30,000,000 Units GLOBAL CONSUMER ACQUISITION CORP. UNDERWRITING AGREEMENT
Exhibit
1.1
30,000,000 Units
October ___, 2007
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
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Ladies and Gentlemen:
Global Consumer Acquisition Corp., a Delaware corporation (the “Company”), proposes to sell to
the several underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as
representative (the “Representative”) an aggregate of thirty million units of the Company (the
“Firm Units”), with each unit consisting of one share of the Company’s common stock, $0.0001 par
value per share (the “Common Stock”), and one warrant (collectively, the “Warrants”) to purchase
Common Stock. The respective amounts of the Firm Units to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The Company also proposes to
sell at the Underwriters’ option an aggregate of up to four million, five hundred thousand
(4,500,000) additional units of the Company (the “Option Units”) as set forth below. The terms of
the Warrants are provided for in the form of Warrant Agreement (defined below).
As the Representative, you have advised the Company (a) that you are authorized to enter into
this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm Units set forth opposite
their respective names in Schedule I, plus their pro rata portion of the Option Units if you elect
to exercise the over-allotment option, in whole or in part, for the accounts of the several
Underwriters. The Firm Units and the Option Units (to the extent the aforementioned option is
exercised) are herein collectively called the “Units,” and the Units, the shares of Common Stock
and the Warrants included in the Units and the shares of Common Stock issuable upon exercise of the
Warrants are hereinafter collectively referred to as the “Securities.”
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In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to each of the Underwriters as follows:
(a) A registration statement on Form S-1 (File No. 333-144799) with respect to the Securities
has been prepared by the Company in conformity with the requirements of the Securities Act of 1933,
as amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein
and the exhibits, financial statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein
referred to as the “Registration Statement,” which shall be deemed to include all information
omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act and contained in the
Prospectus referred to below, has become effective under the Act and no post-effective amendment to
the Registration Statement has been filed as of the date of this Agreement. “Prospectus” means the
form of prospectus first filed with the Commission pursuant to and within the time limits described
in Rule 424(b) under the Act. Each preliminary prospectus included in the Registration Statement
prior to the time it becomes effective is herein referred to as a “Preliminary Prospectus.” Any
reference herein to the Registration Statement, any Preliminary Prospectus or to the Prospectus or
to any amendment or supplement to any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in the case of any reference herein
to the Prospectus, also shall be deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the Commission after the date of filing of
the Prospectus under Rule 424(b) under the Act, and prior to the termination of the offering of the
Units by the Underwriters.
The Company has filed with the Commission a Form 8-A (File Number 000-[ ]) providing
for the registration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of
the Securities. The Units, the Warrants and the Common Stock have been duly listed, and admitted
and authorized for trading, subject only to official notice of issuance, on the American Stock
Exchange, and the Company knows of no reason or set of facts which is likely to adversely affect
such approval. Neither the Commission nor any state regulatory authority has issued any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or has instituted
or, to the Company’s knowledge, threatened to institute any proceedings with respect to such an
order. Neither the Commission nor any state regulatory authority has issued any order preventing
or suspending the effectiveness of the Registration Statement and no proceeding for that purpose or
pursuant to Section 8A of the Act has been instituted or is pending or, to the Company’s knowledge,
is contemplated or threatened by the Commission.
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(b) As of the Applicable Time (as defined below) and as of the Closing Date or the Option
Closing Date (each as defined below), as the case may be, the Statutory Prospectus (as defined
below) and the information included on Schedule II hereto, considered together (collectively, the
“General Disclosure Package”) did not and will not include any untrue statement of a material fact
and did not and will not 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. As used in
this subsection and elsewhere in this Agreement:
“Applicable Time” means [ ] [a/p]m (New York time) on the date of this Agreement or
such other time as agreed to by the Company and the Representative.
“Statutory Prospectus” as of any time means the Preliminary Prospectus relating to the
Securities that is included in the Registration Statement immediately prior to that time.
(c) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to (i) own or
lease its properties and conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and (ii) enter into this Agreement and the Warrant
Agreement (as defined herein), the Trust Agreement (as defined herein) and the Services Agreement
(as defined herein) and to carry out the transactions contemplated herein and therein. The Company
does not own an interest in any corporation, partnership, limited liability company, joint venture,
trust or other business entity. The Company is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such qualification, and has all
necessary authorizations, approvals, orders, licenses, certificates and permits of and from all
governmental regulatory officials and bodies that it needs as of the date hereof to conduct its
business purpose as described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(d) All issued and outstanding securities of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with
respect thereto, and are not subject to personal liability by reason of being such holders; and
none of such securities were issued in violation of the preemptive rights of any holders of any
security of the Company or similar contractual rights granted by the Company. The offers and sales
of the outstanding Common Stock and warrants were at all relevant times either registered under the
Act and the applicable state securities or Blue Sky laws or exempt from such registration
requirements.
(e) The shares of Common Stock that constitute the Securities have been duly authorized, and
when issued and paid for in accordance with the terms hereof and in accordance with the Securities,
will be validly issued, fully paid and non-assessable; the holders of such shares of Common Stock
are not and will not be subject to personal liability by reason of being such holders; the
Securities are not and will not be subject to the preemptive rights of any holders of any security
of the Company or similar contractual rights granted by the Company; and all corporate action
required to be taken for the authorization, issuance and sale of the Securities has been duly and
validly taken.
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(f) When issued, the Warrants will constitute valid and binding obligations of the Company to
issue and sell, upon exercise thereof and payment of the respective exercise prices therefor in
accordance with the terms thereof, the number and type of securities of the Company called for
thereby in accordance with the terms thereof and such Warrants are enforceable against the Company
in accordance with their respective terms, except: (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii)
as enforceability of any indemnification or contribution provision may be limited under the federal
and state securities laws; and (iii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(g) Except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, no holders of any securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the right to require the Company to
register any such securities of the Company under the Act or to include any such securities in a
registration statement to be filed by the Company.
(h) The information set forth under the caption “Capitalization” in the Registration Statement
and the Prospectus (and any similar section or information contained in the General Disclosure
Package) is true and correct. All of the Securities conform to the description thereof contained
in the Registration Statement, the General Disclosure Package and the Prospectus. The form of
certificates for the Common Stock conforms to the corporate law requirements of the jurisdiction of
the Company’s incorporation and the requirements of the American Stock Exchange. Except as set
forth in, or contemplated by, the Registration Statement, the General Disclosure Package and the
Prospectus, on the effective date of the Registration Statement (the “Effective Date”) and on the
Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire
any authorized, but unissued, shares of Common Stock of the Company or any security convertible
into shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares
of Common Stock or any such options, warrants, rights or convertible securities.
(i) The Commission has not issued an order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus relating to the proposed offering of the Securities, and no proceeding
for that purpose or pursuant to Section 8A of the Act has been instituted or, to the Company’s
knowledge, threatened by the Commission. The Registration Statement contains, and the Prospectus
and any amendments or supplements thereto will contain, all statements which are required to be
stated therein by, and will conform to, the requirements of the Act and the Rules and Regulations.
The Registration Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to state a material fact
required to be stated therein or necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not contain, and will not contain, any
untrue statement of a material fact; and do not omit, and will not 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; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on
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behalf of any Underwriter through the Representative, specifically for use therein, it being
understood and agreed that the only such information is that described in Section 13 herein.
(j) The agreements and documents described in the Registration Statement, the General
Disclosure Package and the Prospectus conform in all material respects to the descriptions thereof
contained therein and there are no agreements or other documents required to be described in the
Registration Statement, the General Disclosure Package or the Prospectus or to be filed with the
Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a
party or by which its property or business is or may be bound or affected and (i) that is referred
to in the General Disclosure Package or the Prospectus, or (ii) is material to the Company’s
business, has been duly and validly executed by the Company, is in full force and effect and is
enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in
accordance with its terms, except (x) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as
enforceability of any indemnification or contribution provision may be limited under the federal
and state securities laws, and (z) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought, and none of such agreements or
instruments has been assigned by the Company, and neither the Company nor, to the Company’s
knowledge, any other party is in breach or default thereunder and no event has occurred that, with
the lapse of time or the giving of notice, or both, would constitute a material breach or default
thereunder. Performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations.
(k) No securities of the Company have been sold by the Company or by or on behalf of, or for
the benefit of, any person or persons controlling, controlled by, or under common control with the
Company within the three years prior to the date hereof, except as disclosed in the Registration
Statement.
(l) All information contained in the questionnaires completed by each of the Company’s
stockholders listed in Schedule III (the “Initial Stockholders”) and provided to the Representative
as an exhibit to his or her Insider Letter (as defined below) is true and correct in all material
respects and the Company has not become aware of any information which would cause the information
disclosed in the questionnaires completed by each Initial Stockholder to become inaccurate and
incorrect in any material respect.
(m) The Company has caused to be duly executed legally binding and enforceable agreements
(except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally, (ii) as enforceability of any indemnification,
contribution or noncompete provision may be limited under the federal and state securities laws,
and (iii) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought) substantially in the
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form of Exhibits 10.[___] through 10.[___] to the Registration Statement (the “Insider
Letters”), pursuant to which each of the Initial Stockholders of the Company agrees to certain
matters including, but not limited to, certain matters described as being agreed to by them under
the “Proposed Business” section of the Registration Statement, the General Disclosure Package and
the Prospectus.
(n) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Securities other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the Act and
consistent with Section 4(a)(B) below. The Company has satisfied or will satisfy the conditions in
Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.
(o) At the time of filing the Registration Statement and (ii) as of the date hereof (with such
date being used as the determination date for purposes of this clause(ii)), the Company was not and
is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking into account
any determination by the Commission pursuant to Rule 405 under the Act that it is not necessary
that the Company be considered an ineligible issuer), including, without limitation, for purposes
of Rules 164 and 433 under the Act with respect to the offering of the Units as contemplated by the
Registration Statement.
(p) The financial statements of the Company, together with related notes and schedules as set
forth in the Registration Statement, the General Disclosure Package and the Prospectus, present
fairly the financial position and the results of operations and cash flows of the Company, at the
indicated dates and for the indicated periods. Such financial statements and related schedules
have been prepared in accordance with generally accepted principles of accounting (“GAAP”),
consistently applied throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have been made. The
summary and selected consolidated financial and statistical data included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the information shown
therein and such data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company. The Company does not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet obligations or
any “variable interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus. There are no financial statements (historical or pro forma) that are required
to be included in the Registration Statement, the General Disclosure Package or the Prospectus that
are not included as required.
(q) ▇▇▇▇ & Company LLP, who have certified certain of the financial statements filed with the
Commission as part of the Registration Statement, the General Disclosure Package and the
Prospectus, is an independent registered public accounting firm with respect to the Company and the
Subsidiaries within the meaning of the Act and the applicable Rules and Regulations and the Public
Company Accounting Oversight Board (United States) (the “PCAOB”).
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(r) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company is not aware of (i) any material weakness in its internal control over
financial reporting or (ii) change in internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(s) Solely to the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules and
regulations promulgated by the Commission and the American Stock Exchange thereunder (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) has been applicable to the Company, there is and has been no failure on the
part of the Company to comply in all material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. The Company has taken all necessary actions to ensure that it is in compliance with all
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are in effect and applicable to it on the date hereof and
with which the Company is required to comply and is actively taking steps to ensure that it will be
in compliance within the prescribed time periods with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
not currently in effect or which will become applicable to the Company.
(t) There is no action, suit, claim or proceeding pending or, to the knowledge of the Company,
threatened against the Company before any court or administrative agency or otherwise, which if
determined adversely to the Company would either (i) have, individually or in the aggregate, a
material adverse effect on the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company or (ii) prevent the
consummation of the transactions contemplated hereby (the occurrence of any such effect or any such
prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse
Effect”), except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus.
(u) On or prior to the Closing Date, the Company has entered into an agreement (the “Services
Agreement”) with Hayground Cove Asset Management LLC, pursuant to which Hayground Cove Asset
Management LLC will make available to the Company certain office space and certain office and
secretarial services, as the Company may require from time to time, for an amount not to exceed
$10,000 per month.
(v) Since the respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, as each may be amended or supplemented, there
has not been any material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise), or prospects of the Company, whether or not
occurring in the ordinary course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being entered into by the Company,
other than transactions in the ordinary course of business and changes and transactions described
in the Registration Statement, the General Disclosure Package and the Prospectus, as each may be
amended or supplemented. The Company has no material contingent obligations which are not
disclosed in the Company’s financial statements which are included in the Registration Statement,
the General Disclosure Package and the Prospectus.
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(w) The Company is not, nor with the giving of notice or lapse of time or both, will be, (i)
in violation of its certificate of incorporation, by-laws or other organizational documents or (ii)
in violation of or in default under any agreement, lease, contract, indenture or other instrument
or obligation to which it is a party or by which it, or any of its properties, is bound and, solely
with respect to this clause (ii), which violation or default would have a Material Adverse Effect.
The execution, delivery, and performance by the Company of this Agreement, the Warrant Agreement,
the Trust Agreement and the Services Agreement, the consummation by the Company of the transactions
herein and therein contemplated and the fulfillment of the terms hereof will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party
or by which the Company or any of its properties is bound, or of the certificate of incorporation
or by-laws of the Company or any law, order, rule or regulation judgment, order, writ or decree
applicable to the Company of any court or of any government, regulatory body or administrative
agency or other governmental body having jurisdiction.
(x) This Agreement, the Warrant Agreement, the Trust Agreement and the Services Agreement have
been duly and validly authorized by the Company and constitute the valid and binding agreements of
the Company, enforceable against the Company in accordance with their respective terms, except:
(i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under the federal and state securities laws; and (iii) that
the remedy of specific performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought. This Agreement has been duly executed and delivered by the Company.
(y) Each approval, consent, order, authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement, the Warrant Agreement, the Trust Agreement
and the Services Agreement and the consummation of the transactions herein and therein contemplated
(except such additional steps as may be required by the Commission, the Financial Industry
Regulatory Authority, Inc. (the “FINRA”) or such additional steps as may be necessary to qualify
the Securities for public offering by the Underwriters under state securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
(z) Except as described in the Registration Statement, the General 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, to the Company’s
knowledge, any Initial Stockholder with respect to the sale of the Securities hereunder or any
other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any
Initial Stockholder that may affect the Underwriter’s compensation, as determined by the FINRA.
The Company has not made any direct or indirect payments (in cash, securities or otherwise)
to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of
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such person raising capital for the Company or introducing to the Company persons who raised
or provided capital to the Company; (ii) to any FINRA member; or (iii) to any person or entity that
has any direct or indirect affiliation or association with any FINRA member, within the twelve
months prior to the Effective Date.
None of the net proceeds of the offering will be paid by the Company to any participating
FINRA member or its affiliates, except as specifically authorized herein and except as may be paid
in connection with an initial Business Combination (as defined below) and/or one or more other
transactions after the initial Business Combination, including without limitation in connection
with the payment of investment banking fees, fees in connection with fairness opinions and the
like.
(aa) 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. The Company will advise the Representative if it learns that
any officer or director is or becomes an affiliate or associated person of an FINRA member
participating in the offering.
(bb) Neither the Company nor, to the Company’s knowledge, any of its affiliates has taken or
will take, directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Units.
(cc) The Company will not be, after giving effect to the offering and sale of the Units
contemplated hereunder and the application of the net proceeds from such sale as described in the
Prospectus, an “investment company” within the meaning of such term under the Investment Company
Act of 1940 as amended (the “1940 Act”), and the rules and regulations of the Commission
thereunder.
(dd) The statistical, industry-related and market-related data included in the Registration
Statement, the General Disclosure Package and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and accurate, and such data
agree with the sources from which they are derived.
(ee) The Company has entered into a warrant agreement with respect to the Warrants with
Continental Stock Transfer & Trust Company substantially in the form of Exhibit [4.4] to the
Registration Statement (the “Warrant Agreement”).
(ff) The Company has entered into an investment management trust agreement (the “Trust
Agreement”) with respect to certain proceeds of the offering substantially in the form of Exhibit
[10.2] to the Registration Statement.
(gg) Except as provided in the Registration Statement, the General Disclosure Package and the
Prospectus, no Initial Stockholder, employee, officer or director of the Company is subject to any
non-competition or non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be an Initial Stockholder, employee, officer and/or director of
the Company.
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(hh) Upon delivery and payment for the Firm Units on the Closing Date, the Company will not be
subject to Rule 419 under the Act and none of the Company’s outstanding securities will be deemed
to be a “▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under the Exchange Act.
(ii) The Company does not have any specific Business Combination under consideration, and the
Company has not (nor has anyone on its behalf) contacted any prospective acquisition candidate or
had any discussions, formal or otherwise, with respect to such a transaction.
(jj) The operations of the Company are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable
rules and regulations thereunder (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 Company’s
knowledge, threatened.
(kk) Neither the Company nor 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 subsidiary, 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.
(ll) The Company is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“ERISA”); no “reportable event” (as defined
in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and each “pension
plan” for which the Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(mm) To the Company’s knowledge, there are no affiliations or associations between any member
of the FINRA and any of the Company’s officers, directors or 5% or greater securityholders, except
as set forth in the Registration Statement.
(nn) There are no relationships or related-party transactions involving the Company or any
other person required to be described in the Prospectus that have not been described as required.
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(oo) Neither the Company nor any of the Initial Stockholders nor any person acting on behalf
of the Company (other than the Underwriters) has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation of any law, which
violation is required to be disclosed in the Prospectus.
(pp) No consent, approval, authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in connection with the offering of the
Directed Units in any jurisdiction where the Directed Units are being offered.
(qq) The Company has not offered, or caused DBSI or its affiliates to offer, Units to any
person pursuant to the Directed Unit Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of business
with the Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
(rr) There are no material contracts or documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits thereto that have not been so
described and filed as required.
2. Purchase, Sale and Delivery of the Units.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the Underwriters and each
Underwriter agrees, severally and not jointly, to purchase, at a price of $9.30 per Unit, the
number of Firm Units set forth opposite the name of each Underwriter in Schedule I hereof, subject
to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Units to be sold hereunder is to be made in Federal (same day) funds
against delivery of certificates therefor to the Representative for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of The Depository
Trust Company, New York, New York at 10:00 a.m., New York time, on the third business day after the
date of this Agreement or at such other time and date not later than five business days thereafter
as you and the Company shall agree upon, such time and date being herein referred to as the
“Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange
is open for trading and on which banks in New York are open for business and are not permitted by
law or executive order to be closed.) Payment for the Firm Units shall be made on the Closing Date
by wire transfer in Federal (same day) funds, as follows: two hundred ninety-two million, seven
hundred fifty thousand dollars ($292,750,000) (without giving effect to the over-allotment option)
shall be deposited in the trust fund established by the Company for the benefit of the public
securityholders as described in the Registration Statement (the “Trust Fund”) pursuant to the terms
of the Trust Agreement (including nine million dollars ($9,000,000) of which to be held in the
Trust Fund as deferred discount to be paid to the Underwriters upon consummation of the initial
Business Combination, and six million dollars ($6,000,000) of proceeds received by the Company as
consideration for the sale of 6,000,000 Warrants for $1.00 per Warrant in a private placement prior
to closing) and the remaining two hundred fifty thousand dollars ($250,000) of the proceeds shall
be paid to the Company upon delivery to you of certificates (in form and substance satisfactory to
the Underwriters)
11
representing the Firm Units (or through the facilities of DTC) for the account of the
Underwriters. The Firm Units shall be registered in such name or names and in such authorized
denominations as the Representative may request in writing at least two full business days prior to
the Closing Date. The Company will permit the Representative to examine and package the Firm Units
for delivery, at least one full business day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for
all the Firm Units.
(c) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase the Option Units at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once thereafter within
30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to
the Company setting forth the number of Option Units as to which the several Underwriters are
exercising the option and the time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Units are to be delivered shall be determined by the
Representative but shall not be earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the “Option Closing Date”). If the date of exercise of the option is three
or more days before the Closing Date, the notice of exercise shall set the Closing Date as the
Option Closing Date. The number of Option Units to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Units being purchased as the number of Firm Units
being purchased by such Underwriter bears to the total number of Firm Units, adjusted by you in
such manner as to avoid fractional units. The option with respect to the Option Units granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm Units by the
Underwriters. You, as Representative of the several Underwriters, may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Units shall be made on the
Option Closing Date in Federal (same day funds) through the facilities of The Depository Trust
Company in New York, New York drawn to the order of the Company. Payment for the Option Units
shall be made on the Option Closing Date by wire transfer in Federal (same day) funds, as follows:
$9.60 per Option Unit sold shall be deposited in the Trust Fund pursuant to the Trust Agreement
(including $0.30 per Option Unit to be held in the Trust Fund as deferred underwriting discount,
which is to be paid to the Underwriters upon consummation of the initial Business Combination) upon
delivery to you of certificates (in form and substance satisfactory to the Underwriters)
representing the Option Units sold (or through the facilities of DTC) for the account of the
Underwriters. The Company shall not be obligated to sell or deliver any Option Units except upon
tender of payment by the Representative for all such Option Units.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Firm Units
as soon as the Representative deems it advisable to do so. The Firm Units are to be initially
offered to the public at the initial public offering price set forth in the Prospectus. The
12
Representatives may from time to time thereafter change the public offering price and other
selling terms.
It is further understood that you will act as the Representatives for the Underwriters in the
offering and sale of the Units in accordance with a Master Agreement Among Underwriters entered
into by you and the several other Underwriters.
4. Covenants of the Company.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under
the Act a Prospectus in a form approved by the Representative containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B
or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an
amendment or supplement to the General Disclosure Package or the Prospectus of which the
Representative shall not previously have been advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or which is not in compliance with the
Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission subsequent to the
date of the Prospectus and prior to the termination of the offering of the Units by the
Underwriters.
(b) The Company will not make any offer relating to the Units that would constitute an “issuer
free writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 under the Act). The Company will satisfy the
conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any
electronic road show.
(c) The Company will advise the Representative promptly (A) when the Registration Statement or
any post-effective amendment thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for amendment of the Registration
Statement or for supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose
or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the
issuance of any such order and to obtain as soon as possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representative in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions as the Representative may
reasonably have designated in writing and will make such applications, file such documents, and
furnish such information as may be reasonably required for that purpose, provided the Company shall
not be required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file such a consent.
The Company will, from time to time, prepare and file such statements, reports, and
13
other documents, as are or may be required to continue such qualifications in effect for so
long a period as the Representative may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time,
as many copies of any Preliminary Prospectus as the Representative may reasonably request. The
Company will deliver to, or upon the order of, the Representative during the period when delivery
of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representative may reasonably request. The Company will deliver to the
Representative at or before the Closing Date, four signed copies of the Registration Statement and
all amendments thereto including all exhibits filed therewith, and will deliver to the
Representative such number of copies of the Registration Statement (including such number of copies
of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto,
as the Representative may reasonably request.
(f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act
and the rules and regulations of the Commission thereunder, so as to permit the completion of the
distribution of the Units as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under
the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a
result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply
with any law, the Company will use its best efforts promptly to prepare and file with the
Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus.
(g) If the General Disclosure Package is being used to solicit offers to buy the Units at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with any law, the Company will use its best efforts promptly to prepare, file with the
Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment
or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the Effective Date, an
earnings statement (which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under
the Act and will advise you in writing when such statement has been so made available.
14
(i) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they
have been prepared by or are available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the Prospectus.
(j) The Company will use its commercially reasonable efforts to effect and maintain the
listing of the Securities on the AMEX.
(k) The Company shall apply the net proceeds of its sale of the Securities as set forth in the
Registration Statement, General Disclosure Package and the Prospectus and shall file such reports
with the Commission with respect to the sale of the Securities and the application of the proceeds
therefrom as may be required in accordance with Rule 463 under the Act.
(l) The Company shall cause the proceeds of the offering to be held in the Trust Fund to be
invested only in “government securities” (as defined in the Trust Agreement) with specific maturity
dates as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will
otherwise use its best efforts to conduct its business (both prior to and after the consummation of
an initial Business Combination) in a manner so that it will not become subject to the Investment
Company Act.
(m) 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, the stabilization or
manipulation of the price of any securities of the Company.
(n) The Company will comply with all applicable securities and other applicable laws, rules
and regulations in each jurisdiction in which the Directed Units are offered in connection with the
Directed Unit Program.
(o) For a period of five years from the Effective Date, or such earlier time upon which the
Company is required to be liquidated, the Company will use its commercially reasonable efforts to
maintain the registration of the Securities under the provisions of the Exchange Act. For a period
of five years from the Effective Date, or such earlier time upon which the Company is required to
be liquidated, the Company will not deregister the Units under the Exchange Act.
(p) For a period of five years from the Effective Date, or until such earlier date upon which
the Company is required to be liquidated, the Company, at its expense, shall cause its regularly
engaged independent registered public accounting firm to review (but not audit) the Company’s
financial statements for each of the first three fiscal quarters prior to the announcement of
quarterly financial information and the filing of the Company’s Form 10-Q quarterly report.
(q) The Company will not consummate a Business Combination with any entity which is affiliated
with Hayground Cove Asset Management LLC or any of the Company’s officers or directors. The Company
shall not pay any Initial Stockholder or any of their affiliates or family members any fees or
compensation from the Company, for services rendered to the Company prior to, or in connection
with, the consummation of an initial Business
15
Combination; provided that the Initial Stockholders shall be entitled to reimbursement from
the Company for their reasonable out-of-pocket expenses incurred in connection with seeking and
consummating an initial Business Combination.
(r) For a period of five years from the Effective Date or until such earlier time upon which
the Company is required to be liquidated, the Company, upon request from the Representative, will
furnish to the Representative (Attn: Syndicate Manager with a copy to: General Counsel), copies
of such financial statements and other periodic and special reports as the Company from time to
time furnishes generally to holders of any class of securities, and promptly furnish to the
Representative: (i) a copy of such registration statements, financial statements and periodic and
special reports as the Company shall be required to file with the Commission and from time to time
furnishes generally to holders of any such class of its securities; and (ii) such additional
documents and information with respect to the Company and the affairs of any future subsidiaries of
the Company as the Representative may from time to time reasonably request, all subject to the
execution of a satisfactory confidentiality agreement.
(s) For a period equal to five years from the date hereof or until such earlier time upon
which the Company is required to be liquidated, the Company will not take any action or actions
which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the
registration of the Warrants under the Act.
(t) The Company will maintain a transfer agent, warrant agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Units, Common Stock and
Warrants.
(u) In the event any person or entity (excluding attorneys, accountants, engineers,
environmental or labor consultants, investigatory firms, technology consultants and specialists and
similar service providers that are not affiliated or associated with the FINRA and are not brokers
or finders) is engaged, in writing, to assist the issuer in finding or evaluating a merger
candidate, the Company will provide the following to the FINRA and the Representative prior to
consummation of an initial Business Combination: (i) copies of agreements governing said services
(which details or agreements may be appropriately redacted to account for privilege or
confidentiality concerns), and (ii) a justification as to why the person or entity providing the
merger and acquisition services should not be considered an “underwriter or related person” with
respect to the Company’s initial public offering as such term is defined in Rule 2710(a)(6) of the
FINRA Conduct Rules. The Company also agrees that proper disclosure of such arrangement or
potential arrangement will be made in the proxy statement which the Company will file for purposes
of soliciting stockholder approval for the initial Business Combination.
(v) The Company will maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in accordance with management’s general
or specific authorization; (ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with generally accepted accounting principles and
to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
16
(w) The Company shall, on the date hereof, retain its independent public accountants to audit
the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”)
reflecting the receipt by the Company of the proceeds of the initial public offering. As soon as
the Audited Financial Statements become available, the Company shall promptly file a Current Report
on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial
Statements.
(x) The Company shall advise the FINRA if it is aware that any 5% or greater stockholder of
the Company (other than the Representative or its affiliates) becomes an affiliate or associated
person of an FINRA member participating in the distribution of the Securities.
(y) The Company hereby agrees that until the Company consummates a Business Combination, it
shall not issue any shares of Common Stock or any options or other securities convertible into
Common Stock, or any shares of Preferred Stock which participate in any manner in the Trust Fund or
which vote as a class with the Common Stock on a Business Combination.
(z) The Company hereby agrees that prior to commencing its due diligence investigation of any
operating business or assets which the Company seeks to acquire (“Target Business”) or obtaining
the services of any vendor or service provide, it will use its commercially reasonable efforts to
attempt to cause the Target Business or the vendor or service provider to execute a waiver letter
in the form attached hereto as Exhibit A and B, respectively. It is understood that the Company
may not be able to obtain such letters in some or all circumstances and that, nonetheless, the
Company may still proceed with such due diligence investigations and enter into agreements with
such parties or obtaining of services, as applicable.
(aa) The Company shall not take any action or omit to take any action that would cause the
Company to be in breach or violation of its certificate of incorporation or by-laws.
(bb) The Company agrees: (i) that, prior to the consummation of any Business Combination, it
will submit such transaction to the Company’s stockholders for their approval (“Initial Transaction
Vote”) even if the nature of the acquisition is such as would not ordinarily require stockholder
approval under applicable state law; and (ii) that, in the event that the Company does not effect a
Business Combination within 24 months from the consummation of this offering, the Company will be
liquidated as described in the Prospectus. At the time the Company seeks approval of any potential
Business Combination, the Company will offer each of the holders of the Company’s Common Stock
issued in this offering (the “IPO Shares”) the right to convert such holder’s IPO Shares at a per
share price equal to the amount in the Trust Fund (inclusive of any interest income therein) on the
record date (the “Conversion Price”) for determination of stockholders entitled to vote upon the
proposal to approve such Business Combination (the “Record Date”) divided by the total number of
IPO Shares (including any shares held by the Initial Stockholders). If the Company elects to
proceed with a Business Combination, it will convert shares, based upon the Conversion Price, from
those holders of IPO Shares who affirmatively requested such conversion and who voted against the
initial Business Combination. If holders of a majority in interest of the IPO Shares voted are not
voted in favor of any initial Business Combination or the holders of 30% or more in interest of the
IPO Shares
17
vote against approval of any potential initial Business Combination and exercise their
conversion rights, the Company will not proceed with such initial Business Combination and will not
convert such shares.
(cc) The Company agrees that it will use its commercially reasonable efforts to prevent the
Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business
Combination, including, but not limited to, using its commercially reasonable 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.
(dd) The Company agrees that the initial Target Business(es) that it acquires must have an
aggregate transaction value equal to at least 80% of the Company’s net assets (excluding the amount
held in the Trust Fund representing the Underwriters’ deferred discount) at the time of such
acquisition. “Transaction value” means the sum of (a) cash and fair market value of the property,
if any, used as consideration in connection with the Business Combination, (b) net debt assumed
and/or incurred in connection with the Business Combination, (c) working capital required to
operate the Target Business(es), (d) the value of capital stock used as consideration in connection
with the Business Combination as determined by an unaffiliated independent investment banking firm,
and (e) transaction costs incurred to complete the Business Combination. The transaction value
must be determined by the Board of Directors of the Company based upon standards the Board believes
are generally accepted by the financial community. If the Board of Directors of the Company is not
able to independently determine that the transaction value is at least 80% of the Company’s net
assets (excluding the amount held in the Trust Fund representing the Underwriters’ deferred
discount) at the time of such acquisition, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm which is a member of the 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(es) does have sufficient fair market value.
(ee) Within five days of the earlier to occur of the expiration or termination of the
Underwriters’ over-allotment option, the Company shall redeem shares of Common Stock from the
Initial Stockholders at no cost, in an aggregate amount equal to the number of shares of Common
Stock determined by multiplying (a) 1,125,000 by (b) a fraction, (i) the numerator of which is
4,500,000 minus the number of shares of Common Stock purchased by the Underwriters upon the
exercise of their over-allotment option, and (ii) the denominator of which is 4,500,000. For the
avoidance of doubt, if the Underwriters exercise the over-allotment option in full, the Company
shall not be required to redeem any shares of Common Stock pursuant to this subsection.
(ff) The Company agrees that, prior to the consummation of a Business Combination, it will not
take any action to amend or modify, and will not support, directly or indirectly, or in any way
endorse or recommend that stockholders approve any amendment or modification to, the provisions of
its certificate of incorporation set forth in the Prospectus under the subheading “Amended and
Restated Certificate of Incorporation” under the caption “Proposed Business”.
18
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel
for the Company; the cost of printing and delivering to, or as requested by, the Underwriters
copies of the Registration Statement, Preliminary Prospectuses, the Prospectus, this Agreement,
the Underwriters’ Selling Memorandum, the Underwriters’ Invitation Letter, the Listing
Application, the Blue Sky Survey and any supplements or amendments thereto; the filing fees of the
Commission; the filing fees and expenses (including legal fees and disbursements) incident to
securing any required review by the FINRA of the terms of the sale of the Units; the Listing Fee of
the American Stock Exchange; the costs and expenses (including without limitation any damages or
other amounts payable in connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Units made by the Underwriters caused by a breach of a
representation; and the expenses, including the reasonable fees and disbursements of one counsel
for the Underwriters, incurred in connection with the qualification of the Securities under State
securities or Blue Sky laws. The Company shall not, however, be required to pay for any of the
Underwriter’s expenses (other than those related to qualification under FINRA regulation and State
securities or Blue Sky laws) except that, if this Agreement shall not be consummated because the
conditions in Section 6 hereof are not satisfied, or because this Agreement is terminated by the
Representative pursuant to Section 11 hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless such failure, refusal or
inability is due primarily to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Units or in contemplation of performing their obligations hereunder; but
the Company shall not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Units.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Units on the Closing Date and
the Option Units, if any, on the Option Closing Date are subject to the accuracy, as of the
Applicable Time, the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus shall have been filed as required by Rules 424, 430A or 430C under the
Act, as applicable, within the time period prescribed by, and in compliance with, the Rules and
Regulations, and any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the Representative and complied
with to its reasonable satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
19
issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have
been taken or, to the knowledge of the Company, shall be contemplated or threatened by the
Commission and no injunction, restraining order or order of any nature by a Federal or state court
of competent jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance of the Units.
(b) The Representative shall have received on the Closing Date or the Option Closing Date, as
the case may be, the opinions of Proskauer Rose LLP, counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the Underwriters and in form an
substance satisfactory to the Underwriters.
(c) The Representative shall have received an opinion and statement of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to such matters as the Representative may reasonably
request, and such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(d) The Representative shall have received at or prior to the Closing Date from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP a memorandum or summary, in form and substance satisfactory to the
Representative, with respect to the qualification for offering and sale by the Underwriters of the
Securities under the State securities or Blue Sky laws of such jurisdictions as the Representative
may reasonably have designated to the Company.
(e) The Representative shall have received, on each of the date hereof, the Closing Date and,
if applicable, the Option Closing Date, a letter dated the date hereof, the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to you, of ▇▇▇▇ &
Company LLP confirming that it is an independent registered public accounting firm with respect to
the Company and the Subsidiaries within the meaning of the Act and the applicable Rules and
Regulations and the PCAOB and stating that in its opinion the financial statements and schedules
examined by it and included in the Registration Statement, the General Disclosure Package and the
Prospectus comply in form in all material respects with the applicable accounting requirements of
the Act and the related Rules and Regulations; and containing such other statements and information
as is ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the
financial statements and certain financial and statistical information contained in the
Registration Statement, the General Disclosure Package and the Prospectus.
(f) The Representative shall have received on the Closing Date and, if applicable, the Option
Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and
the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option
Closing Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act and no stop order suspending
the effectiveness of the Registration Statement or no order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus has been
20
issued, and no proceedings for such purpose or pursuant to Section 8A of the Act have been
taken or are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained in Section 1 hereof are true
and correct as of the Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules 424, 430A, 430B or 430C under
the Act have been made as and when required by such rules;
(iv) He or she has carefully examined the General Disclosure Package and, in his or her
opinion, as of the Applicable Time, the statements contained in the General Disclosure Package did
not contain any untrue statement of a material fact, and such General Disclosure Package did not
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;
(v) He or she has carefully examined the Registration Statement and, in his or her opinion, as
of the effective date of the Registration Statement, the Registration Statement and any amendments
thereto did not contain any untrue statement of a material fact and did not omit to state a
material fact necessary in order to make the statements therein not misleading, and since the
Effective Date, no event has occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such supplement or amendment;
(vi) He or she has carefully examined the Prospectus and, in his or her opinion, as of its
date and the Closing Date or the Option Closing Date, as the case may be, the Prospectus and any
amendments and supplements thereto did not contain any untrue statement of a material fact and did
not 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; and
(vii) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and Prospectus, there has not been any material adverse
change or any development involving a prospective material adverse change in or affecting the
business, management, properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company, whether or not arising in the ordinary course of business.
(g) The Company shall have furnished to the Representative such further certificates and
documents confirming the representations and warranties, covenants and conditions contained herein
and related matters as the Representative may reasonably have requested.
(h) The Firm Units and Option Units, if any, shall have been duly listed, subject to notice of
issuance, on the American Stock Exchange.
(i) The Company shall have delivered to the Representative executed copies of the Trust
Agreement, the Warrant Agreement, the Services Agreement and each of the Insider Letters.
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(j) The Company shall have deposited into the Trust Fund the six million dollars ($6,000,000)
in proceeds received by the Company as consideration for the sale of 6,000,000 Warrants for $1.00
per Warrant in a private placement prior to the Closing Date.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects satisfactory to the
Representative and to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representative by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date,
as the case may be.
In such event, the Company and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of the Securities required to
be delivered as and when specified in this Agreement are subject to the conditions that at the
Closing Date or the Option Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or (ii) 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 the light of the circumstances under which
they were made; provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information furnished to the
Company by or through the Representative specifically for use therein, it being understood
and agreed that the only
22
such information furnished by any Underwriter consists of the information described as
such in Section 13 herein; and
(2) to reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Securities, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it is finally
judicially determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly return all
sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer, or controlling person
may become subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or
(ii) the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or proceeding; provided,
however, that each Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information furnished to the Company by
or through the Representative specifically 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 13 herein. This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to this Section 8, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a),
(b) or (d) shall be available to any party who shall fail to give notice as provided in this
Section 8(c) if the party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a), (b) or (d). In case any such proceeding shall be brought against
any indemnified party and it shall notify the indemnifying
23
party of the commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its own counsel at its
own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or
within 30 days of presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to assume the defense and
employ counsel acceptable to the indemnified party within a reasonable period of time after notice
of commencement of the action. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified pursuant to Section
8(a), (b) or (d) and by the Company in the case of parties indemnified pursuant to Section 8(c).
The indemnifying party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. In addition, the indemnifying party
will not, without the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action or proceeding of
which indemnification may be sought hereunder (whether or not any indemnified party is an actual or
potential party to such claim, action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such
claim, action or proceeding.
(d) The Company, agrees to indemnify and hold harmless DBSI and its affiliates and each
person, if any, who controls DBSI or its affiliates within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any material prepared by or
with the consent of the Company for distribution to Participants in connection with the Directed
Unit Program, or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of Directed Units that the
Participant has agreed to purchase; or (iii) related to, arising out of, or in connection with the
Directed Unit Program other than losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad faith or gross
negligence of DBSI.
(e) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a), (b) or (d) above in respect
of any losses, claims, damages or liabilities (or actions or proceedings in respect
24
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) 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 from
the offering of the Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof), 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 shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(f) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 8(f).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(f)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (f), (i) no Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions applicable to the Securities purchased by
such Underwriter and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court having jurisdiction
over any other contributing party, agrees that process issuing from such court may be served upon
it by any other contributing party and consents to the service of such process and agrees that any
other contributing party may join it as an additional defendant in any such proceeding in which
such other contributing party is a party.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8
25
and the representations and warranties of the Company set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company, its directors or officers
or any persons controlling the Company, (ii) acceptance of any Units and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, or any
person controlling any Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be, any Underwriter shall
fail to purchase and pay for the portion of the Units which such Underwriter has agreed to purchase
and pay for on such date (otherwise than by reason of any default on the part of the Company), you,
as Representative of the Underwriters, shall use your commercially reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from
the Company such amounts as may be agreed upon and upon the terms set forth herein, the Units which
the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you, as
such Representative, shall not have procured such other Underwriters, or any others, to purchase
the Units agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of shares with respect to which such default shall occur does not exceed 10% of
the Units to be purchased on the Closing Date or the Option Closing date, as the case may be, the
other Underwriters shall be obligated, severally, in proportion to the respective numbers of Units
which they are obligated to purchase hereunder, to purchase the Units which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of Units with
respect to which such default shall occur exceeds 10% of the Units to be purchased on the Closing
Date or the Option Closing Date, as the case may be, the Company or you as the Representative of
the Underwriters will have the right, by written notice given within the next 36-hour period to the
parties to this Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company except to the extent provided in Sections 5 and 8
hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Section
9, the Closing Date or Option Closing Date, as the case may be, may be postponed for such period,
not exceeding seven days, as you, as Representative, may determine in order that the required
changes in the Registration Statement, the General Disclosure Package or in the Prospectus or in
any other documents or arrangements may be effected. The term “Underwriter” includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve
any defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the
Underwriters, to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the Company, to
26
Global Consumer Acquisition Corp. c/o Hayground Cove Asset Management LLC, 1370 Avenue of the
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
11. Termination.
This Agreement may be terminated by you by notice to the Company (a) at any time prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and then only as to
Option Units) if any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package and the
Prospectus, any material adverse change or any development involving a prospective material adverse
change in or affecting the earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (ii) any outbreak or escalation
of hostilities or declaration of war or national emergency or other national or international
calamity or crisis if the effect of such outbreak, escalation, declaration, emergency, calamity or
crisis on the financial markets of the United States would, in your judgment, make it impracticable
or inadvisable to market the Units or to enforce contracts for the sale of the Units, (iii) any
material change in economic or political conditions, if the effect of such change on the financial
markets of the United States would, in your judgment, make it impracticable or inadvisable to
market the Units or to enforce contracts for the sale of the Units or (iv) suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market or limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange or a disruption in commercial banking or securities
settlement or clearance systems in the United States, (v) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects or may materially and adversely
affect the business or operations of the Company, (vi) the declaration of a banking moratorium by
United States or New York State authorities, (vii) any downgrading, or placement on any watch list
for possible downgrading, in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the
Exchange Act); (viii) the suspension of trading of the Company’s securities by the American Stock
Exchange, the Commission, or any other governmental authority or, (ix) the taking of any action by
any governmental body or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the
Company and their respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other person will have any
right or obligation hereunder. No purchaser of any of the Units from any Underwriter shall be
deemed a successor or assign merely because of such purchase.
27
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus or the Prospectus consists of the information set forth in the third,
twelfth and thirteenth paragraphs under the caption “Underwriting” in the Prospectus.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in this Agreement and
the representations, warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its
directors or officers, and (c) delivery of and payment for the Units under this Agreement.
The Company acknowledges and agrees that each Underwriter in providing investment banking
services to the Company in connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and
the Company does not intend such Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher trust.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
The Company agrees that any suit, action or proceeding against it brought by any Underwriter,
the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who
controls any Underwriter, arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State court or U.S. federal court in The City of New
York and County of New York, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction
of such courts in any suit, action or proceeding.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the several Underwriters in accordance with its terms.
| Very truly yours, GLOBAL CONSUMER ACQUISITION CORP. |
||||
| By | ||||
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representative of the several
Underwriters listed on Schedule I
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
| By | ||||
| Authorized Officer | ||||
| By | ||||
| Authorized Officer | ||||
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