with all applicable
securities and other laws, rules and regulations, including, without limitation,
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and use its best efforts to cause the Company’s
directors and officers, in their capacities as such, to comply with such
laws,
rules and regulations, including, without limitation, the provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(r) Future
Reports to Stockholders. The Company will furnish to its
stockholders as soon as practicable after the end of each fiscal year an
annual
report (including a balance sheet and statements of income, stockholders’ equity
and cash flows of the Company certified by independent public accountants)
and,
as soon as practicable after the end of each of the first three quarters
of each
fiscal year (beginning with the fiscal quarter ending after the effective
date
of the Registration Statement), to make available to its stockholders summary
financial information of the Company for such quarter in reasonable
detail.
(s) Future
Reports to the Representative. During the period of
five years hereafter the Company will furnish to the Representative at ▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇: (i) as soon as
practicable after the end of each fiscal year, copies of the Annual Report
of
the Company containing the balance sheet of the Company as of the close of
such
fiscal year and statements of income, stockholders’ equity and cash flows for
the year then ended and the opinion thereon of the Company’s independent public
or certified public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed by
the
Company with the Commission, the FINRA or any securities exchange; and (iii)
as
soon as available, copies of any report or communication of the Company mailed
generally to holders of any class of its securities.
(t) No
Manipulation of Price. The Company will not take,
directly or indirectly, any action designed to cause or result in, or that
has
constituted or might reasonably be expected to constitute, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the
Units.
(u) Existing
Lock-Up Agreement. The Company will enforce all
existing agreements between the Company and any of its security holders that
prohibit the sale, transfer, assignment, pledge or hypothecation of any of
the
Company’s securities in connection with the Company’s initial public
offering. In addition, the Company will direct the transfer agent to
place stop transfer restrictions upon any such securities of the Company
that
are bound by such existing “lock-up” agreements for the duration of the periods
contemplated in such agreements.
17
(v) Fee
on Business
Combination. Upon the consummation of the Company’s initial Business
Combination, the Company agrees that it will pay to the Underwriters out
of
funds in the Trust Account delivered to the Company the deferred underwriting
discount and commission deposited on the Closing Date into the Trust Account
in
an amount equal to (i) three and a half percent (3.5%) of the gross proceeds
from the sale of Units, minus (ii) $0.35 for each share of Common Stock
converted to cash (as described in the preliminary prospectus included in
the
Registration Statement at the time effectiveness).
(w)
Business
Combination. The
Company will not consummate its initial Business Combination with any entity
which is affiliated with any of the Initial Stockholders or any of the Company’s
other officers or directors unless (i) such Business Combination has been
approved by a majority of the Company’s independent directors, or (ii) the
Company obtains an opinion from an independent investment banking firm that
such
Business Combination is fair to the Company’s stockholders from a financial
perspective. The Company shall not pay any of the Initial
Stockholders or any of the Company’s other officers or directors or any of their
respective affiliates any fees or compensation, for services rendered to
the
Company prior to, or in connection with, the consummation of the initial
Business Combination; provided that the Initial Stockholders, any of the
Company’s other officers or directors or any of their respective affiliates
shall be entitled to reimbursement from the Company for their reasonable
out-of-pocket expenses incurred on behalf of the Company.
(x) Notice
to
FINRA. For a period of ninety (90) days after the date of the
Prospectus, in the event any person or entity (regardless of any FINRA
affiliation or association but excluding attorneys, accountants, engineers,
environmental or labor consultants, investigatory firms, technology consultants
and specialists and similar service providers that are not affiliated with
or
associated with the FINRA and are not brokers or finders) is engaged, in
writing, to assist the Company in its search for a merger candidate or to
provide any other merger and acquisition services, the Company will provide
the
following to the FINRA and the Underwriters prior to the consummation of
the
Business Combination: (i) reasonably complete details of all services
and copies of agreements governing such services (which may be appropriately
redacted to account for privilege or confidentiality concerns); and (ii)
justification as to why the person or entity providing the merger and
acquisition services should not be considered an “underwriter and related
person” with respect to the Company’s initial public offering, as such term is
defined in Rule 2710 of the NASD’s Conduct Rules. The Company also
agrees that, if required by law, proper disclosure of such arrangement or
potential arrangement will be made in the proxy statement which the Company
will
file for purposes of soliciting stockholder approval for the Business
Combination. Further, the Company agrees to promptly advise the FINRA
and the Underwriters and counsel to the Underwriters if it learns that any
officer, director or owner of at least 5% of the Company’s outstanding shares of
Common Stock becomes an affiliate or associated person of an FINRA member
participating in the distribution of the Securities. The Company will
not engage any FINRA member to assist the Company in identifying a merger
partner or a business opportunity in connection with the Company’s initial
Business Combination without submitting to FINRA a copy of any agreements
relating to the services to be provided and a statement as to the compensation
to be received by such member for providing such services.
(y) Investment
of Net Proceeds and 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 meeting certain conditions under Rule 2a-7 under the
Investment Company Act or securities issued or guaranteed by the United States.
The Company will conduct its business in a manner so that it will not become
subject to the Investment Company Act. Once the Company consummates a
Business Combination, it will be engaged in a business other than that of
investing, reinvesting, owning, holding or trading securities.
18
(z) Form
8-K. The Company shall, on the date hereof, instruct its
independent public accountants to audit the financial statements of the Company
as of the Closing Date (the “Audited Financial Statements”) reflecting
the receipt by the Company of the proceeds of the initial public
offering. As soon as such Audited Financial Statements become
available, the Company shall promptly file a Current Report on Form 8-K with
the
Commission in accordance with applicable rules under the Securities Act,
which
report shall contain such Audited Financial Statements. Additionally,
upon the Company’s receipt of the proceeds from the exercise of all or any
portion of the Optional Units, the Company shall immediately file a Current
Report on Form 8-K with the Commission, which report shall disclose the
Company’s sale of the Optional Units and its receipt of the proceeds
therefrom.
(aa) Trust
Account
Waiver Acknowledgment. The Company hereby agrees that it will not commence
its due diligence investigation of any operating business which the Company
seeks to acquire (the “Target Business”) unless and until such Target
Business acknowledges in writing, whether through a letter of intent, memorandum
of understanding or other similar document (and subsequently acknowledges
the
same in any definitive document replacing any of the foregoing), that (a)
it has
read the Prospectus and understands that the Company has established a Trust
Account, initially in an amount of $296,450,589 ($339,875,589 if the
Underwriters exercise their option to purchase the Optional Units in full),
including deferred underwriting discounts and commissions of $10,500,000
($12,075,000 if the Underwriters exercise their option to purchase the Optional
Units in full), for the benefit of the public stockholders and that the Company
may disburse monies from the Trust Account only (i) to the public stockholders
in the event they elect to convert their IPO Units (as defined in Section
3(ff)
below) or the Company liquidates or (ii) to the Company after it consummates
a
Business Combination, and (b) for and in consideration of the Company agreeing
to evaluate such Target Business for purposes of consummating a Business
Combination with it, such Target Business agrees that it does not have any
right, title, interest or claim of any kind in or to any monies in the Trust
Account (the “Claims”) and waives any Claim it may have in the future as
a result of, or arising out of, any negotiations, contracts or agreements
with
the Company and will not seek recourse against the Trust Account for any
reason
whatsoever. Notwithstanding the foregoing, in the event any Target
Business refuses to acknowledge in writing that it does not have any rights,
title, interest or claims of any kind in or to any monies in the Trust Account,
the Company may nonetheless commence its due diligence investigations of
such
Target Business if and only if the Company’s management determines in good faith
that the Company would be unable to obtain, on a reasonable basis, substantially
similar opportunities from another entity willing to execute such a
waiver.
(bb) Insider
Letters;
Right of First Offer Agreement. The Company will not allow any
amendments to, or waivers of, any of the Insider Letters or the Right First
Offer Agreement without the prior written consent of the Representative,
which
consent shall not be unreasonably withheld, conditioned or delayed.
(cc)
Charter
and
Bylaws. The Company shall not take any action or omit to take
any action that would cause the Company to be in breach or violation of its
charter or by-laws. Prior to the consummation of a Business
Combination or the distribution of the amounts in the Trust Account, the
Company
will not amend its charter without the prior written consent of the
Representative, which consent shall not be unreasonably withheld, conditioned
or
delayed.
(dd) Proxy
Information;
Blue Sky Requirements. The Company shall provide counsel to the
Underwriters with ten (10) copies of all proxy information and all related
material filed with the Commission in connection with a Business Combination
concurrently with such filing with the Commission. In addition, the
Company shall furnish any state in which its initial public offering was
registered such information as may be requested by such state.
19
(ee)
Acquisition/Liquidation Procedure. The
Company agrees: (i) that, prior to the consummation of its initial Business
Combination, it will submit any proposed Business Combinations to the Company’s
stockholders for their approval (the “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 consummate a Business Combination within twenty-four
(24) months from the date of the Prospectus, the Company will promptly liquidate
and will distribute to all holders of IPO Units (as defined herein) an aggregate
sum equal to the Company’s Liquidation Value (as defined herein). The
Company’s “Liquidation Value” shall be the Company’s book value, as
determined by the Company and approved by its independent
accountant. In no event, however, will the Company’s Liquidation
Value be less than the amount of funds in the Trust Account, inclusive of
any
net interest income (net of taxes payable on such interest income and after
release to the Company of an aggregate amount up to $2,250,000 of interest
income, after taxes payable, to fund the Company’s working capital requirements)
thereon except to the extent there are creditors’ claims not satisfied by
amounts outside the Trust Account. Only holders of IPO Units shall be
entitled to receive liquidating distributions and the Company shall pay no
liquidating distributions with respect to any other shares of capital stock
of
the Company. There will be no distribution from the Trust Account
with respect to the Warrants, which will expire worthless if the Company
is
liquidated. In addition, in connection with the Business Combination
Vote and the vote required to amend the Company’s charter to provide for the
Company’s perpetual existence, the Company shall cause the Initial Stockholders
to vote the shares of Common Stock owned by them immediately prior to the
consummation of the offering in accordance with the vote of the holders of
a
majority of the IPO Units present, in person or by proxy, at a meeting of
the
Company’s stockholders called for such purposes. At any time when the
Company seeks approval of its initial Business Combination, the Company will
offer each holder of the Company’s Common Stock issued in this offering (the
“IPO Units”) that votes against such Business Combination the right to
convert such holder’s IPO Units at a per Unit price (the “Conversion
Price”) equal to the amount in the Trust Account, including all accrued
interest income (net of taxes payable on such interest income and after release
to the Company of up to $2,250,000 of interest income, after taxes payable,
to
fund the Company’s working capital requirements), as of two business days prior
to the consummation of the initial Business Combination, divided by the total
number of IPO Units. If holders of less than 30% in interest of the
Company’s IPO Units elect to convert their IPO Units into cash at the Conversion
Price and the other conditions in the Prospectus are satisfied, the Company
may
proceed with such Business Combination. In the event that the
Business Combination is consummated, for each holder of IPO Units who
affirmatively requested that such Units be converted and who voted against
the
Business Combination, the Company will convert such holder’s IPO Units into cash
at the Conversion Price. If holders of 30% or more in interest of the
IPO Units vote against approval of a potential Business Combination and elect
to
convert their IPO Units into cash at the Conversion Price, the Company will
not
proceed with such Business Combination and will not convert such IPO
Units.
(ff) 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, including but not
limited
to using its best efforts to prevent any of the Company’s outstanding securities
from being deemed to be a “▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under the
Exchange Act during such period.
(gg) Target
Value
Requirement. The Company agrees that the initial Target Business
or Businesses that it acquires must have a fair market value equal, in the
aggregate, to at least 80% of the balance in the Trust Account at the time
of
such acquisition (excluding the amount held in the Trust Account that is
potentially payable to the Underwriters pursuant to Section 3(v)
hereof). The fair market value of such business must be determined by
the Board of Directors of the Company based upon standards generally accepted
by
the financial community, such as actual and potential sales, earnings and
20
cash
flow
and book value. If the Board of Directors of the Company is not able
to independently calculate that the Target Business or Businesses have, in
the
aggregate, a fair market value of at least 80% of the balance in the Trust
Account at the time of such acquisition (excluding the amount held in the
Trust
Account that is potentially payable to the Underwriters pursuant to Section
3(v)
hereof), the Company will obtain an opinion from an unaffiliated, independent
third party appraiser which may be a member of the FINRA with respect to
the
satisfaction of such criteria. The Company is not required to obtain
an opinion from an investment banking firm as to the fair market value if
the
Company’s Board of Directors independently determines that the Target Business
or Businesses have sufficient fair market value.
Section
4. Payment of Expenses. The Company
agrees to pay all costs, fees and expenses incurred in connection with the
performance of its obligations hereunder and in connection with the transactions
contemplated hereby, including without limitation (a) all expenses incident
to
the issuance and delivery of the Units (including all printing and engraving
costs), (b) all fees and expenses of (i) the registrar and transfer agent
of the
Units and the Common Stock, and (ii) the warrant agent of the Warrants, (c)
all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Units to the Underwriters, (d) all fees and expenses of the
Company’s counsel, independent public or certified public accountants and other
advisors, (e) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents
and
certificates of experts), each preliminary prospectus and the Prospectus,
and
all amendments and supplements thereto, and this Agreement, (f) all filing
fees,
attorneys’ fees and expenses incurred by the Company in connection with
qualifying or registering (or obtaining exemptions from the qualification
or
registration of) all or any part of the Units for offer and sale under the
state
securities or blue sky laws or the provincial securities laws of Canada,
and, if
requested by the Representative, preparing and printing a “Blue Sky Survey” or
memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (g) the filing fees incident
to,
and the reasonable fees and expenses of counsel for the Underwriters in
connection with, the FINRA’s review and approval of the Underwriters’
participation in the offering and distribution of the Units, (h) the fees
and
expenses associated with the listing of the Units, the Common Stock and the
Warrants on the American Stock Exchange, (i) all transportation and other
expenses incurred in connection with presentations to prospective purchasers
of
the Units, except that the Company and the Underwriters will each pay 50%
of the
cost of privately chartered airplanes used for such purposes, and (j) all
other
fees, costs and expenses referred to in Item 13 of Part II of the Registration
Statement. Except as provided in this Section 4, Section 6, Section 8
and Section 9 hereof, the Underwriters shall pay their own expenses, including
the fees and disbursements of their counsel.
Section
5. Conditions of the Obligations of the
Underwriters. The obligations of the several
Underwriters to purchase and pay for the Units as provided herein on the
Closing
Date and, with respect to the Optional Units, any Subsequent Closing Date,
shall
be subject to the accuracy of the representations and warranties on the part
of
the Company set forth in Section 1 hereof as of the date hereof and as of
the
Closing Date as though then made and, with respect to the Optional Units,
as of
any Subsequent Closing Date as though then made, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the timely performance by the Company of its covenants and other
obligations hereunder, and to each of the following additional
conditions:
(a) Accountants’
Comfort Letter. On the date hereof, the Representative
shall have received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, independent public
accountants for the Company, a letter dated the date hereof addressed to
the
Underwriters, the form of which is attached as Exhibit A.
21
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from
FINRA. For the period from and after effectiveness of
this Agreement and prior to the Closing Date and, with respect to the Optional
Units, any Subsequent Closing Date:
(i) the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner
and
within the time period required by Rule 424(b) (without reliance on Rule
424(b)(8)) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430A under the Securities Act, and such
post-effective amendment shall have become effective;
(ii) the
Registration Statement, including any 462(b) Registration Statement, shall
have
become effective;
(iii) no
stop order suspending the effectiveness of the Registration Statement, or
notice
objecting to its use, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose shall have
been instituted or threatened by the Commission; and
(iv) the
FINRA shall have raised no objection to the fairness and reasonableness of
the
underwriting terms and arrangements.
(c) No
Material Adverse Change. For the period from and after
the date of this Agreement and prior to the Closing Date and, with respect
to
the Optional Units, any Subsequent Closing Date:
(i) in
the sole judgment of the Representative there shall not have occurred any
Material Adverse Change; and/or
(ii) there
shall not have been any change or decrease specified in the letter or letters
referred to in paragraph (a) of this Section 5 which is, in the sole judgment
of
the Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Units as
contemplated by the Registration Statement and the Prospectus.
(d) Opinion
of Counsel for the Company. On the Closing Date and any
Subsequent Closing Date, the Underwriters shall have received the favorable
opinion of Sidley Austin LLP, counsel for the Company, dated as of such Closing
Date or Subsequent Closing Date, the form of which is attached hereto as
Exhibit B.
(e) Opinion
of Counsel for the Underwriters. On the Closing Date
and any Subsequent Closing Date, the Underwriters shall have received the
favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
dated
as of such Closing Date or Subsequent Closing Date, in form and substance
satisfactory to, and addressed to, the Representative, with respect to the
issuance and sale of the Units, the Registration Statement, the Prospectus
(together with any supplement thereto), the Disclosure Package and other
related
matters as the Representative may reasonably require, and the Company shall
have
furnished to such counsel such documents as they request for the purpose
of
enabling them to pass upon such matters.
(f) Officers’
Certificate. On the Closing Date and any Subsequent
Closing Date, the Representative shall have received a written certificate
executed by each of (x) the Chairman of the Board, Chief Executive Officer
or
President of the Company, and (y) the Chief Financial Officer, Chief
22
Accounting
Officer or principal financial officer of the Company, dated as of such Closing
Date or Subsequent Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus
and any amendment or supplement thereto, and this Agreement, to the effect
set
forth in subsection (b) of this Section 5, and further to the effect
that:
(i) for
the period from and after the date of this Agreement and prior to such Closing
Date or Subsequent Closing Date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section
1
of this Agreement are true and correct on and as of such Closing Date or
Subsequent Closing Date with the same force and effect as though expressly
made
on and as of such Closing Date or Subsequent Closing Date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all
the
conditions on its part to be performed or satisfied hereunder at or prior
to
such Closing Date or Subsequent Closing Date.
(g) Bring-down
Comfort Letter. On the Closing Date and any Subsequent
Closing Date, the Representative shall have received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, independent public accountants for the Company, a letter dated
such
date, in form and substance satisfactory to the Representative, to the effect
that they reaffirm the statements made in the letter furnished by them pursuant
to subsection (a) of this Section 5, except that the specified date referred
to
therein for the carrying out of procedures shall be no more than three business
days prior to such Closing Date or Subsequent Closing Date.
(h) Listing
of
Units. The Units shall have been listed and admitted and
authorized for trading on the American Stock Exchange, and satisfactory evidence
of such actions shall have been provided to the Representative.
(i) Additional
Documents. On or before the Closing Date and any
Subsequent Closing Date, the Representative and counsel for the Underwriters
shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance
and sale of the Units as contemplated herein, or in order to evidence the
accuracy of any of the representations and warranties, or the satisfaction
of
any of the conditions or agreements, herein contained and such other matters
as
may be reasonably requested by the Underwriters or their counsel.
If
any
condition specified in this Section 5 is not satisfied when and as required
to
be satisfied, this Agreement may be terminated by the Representative by notice
to the Company at any time on or prior to the Closing Date and, with respect
to
the Optional Units, at any time prior to the applicable Subsequent Closing
Date,
which termination shall be without liability on the part of any party to
any
other party, except that Section 4, Section 6, Section 8 and Section 9 shall
at
all times be effective and shall survive such termination.
Section
6. Reimbursement of Underwriters’
Expenses. If this Agreement is terminated pursuant to
Section 5, Section 7, Section 10, or Section 11, or if the sale to the
Underwriters of the Units on the Closing Date or on any Subsequent Closing
Date
is not consummated because of any refusal, inability or failure on the part
of
the Company to perform any agreement herein or to comply with any provision
hereof, the Company agrees to reimburse the Representative and the other
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representative and the
Underwriters in connection with the proposed purchase and the offering and
sale
of the Units, including
23
but
not
limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section
7. Effectiveness of this Agreement. This
Agreement shall not become effective until the later of (a) the execution
of
this Agreement by the parties hereto and (b) notification by the Commission
to
the Company and the Representative of the effectiveness of the Registration
Statement under the Securities Act.
Prior
to
such effectiveness, this Agreement may be terminated by any party by notice
to
each of the other parties hereto, and any such termination shall be without
liability on the part of (i) the Company to any Underwriter, except that
the
Company shall be obligated to reimburse the expenses of the Representative
and
the Underwriters pursuant to Sections 4 and 6 hereof, or (ii) any Underwriter
to
the Company.
Section
8. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its directors, officers, employees and
agents, and each person, if any, who controls any Underwriter within the
meaning
of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which such Underwriter, director, officer,
employee, agent or controlling person may become subject, insofar as such
loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (i) upon any untrue statement
or
alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information deemed to
be a
part thereof pursuant to Rule 430A, Rule 430B or Rule 430C under the Securities
Act, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading;
or (ii) upon any untrue statement or alleged untrue statement of a material
fact
contained in any preliminary prospectus or the Prospectus (or any amendment
or
supplement thereto) or any “road show” (as defined in Rule 433 under the
Securities Act), or the omission or alleged omission therefrom of a material
fact, in each case, necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading, and
to
reimburse each Underwriter, its officers, directors, employees, agents and
each
such controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by the Representative) as such expenses are
reasonably incurred by such Underwriter, or its officers, directors, employees,
agents or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability
or
expense to the extent, but only to the extent, arising out of or based upon
any
untrue statement or alleged untrue statement or omission or alleged omission
based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representative expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto), or any road show, it being understood and
agreed that the only such information furnished by any Underwriter consists
of
the information described as such in Section 8(b) hereof. The
indemnity agreement set forth in this Section 8(a) shall be in addition to
any
liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within
the meaning of the Securities Act or the Exchange Act, against any loss,
claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may
24
become
subject, insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon
any
untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto) or any road show, or arises out of or is
based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, and only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto) or any road show, in reliance upon and in
conformity with written information furnished to the Company by the
Representative expressly for use therein; and to reimburse the Company, or
any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising
or
paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information
that the Underwriters have furnished to the Company expressly for use in
the
Registration Statement, any preliminary prospectus or the Prospectus (or
any
amendment or supplement thereto) or any road show are the statements set
forth
in the paragraphs entitled “Stabilization” and “Discretionary Accounts” under
the caption “Underwriting” in the Prospectus. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that
each
Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but
the
failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture
by
the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party and such indemnified
party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall
elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving
the
aforesaid notice from such indemnified party, to assume the defense thereof
with
counsel satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party
and
the indemnified party in conducting the defense of any such action or that
there
may be legal defenses available to it and/or other indemnified parties that
are
different from or additional to those available to the indemnifying party,
the
indemnified party or parties shall have the right to select separate counsel
to
assume such legal defenses and to otherwise participate in the defense of
such
action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will
not be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the
expenses of more than one separate counsel (other than local counsel),
reasonably approved by the indemnifying party (or by the Representative in
the
case of Section 8(b)), representing the indemnified parties who are parties
to
such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
25
within
a
reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be
withheld unreasonably, but if settled with such consent or if there is a
final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment
in
any pending or threatened action, suit or proceeding in respect of which
any
indemnified party is or could have been a party and indemnity was or could
have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent (x) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an admission
of
fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section
9. Contribution. If the indemnification
provided for in Section 8 is for any reason unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable
by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (a) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on
the one
hand, and the Underwriters, on the other hand, from the offering of the Units
pursuant to this Agreement or (b) if the allocation provided by clause (a)
above
is not permitted by applicable law, in such proportion as is appropriate
to
reflect not only the relative benefits referred to in clause (a) above but
also
the relative fault of the Company, on the one hand, and the Underwriters,
on the
other hand, in connection with the statements or omissions or inaccuracies
in
the representations and warranties herein which resulted in such losses,
claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Units pursuant to this Agreement shall be deemed to be in
the
same respective proportions as the total net proceeds from the offering of
the
Units pursuant to this Agreement (before deducting expenses) received by
the
Company, and the total underwriting discount received by the Underwriters,
in
each case as set forth on the front cover page of the Prospectus bear to
the
aggregate initial public offering price of the Units as set forth on such
cover. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such
inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters,
on
the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c),
26
any
legal
or other fees or expenses reasonably incurred by such party in connection
with
investigating or defending any action or claim.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any
other method of allocation that does not take account of the equitable
considerations referred to in this Section 9.
Section
10. Default of One or More of the Several
Underwriters. If, on the Closing Date or a Subsequent
Closing Date, as the case may be, any one or more of the several Underwriters
shall fail or refuse to purchase Units that it or they have agreed to purchase
hereunder on such date, and the aggregate number of Units which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase does
not
exceed 10% of the aggregate number of the Units to be purchased on such date,
the other Underwriters shall be obligated, severally, in the proportions
that
the number of Firm Units set forth opposite their respective names on
Schedule A bears to the aggregate number of Firm Units set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as may be specified by the Representative with the consent of the non-defaulting
Underwriters, to purchase the Units which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on
the
Closing Date or a Subsequent Closing Date, as the case may be, any one or
more
of the Underwriters shall fail or refuse to purchase Units and the aggregate
number of Units with respect to which such default occurs exceeds 10% of
the
aggregate number of Units to be purchased on such date, and arrangements
satisfactory to the Representative and the Company for the purchase of such
Units are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 4, Section 6, Section 8 and Section 9 shall at all
times
be effective and shall survive such termination. In any such case
either the Representative or the Company shall have the right to postpone
the
Closing Date or a Subsequent Closing Date, as the case may be, but in no
event
for longer than seven days in order that the required changes, if any, to
the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected.
As
used
in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any
action taken under this Section 10 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
Section
11. Termination of this Agreement. Prior
to the Closing Date and, with respect to the Optional Units, any Subsequent
Closing Date, this Agreement may be terminated by the Representative
27
by
notice
given to the Company if at any time (i) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission or
by the American Stock Exchange, or trading in securities generally on the
New
York Stock Exchange or the American Stock Exchange shall have been suspended
or
limited, or minimum or maximum prices shall have been generally established
by
the Commission or the FINRA or on any such stock exchange; (ii) a general
banking moratorium shall have been declared by federal or New York authorities
or a material disruption in commercial banking or securities settlement or
clearance services in the United States has occurred; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities
or
declaration of a national emergency or war by the United States or any crisis
or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in United States’ or international political, financial or economic
conditions, as in the judgment of the Representative is material and adverse
and
makes it impracticable or inadvisable to market the Units in the manner and
on
the terms described in the Prospectus or to enforce contracts for the sale
of
securities; or (iv) there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given
in the
Disclosure Package or the Prospectus, any Material Adverse
Change. Any termination pursuant to this Section 11 shall be without
liability on the part of (a) the Company to any Underwriter, except that
the
Company shall be obligated to reimburse the expenses of the Representative
and
the Underwriters pursuant to Sections 4 and 6 hereof, or (b) any Underwriter
to
the Company.
Section
12. No Advisory or Fiduciary Responsibility. The
Company acknowledges and agrees that: (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the
initial public offering price of the Securities and any related discounts
and
commissions, is an arm’s-length commercial transaction between the Company, on
the one hand, and the several Underwriters, on the other hand, and the Company
is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each transaction contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely
as a
principal and is not the financial advisor, agent or fiduciary of the Company
or
its affiliates, stockholders, creditors or employees or any other party;
(iii)
no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in
this
Agreement; (iv) the several Underwriters and their respective affiliates
may be
engaged in a broad range of transactions that involve interests that differ
from
those of the Company and that the several Underwriters have no obligation
to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby
and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the several Underwriters, or any of them, with
respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
Section
13. Research Analyst Independence. The
Company acknowledge that the Underwriters’ research analysts and research
departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies,
and that such Underwriters’ research analysts may hold views and make statements
or investment recommendations
28
and/or
publish research reports with respect to the Company and/or the offering
that
differ from the views of their respective investment banking
divisions. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may arise from
the
fact that the views expressed by their independent research analysts and
research departments may be different from or inconsistent with the views
or
advice communicated to the Company by such Underwriters’ investment banking
divisions. The Company acknowledges that each of the Underwriters is
a full service securities firm and as such from time to time, subject to
applicable securities laws, may effect transactions for its own account or
the
account of its customers and hold long or short positions in debt or equity
securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
Section
14. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements,
representations, warranties and other statements of the Company, of its
officers, and of the several Underwriters set forth in or made pursuant to
this
Agreement (a) will remain operative and in full force and effect, regardless
of
any (i) investigation, or statement as to the results thereof, made by or
on
behalf of any Underwriter, the officers or employees of any Underwriter,
or any
person controlling the Underwriter, the Company, the officers or employees
of
the Company, or any person controlling the Company, as the case may be or
(ii)
acceptance of the Units and payment for them hereunder, and (b) will survive
delivery of and payment for the Units sold hereunder and any termination
of this
Agreement.
Section
15. Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered or telecopied
and confirmed to the parties hereto as follows:
If
to BAS
or to the Representative:
Banc
of
America Securities LLC
▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Syndicate
Department
with
a
copy to:
Banc
of
America Securities LLC
▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (212)
[ - ]
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
If
to the
Company:
29
▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
with
a
copy to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
16. Successors and Assigns. This
Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 10 hereof, and
to the
benefit of (a) the Company, its directors, any person who controls the Company
within the meaning of the Securities Act or the Exchange Act and any officer
of
the Company who signs the Registration Statement, (b) the Underwriters, the
officers, directors, employees and agents of the Underwriters, and each person,
if any, who controls any Underwriter within the meaning of the Securities
Act or
the Exchange Act , and (c) the respective successors and assigns of any of
the
above, all as and to the extent provided in this Agreement, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term “successors and assigns” shall not include a
purchaser of any of the Units from any of the several Underwriters merely
because of such purchase.
Section
17. Partial Unenforceability. The
invalidity or unenforceability of any Section, paragraph or provision of
this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section
18. Governing Law Provisions; Consent to
Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
Any
legal
suit, action or proceeding arising out of or based upon this Agreement or
the
transactions contemplated hereby (“Related Proceedings”) may be
instituted in the federal courts of the United States of America located
in the
City and County of New York, Borough of Manhattan, or the courts of the State
of
New York in each case located in the City and County of New York, Borough
of
Manhattan (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
“Related Judgment”), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth
above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and
30
unconditionally
waive and agree not to plead or claim in any such court that any such suit,
action or other proceeding brought in any such court has been brought in
an
inconvenient forum.
Section
19. General Provisions. This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the
parties
hereto, and no condition herein (express or implied) may be waived unless
waived
in writing by each party whom the condition is meant to benefit. The
Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement.
Each
of
the parties hereto acknowledges that it is a sophisticated business person
who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate
the
risks in light of the ability of the parties to investigate the Company,
its
affairs and its business in order to assure that adequate disclosure has
been
made in the Registration Statement, any preliminary prospectus and the
Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
[Remainder
of page intentionally left blank]
31
If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
|
Very
truly yours,
By:____________________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Chief Executive Officer
|
The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representative as of the date first above written.
BANC
OF
AMERICA SECURITIES LLC
Acting
as
Representative of the
several
Underwriters named in
the
attached Schedule A.
|
By:
|
Banc
of America Securities LLC
|
|
By:
|
______________________________
Managing
Director
|
SCHEDULE
A
|
Underwriters
|
Number
of
Firm Units to be Purchased |
|
Banc
of America Securities
LLC
|
[___]
|
|
[___]
|
[___]
|
|
[___]
|
[___]
|
|
|
|
|
Total
|
[___]
|
1
EXHIBIT
A
Form
of Accountants’ Comfort Letter
A-1
EXHIBIT
B
Form
of Opinion of Counsel for the Company
B-1