20,000,000 Units Climate Change Crisis Real Impact I Acquisition Corporation UNDERWRITING AGREEMENT
Exhibit 1.1
20,000,000 Units
September 29, 2020
Citigroup Global Markets Inc.
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BofA Securities, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Barclays Capital Inc.
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As Representatives of the several Underwriters
Ladies and Gentlemen:
Climate Change Crisis Real Impact I Acquisition Corporation, a Delaware corporation (the “Company”), proposes to sell to you and, as applicable, to the several underwriters named
in Schedule I hereto (collectively, the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, 20,000,000 units (the “Units”) of the Company (said units to be issued and sold by the Company being hereinafter called the “Underwritten Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to 3,000,000 additional units to cover over-allotments, if any (the “Option Securities”; the Option Securities, together with the Underwritten Securities, being hereinafter
called the “Securities”). To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters, and the term
Underwriter shall mean either the singular or plural as the context requires. Certain capitalized terms used herein and not otherwise defined are defined in Section 21 hereof.
Each Unit consists of one share of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), and one-half of one warrant, where each whole warrant is
exercisable to purchase one share of Common Stock (the “Warrant(s)”). The shares of Common Stock and Warrants included in the Securities will not trade separately until the 52nd day following the date of the
Prospectus (unless the Representatives inform the Company of their decision to allow earlier separate trading), subject to (a) the Company’s preparation of an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the
Offering (as defined below), (b) the filing of such audited balance sheet with the Commission on a Current Report on Form 8-K or similar form by the Company that includes such audited balance sheet, and (c) the Company having issued a press release
announcing when such separate trading will begin. Each whole Warrant entitles its holder, upon exercise, to purchase one share of Common Stock for $11.50 per share, subject to adjustment, during the period commencing on the later of thirty (30) days
after the completion of an initial Business Combination (as defined below) and twelve (12) months from the date of the consummation of the Offering and terminating on the five-year anniversary of the date of the completion of such initial Business
Combination or earlier upon redemption or liquidation of the Company; provided, however, that pursuant to the Warrant Agreement (as defined below), a warrant may not
be exercised for a fractional share. As used herein, the term “Business Combination” (as described more fully in the Registration Statement) shall mean a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or similar business combination with one or more businesses.
The Company has entered into an Investment Management Trust Agreement, dated as of the date hereof (as defined in Section 3), with Continental Stock Transfer & Trust Company (“CST”),
as trustee, in substantially the form filed as Exhibit 10.2 to the Registration Statement (the “Trust Agreement”), pursuant to which certain of the proceeds from the sale of the Private Placement Warrants (as
defined below) and the proceeds of the Offering will be deposited and held in a trust account (the “Trust Account”) for the benefit of the Company, the Underwriters and the holders of the Underwritten
Securities and the Option Securities, if and when issued.
The Company has entered into a Warrant Agreement, dated as of the date hereof, with respect to the Warrants and the Private Placement Warrants with CST, as warrant agent, in substantially the form filed as Exhibit 4.4 to
the Registration Statement (the “Warrant Agreement”), pursuant to which CST will act as warrant agent in connection with the issuance, registration, transfer, exchange, redemption, and exercise of the Warrants
and the Private Placement Warrants.
The Company has entered into a Founder Shares Subscription Agreement, dated as of August 10, 2020 and in the form filed as Exhibit 10.3 of the Registration Statement (the “Founder’s
Subscription Agreement”), with Climate Change Crisis Real Impact I Acquisition Holdings, LLC, a Delaware limited liability company (the “Sponsor”), pursuant to which the Sponsor purchased 5,750,000
shares of Class B common stock, par value $0.0001 per share, of the Company (including the shares of Common Stock issuable upon conversion thereof, the “Founder Shares”), for an aggregate purchase price of
$25,000. The Founder Shares are substantially similar to the shares of Common Stock included in the Units, except as described in the Prospectus.
The Company has entered into a Warrant Purchase Agreement, dated as of the date hereof, with the Sponsor, in substantially the form filed as Exhibit 10.4 to the Registration Statement (the “Warrant Purchase Agreement”), pursuant to which the Sponsor agreed to purchase an aggregate of 6,000,000 warrants (or 6,600,000 warrants if the over-allotment option is exercised in full), at a price of $1.00 per Private Placement
Warrant, each entitling the holder, upon exercise, to purchase one share of Common Stock (the “Private Placement Warrants”), for $11.50 per share. The Private Placement Warrants are substantially similar to the
Warrants included in the Units, except as described in the Prospectus.
The Company has entered into a Registration and Stockholder Rights Agreement, dated as of the date hereof, with the Sponsor and the other parties thereto, in substantially the form filed as Exhibit 10.5 to the
Registration Statement (the “Registration and Stockholder Rights Agreement”), pursuant to which the Company will grant certain registration and stockholder rights in respect of the Private Placement Warrants
and the shares of Common Stock underlying the Founder Shares, the shares of Common Stock underlying the Private Placement Warrants and certain warrants that may be issued upon conversion of working capital loans (including the shares of Common Stock
underlying such warrants), as described in the Prospectus.
The Company has entered, and will cause the same to be duly executed and delivered, the letter agreement, dated as of the date hereof, by and among the Sponsor, each member of the Sponsor, each of the Company’s executive
officers, directors and director nominees and certain consultants of the Company, in the form filed as Exhibit 10.1 to the Registration Statement (the “Insider Letter”).
1. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 0.
(a)
The Company has prepared and filed with the Commission the Registration Statement (file number 333-248718) on Form S-1, including the related Preliminary Prospectus, for registration under the Act
of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company has filed one or more amendments thereto, including the related Preliminary
Prospectus, each of which has previously been furnished to you. The Company will file with the Commission the Prospectus in accordance with Rule 424(b). As filed, such Prospectus shall contain all information required by the Act and, except to the
extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Company has complied to the Commission’s
satisfaction with all requests of the Commission for additional or supplemental information.
(b)
On the Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements
of the Act; on the Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c)
As of the Execution Time, the Statutory Prospectus, each “road show” as defined in Rule 433(h), when taken together as a whole with the Statutory Prospectus, and any individual Written
Testing-the-Waters Communication, when taken together as a whole with the Statutory Prospectus, does not and on the Closing Date and any settlement date, will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information contained in or omitted from the Statutory Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(d)
The Company has filed with the Commission a Form 8-A (file number 001-39572) providing for the registration under the Exchange Act of the Securities, the Common Stock included as part of the
Securities and the Warrants included as part of the Securities, which registration is currently effective on the date hereof. The Securities have been authorized for listing, subject to official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange, and the Company knows of no reason or set of facts that is likely to adversely affect such authorization.
(e)
The Commission has not issued any order or, to the Company’s knowledge, threatened to issue any order preventing or suspending the effectiveness of the Registration Statement or the use of
any Preliminary Prospectus, the Prospectus or any part thereof, and has not instituted or, to the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
(f)
(i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company
was and is an Ineligible Issuer (as defined in Rule 405).
(g)
The Company has not prepared or used a Free Writing Prospectus.
(h)
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and conduct its business as described in the Statutory Prospectus and the Prospectus and to enter into this Agreement, the Trust Agreement, the Warrant Agreement, the
Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Registration and Stockholder Rights Agreement and the Insider Letter and to carry out the transactions contemplated hereby and thereby, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification.
(i)
The agreements and documents described in the Statutory Prospectus, the Registration Statement and the Prospectus conform in all material respects to the descriptions thereof
contained therein. There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit to the Registration Statement, which is not
described or filed as required (and the Statutory Prospectus contains in all material respects the same description of the foregoing matters contained in the Prospectus); and the statements in the Statutory Prospectus and the
Prospectus under the headings “Principal Stockholders,” “Certain Relationships and Related Party Transactions” and “Description of Securities” insofar as such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are in all material respects accurate and fair summaries of such legal matters, agreements, documents or proceedings. There are no business relationships or related party transactions involving the Company or any
other person required by the Act to be described in the Registration Statement or Prospectus that have not been described as required.
(j)
The Company’s authorized equity capitalization is as set forth in the Statutory Prospectus, the Registration Statement and the Prospectus.
(k)
All issued and outstanding Founder Shares of the Company have been duly and validly authorized and issued and are fully paid and except with respect to the forfeiture of
certain Founder Shares as described in the Registration Statement in the event that the Underwriters do not purchase all of the Option Securities, nonassessable; and none of such Founder Shares 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 Founder Shares were at all relevant times, based in part on the
representations and warranties of the purchasers of such Founder Shares, exempt from registration requirements under the Act. The holders of outstanding Founder Shares are not entitled to preemptive or other rights to subscribe
for the Securities arising by operation of law or under the Company’s amended and restated certificate of incorporation (the “Amended and Restated Certificate of Incorporation”) or bylaws,
and, except as set forth in the Statutory Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares or other ownership interests in the Company are outstanding.
(l)
The Securities have been duly authorized and when executed by the Company and countersigned and issued and delivered (by the entry of the name of the registered owner thereof
in the register of stockholders of the Company confirming that such securities have been issued credited as fully paid) against payment by the Underwriters pursuant to this Agreement, will be validly issued.
(m)
The shares of Common Stock included in the Securities have been duly authorized and, when executed by the Company and countersigned, and issued and delivered (by the entry
of the name of the registered owner thereof in the register of stockholders of the Company confirming that such securities have been issued credited as fully paid) against payment for the Securities by the Underwriters
pursuant to this Agreement, will be validly issued, fully paid and nonassessable.
(n)
The Warrants included in the Securities, when executed, authenticated, issued and delivered in the manner set forth in the Warrant Agreement against payment for the
Securities by the Underwriters pursuant to this Agreement, will be duly executed, authenticated, issued and delivered, and will constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of
general applicability.
(o)
The shares of Common Stock issuable upon exercise of the Warrants included in the Securities and the Private Placement Warrants have been duly authorized and reserved
for issuance upon exercise thereof and, when executed by the Company and countersigned, and issued and delivered (by the entry of the name of the registered owner thereof in the register of stockholders of the Company
confirming that such securities have been issued credited as fully paid) against payment therefor pursuant to the Warrants and the Private Placement Warrants, as applicable, and the Warrant Agreement, will be validly
issued, fully paid and nonassessable. The holders of such shares of Common Stock are not and will not be subject to personal liability by reason of being such holders; such shares of Common Stock are not and will not be
subject to any preemptive or other similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of such shares of Common Stock (other than such
execution (if applicable), countersignature (if applicable) and delivery at the time of issuance) has been duly and validly taken.
(p)
Except as set forth in the Statutory Prospectus and the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by
the Company.
(q)
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 from its inception through and including the date hereof, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(r)
Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities that are required to be “integrated” pursuant to the Act with the offer and sale of the Underwritten Securities pursuant to the Registration Statement.
(s)
The Private Placement Warrants, when delivered upon the consummation of the Offering, will be duly executed, authenticated, issued and delivered, and will
constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability.
(t)
This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by
equitable principles of general applicability.
(u)
On the Closing Date, the Trust Agreement will be duly authorized, executed and delivered by the Company, and will constitute a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general applicability.
(v)
On the Closing Date, the Warrant Agreement will be duly authorized, executed and delivered by the Company and will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of general applicability.
(w)
The Founder’s Subscription Agreement has been duly authorized, executed and delivered by the Company and, to the knowledge of the Company, the Sponsor,
and is a valid and binding agreement of the Company and, to the knowledge of the Company, the Sponsor, enforceable against the Company and, to the knowledge of the Company, the Sponsor in accordance with
its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of
general applicability.
(x)
The Warrant Purchase Agreement has been duly authorized, executed and delivered by the Company and, to the knowledge of the Company, the Sponsor, and
is a valid and binding agreement of the Company and, to the knowledge of the Company, the Sponsor, enforceable against the Company and, to the knowledge of the Company, the Sponsor in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of
general applicability.
(y)
On the Closing Date, the Registration and Stockholder Rights Agreement will be duly authorized, executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or
similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability.
(z)
On the Closing Date, the Insider Letter executed by the Company, the Sponsor, each member of the Sponsor, each of the Company’s executive
officers, directors and director nominees and certain consultants of the Company will be duly authorized, executed and delivered by the Company and, to the Company’s knowledge, the Sponsor, each
member of the Sponsor, each such executive officer, director and director nominee and consultant, respectively, and will constitute a valid and binding agreement of the Company and, to the Company’s
knowledge, the Sponsor, each member of the Sponsor, each such executive officer, director and director nominee and consultant, respectively, enforceable against the Company, and, to the Company’s
knowledge, the Sponsor, each member of the Sponsor, each such executive officer, director and director nominee and consultant, respectively, in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability.
(aa)
The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described
in the Statutory Prospectus and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(bb)
No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with
performance by the Company of the transactions contemplated herein or in the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the
Registration and Stockholder Rights Agreement or the Insider Letter, except for the registration under the Act and the Exchange Act of the Securities and such as may be required under state
securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Statutory
Prospectus and the Prospectus.
(cc)
The Company is not in violation or default of (i) any provision of its Amended and Restated Certificate of Incorporation or bylaws, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound
or to which its property is subject, or (iii) any (x) statute, law, rule, regulation, or (y) judgment, order or decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company; except in the case of clauses (ii) and (iii) above for any such conflict, breach or violation that would not, individually or
in the aggregate, be reasonably expected to have a material adverse effect on the financial condition, prospects, earnings, business or properties of the Company, taken as a whole, whether or
not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(dd)
Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment
of the terms hereof or of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Registration and Stockholder Rights Agreement or
the Insider Letter will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the
Amended and Restated Certificate of Incorporation or bylaws of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which the Company’s property is subject, or (iii) any statute, law, rule, or regulation,
judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company
or any of its respective properties; except in the case of clauses (ii) and (iii) above for any such conflict, breach or violation that would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(ee)
Since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any
supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(ff)
No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(gg)
The historical financial statements, including the notes thereto and the supporting schedules, if any, of the Company included in
the Statutory Prospectus, the Prospectus and the Registration Statement present fairly the financial condition, results of operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The summary financial data set forth under the caption “Summary Financial Data” in the
Statutory Prospectus, Prospectus and Registration Statement fairly present, on the basis stated in the Statutory Prospectus, Prospectus and Registration Statement, the information
included therein. There are no pro forma or as adjusted financial statements that are required to be included in the Statutory Prospectus, the Prospectus and the Registration Statement
in accordance with Regulation S-X that have not been included as so required. The Company is not party to any off-balance sheet transactions, arrangements, obligations (including
contingent obligations), or other relationships with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition,
changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. The statistical,
industry-related and market-related data included in the Registration Statement, the Statutory Prospectus and the Prospectus are based on or derived from sources that the Company
reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
(hh)
No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the
Company, or, to the Company’s knowledge, the Sponsor, any officer, director or director nominee of the Company, or the property of either of them is pending or, to the knowledge of the
Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions
contemplated hereby by the Company or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the
Prospectus (exclusive of any supplement thereto).
(ii)
The Company owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.
(jj)
WithumSmith + ▇▇▇▇▇, PC (“WithumSmith”), who have certified certain financial
statements of the Company and delivered their report with respect to the audited financial statements and schedules included in the Registration Statement, Statutory Prospectus and
the Prospectus, is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable
published rules and regulations thereunder.
(kk)
The Company maintains effective “disclosure controls and procedures” (as defined under Rule 13a-15(e) under the Exchange Act
to the extent required by such rule).
(ll)
Solely to the extent that the Sarbanes Oxley Act of 2002, as amended, and the rules and regulations promulgated by the
Commission thereunder (the “Sarbanes Oxley Act”) have been applicable to the Company, there is and has been no failure on the part of
the Company to comply with any applicable provisions of the Sarbanes Oxley Act. The Company has taken all necessary actions to ensure that it is in compliance with all
provisions of the Sarbanes Oxley Act that are in effect and with which the Company is required to comply.
(mm)
There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
officers or directors, in their capacities as such, to comply with (as and when applicable), and immediately following the Effective Date the Company will be in compliance
with, the requirements of Section 303A of the New York Stock Exchange Listed Company Manual (taking into account any applicable phase-in requirements). Further, there is and
has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s officers or directors, in their capacities as such, to comply with
(as and when applicable), and immediately following the Effective Date the Company will be in compliance with, the phase-in requirements and all other provisions of the New
York Stock Exchange corporate governance requirements set forth in the New York Stock Exchange Listed Company Manual.
(nn)
There are no transfer, stamp, issue, registration, documentary or other similar taxes, duties, fees or charges under
U.S. federal law or the laws of any state, or any political subdivision thereof, or under the laws of any non-U.S. jurisdiction, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by the Company of the Securities.
(oo)
The Company has filed all tax returns (including U.S. federal, state and non-U.S.) that are required to be filed by
it or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) through the date hereof and has paid
all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in good faith and for which adequate reserves required by generally accepted accounting principles
have been created with respect thereto or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, Statutory
Prospectus and the Prospectus (exclusive of any supplement thereto).
(pp)
The Company possesses all licenses, certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct its business, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement
thereto).
(qq)
None of the Company or, to the knowledge of the Company, the Sponsor, any director, director nominee, officer,
agent, employee, affiliate or other person associated with or acting on behalf of the Company: (i) has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) has made any direct or indirect unlawful contribution or payment to any official of, or
candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has made any bribe, unlawful rebate, payoff, influence payment,
kickback or other unlawful payment; or (iv) is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the OECD
Convention on Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of the payment of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, or any similar law or regulation to which the
Company, any director, director nominee, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company is subject. The
Company and, to the knowledge of the Company, the Sponsor, and the Company’s directors, director nominees, officers, agents, employees and affiliates have each
conducted the business of the Company and their own businesses on behalf of the Company in compliance with the FCPA and any applicable similar law or regulation and
have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(rr)
The operations of the Company are and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the applicable money laundering statutes of jurisdictions where the Company conducts business, the applicable rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ss)
None of the Company or, to the Company’s knowledge, the Sponsor, any director, director nominee, officer,
agent or affiliate of the Company is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any similar sanctions imposed by any other body, governmental or other, to which any of such persons is subject
(collectively, “other economic sanctions”); and the Company (either directly or through the Trust Account) 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 sanctions administered by OFAC or other economic
sanctions.
(tt)
Except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any of the Underwriters and (ii) does not intend to
use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of any of the Underwriters.
(uu)
To the knowledge of the Company, all information contained in the questionnaires (the “Questionnaires”) completed by the Sponsor and the Company’s officers, directors and director nominees and provided to the
Underwriters, is true and correct in all material respects, and the Company has not become aware of any information that would cause the information disclosed
in the Questionnaires completed by the Sponsor or the Company’s officers, directors and director nominees to become inaccurate and incorrect.
(vv)
Except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, prior
to the date hereof, the Company has not selected any specific acquisition target and has not, nor, to its knowledge, has anyone on its behalf, initiated any
substantive discussions with any specific acquisition target or had any substantive discussions, formal or otherwise, with respect to a possible initial
Business Combination, or undertaken, or engaged or retained any agent or other representative to undertake, any research, diligence, evaluations or similar
activities to identify, locate or contact any suitable acquisition candidate.
(ww)
Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus,
there are no claims, payments, arrangements, contracts, agreements or understandings relating to the payment of a brokerage commission or finder’s,
consulting, origination or similar fee by the Company, the Sponsor or any officer, director or director nominee of the Company with respect to the sale of
the Securities hereunder or any other arrangements, agreements or understandings of the Company, the Sponsor or any such officer, director or director
nominee of the Company, or their respective affiliates, that may affect the Underwriters’ compensation, as determined by the Financial Industry Regulatory
Authority (“FINRA”).
(xx)
Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus,
the Company has not made any direct or indirect payments (in cash, securities or any other “item of value” as defined in Rule 5110(c)(3) of FINRA’s
Conduct Rules): (i) to any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital to the Company; (ii) to any person that, to the Company’s knowledge, has been accepted
by FINRA as a member of FINRA (a “Member”); or (iii) to any person or entity that, to the Company’s knowledge,
has any direct or indirect affiliation or association with any Member, within the twelve months prior to the Effective Date, other than payments to the
Underwriters pursuant to this Agreement.
(yy)
Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus,
during the period beginning 180 days prior to the initial filing of the Registration Statement and ending on the Effective Date, no Member and/or any
person associated or affiliated with a Member has provided any investment banking, financial advisory and/or consulting services to the Company.
(zz)
Except as disclosed in the FINRA Questionnaires provided to the Representatives, to the
Company’s knowledge no officer, director, or beneficial owner of any class of the Company’s securities (whether debt or equity, registered or
unregistered, regardless of the time acquired or the source from which derived) (any such individual or entity, a “Company
Affiliate”) is a Member or a person associated or affiliated with a Member.
(aaa)
Except as disclosed in the FINRA Questionnaires provided to the Representatives, to the
Company’s knowledge, no Company Affiliate is an owner of shares or other securities of any Member (other than securities purchased on the open
market).
(bbb)
No Company Affiliate has made a subordinated loan to any Member.
(ccc)
Except as described in the Registration Statement, the Statutory Prospectus and the
Prospectus, no proceeds from the sale of the Underwritten Securities (excluding underwriting compensation as disclosed in the Registration
Statement, Statutory Prospectus and the Prospectus) will be paid by the Company to any Member, or any persons associated or affiliated with a
Member.
(ddd)
The Company has not issued any warrants or other securities, or granted any options,
directly or indirectly to anyone who is a potential underwriter in the Offering or a related person (as defined by FINRA rules) of such an
underwriter within the 180-day period prior to the initial filing date of the Registration Statement.
(eee)
Except as described in the Registration Statement, the Statutory Prospectus and the
Prospectus, no person to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing
date of the Registration Statement has to the Company’s knowledge any relationship or affiliation or association with any Member.
(fff)
Except as described in the Registration Statement, the Statutory Prospectus and
the Prospectus, to the Company’s knowledge, no Member intending to participate in the Offering has a conflict of interest with the
Company. For this purpose, a “conflict of interest” means, if at the time of the Member’s participation in the Offering, any of the
following applies: (A) the securities are to be issued by the Member; (B) the Company controls, is controlled by or is under common
control with the Member or the Member’s associated persons; (C) at least 5% of the net offering proceeds, not including underwriting
compensation, are intended to be: (i) used to reduce or retire the balance of a loan or credit facility extended by the Member, its
affiliates and its associated persons, in the aggregate; or (ii) otherwise directed to the Member, its affiliates and associated
persons, in the aggregate; or (D) as a result of the Offering and any transactions contemplated at the time of the Offering: (i) the
Member will be an affiliate of the Company; (ii) the Member will become publicly owned; or (iii) the Company will become a Member or
form a broker-dealer subsidiary.
(ggg)
Except as described in the Statutory Prospectus and the Prospectus, to the
Company’s knowledge, none of the Sponsor, directors or officers of the Company is subject to a non-competition agreement or
non-solicitation agreement with any employer or prior employer that could materially affect its, his or her ability to be and act in
the capacity of stockholder, officer or director of the Company, as applicable.
(hhh)
The Company has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(iii)
The Company does not own an interest in any corporation, partnership,
limited liability company, joint venture, trust or other entity.
(jjj)
No relationship, direct or indirect, exists between or among any of the
Company or any affiliate of the Company, on the one hand, and the Sponsor or any director, director nominee, officer,
stockholder, special advisor, customer or supplier of the Company or any affiliate of the Company, on the other hand, which is
required by the Act or the Exchange Act to be described in the Registration Statement, Statutory Prospectus or the Prospectus
that is not described as required. There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers,
directors or director nominees of the Company or any of their respective family members, except as disclosed in the Registration
Statement, Statutory Prospectus and the Prospectus. The Company has not extended or maintained credit, arranged for the
extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or officer of the
Company.
(kkk)
Upon delivery and payment for the Underwritten Securities on the Closing
Date, the Company will not be subject to Rule 419 and none of the Company’s outstanding securities will be deemed to be a
“▇▇▇▇▇ stock” as defined in Rule 3a51-1 under the Exchange Act.
(lll)
From the time of the initial confidential submission of the
Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged, directly or through
any person authorized to act on its behalf, in any Testing-the-Waters Communication) through the Execution Time, the Company
has been and is an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging
Growth Company”). “Testing-the-Waters Communication” means any oral or
written communication with potential investors undertaken in reliance on Section 5(d) or Rule 163B of the Act.
(mmm)
The Company (i) has not alone engaged in any Testing-the-Waters
Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are
qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors
within the meaning of Rule 501 under the Act and (ii) has not authorized anyone other than the Representatives to engage
in Testing-the-Waters Communications. The Company reconfirms that the Representatives has been authorized to act on its
behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters
Communications other than those listed on Schedule III hereto. “Written
Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Act.
(nnn)
The Company’s website and the information technology systems used
by the Company (collectively, “IT Systems”) operate and perform in all material
respects as required in connection with the operation of the business of the Company as currently conducted, free and
clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants.
Any certificate signed by any officer of the Company and delivered to the Representatives
or counsel for the Underwriters in connection with the Offering shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase price of $9.80 per Unit, the amount of
the Underwritten Securities set forth opposite such Underwriter’s name in Schedule I hereto; provided, however, that 1,980,000 of the Underwritten Securities to be purchased by the
Underwriters, allocated among the Underwriters pro rata, shall be purchased by the Underwriters at a purchase price of
$10.00 per Unit, rather than $9.80 per Unit, in accordance with the agreement of the Underwriters to forego the
up-front discount of $0.20 per Unit otherwise applicable in respect of such Underwritten Securities.
(b)
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to 3,000,000 Option Securities at the same purchase price per Unit as the
Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments
in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at
any time on or before the 45th day after the date of the Prospectus upon written notice by the Representatives to
the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Securities to be purchased by each Underwriter shall be based
upon the same percentage of the total number of the Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as the Representatives in
their absolute discretion shall make to eliminate any fractional shares.
(c)
In addition to the discount from the public offering price
represented by the purchase price set forth in the first sentence of Section 2(a) of this Agreement (the
Underwriters acknowledging that such discount shall not be retained by them in respect of any Units purchased by
certain private funds affiliated with Pacific Investment Management Company LLC or their respective affiliates,
which amounts shall be for the account of the Company), and subject to Section 5(gg) of this Agreement, the
Company hereby agrees to pay to the Underwriters a deferred discount of $0.35 per Unit (including both
Underwritten Securities and Option Securities) purchased hereunder (the “Deferred
Discount”). The Underwriters hereby agree that if no Business Combination is consummated within the time
period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the holders
of the Common Stock included in the Securities sold pursuant to this Agreement (the “Public Stockholders”), (i) the Underwriters will forfeit any rights or claims to the Deferred
Discount and (ii) the trustee under the Trust Agreement is authorized to distribute the Deferred Discount to the
Public Stockholders on a pro rata basis.
3. Delivery and Payment.
Delivery of and payment for the Underwritten Securities and the Option Securities
(if the option provided for in Section 2 hereof shall have been exercised on or before the second Business Day
prior to the Closing Date) shall be made at 9:00 a.m., New York City time, on October 2, 2020, or at such time on
such later date not more than three Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof by wire transfer payable in same-day funds
to an account specified by the Company and to the Trust Account as described below in this Section 3. Delivery of
the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust
Company (“DTC”) unless the Representatives shall otherwise instruct.
(a)
Payment for the Underwritten Securities shall be made as
follows: $200,000,000 of the net proceeds for the Underwritten Securities (including $7,000,000 of Deferred
Discount) shall be deposited in the Trust Account pursuant to the terms of the Trust Agreement along with such
portion of the proceeds from the sale of the Private Placement Warrants (the “Private
Placement Portion”) in order for the Trust Account to equal the product of the number of Securities
sold and the Public Offering price per Unit as set forth on the cover of the Prospectus upon delivery to the
Representatives of the Underwritten Securities through the facilities of DTC or, if the Representatives have
otherwise instructed, upon delivery to the Representatives of certificates (in form and substance satisfactory
to the Representatives) representing the Underwritten Securities, in each case for the account of the
Underwriters. The Underwritten Securities shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two Business Days prior to the Closing
Date. If delivery is not made through the facilities of DTC, the Company will permit the Representatives to
examine and package the Underwritten Securities for delivery, at least one Business Day prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Underwritten Securities except upon tender of
payment by the Representatives for all the Underwritten Securities. Payment by the Underwriters for the
Underwritten Securities is contingent on the (i) payment by the Sponsor to the Company for the Private Placement
Warrants and (ii) payment to the Representatives of the Private Placement Portion by or at the direction of the
Company, in each case substantially contemporaneous with the closing of the sale of the Underwritten Securities.
(b)
Payment for the Option Securities shall be made as
follows: $9.80 per Option Security (including $0.35 per Option Security of Deferred Discount) shall be
deposited in the Trust Account pursuant to the terms of the Trust Agreement along with such portion of the
proceeds from the sale of the Private Placement Warrants in order for the Trust Account together with the
proceeds to be received pursuant to this clause to equal the product of the number of Option Securities sold
and the Public Offering price per Unit as set forth on the cover of the Prospectus upon delivery to the
Representatives of the Option Securities through the facilities of DTC or, if the Representatives have
otherwise instructed, upon delivery to the Representatives of certificates (in form and substance satisfactory
to the Representatives) representing the Option Securities (or through the facilities of DTC), in each case
for the account of the Underwriters. The Option Securities shall be registered in such name or names and in
such authorized denominations as the Representatives may request in writing at least two Business Days prior
to the Closing Date. If delivery is not made through the facilities of DTC, the Company will permit the
Representatives to examine and package the Option Securities for delivery, at least one Business Day prior to
the Closing Date. The Company shall not be obligated to sell or deliver the Option Securities except upon
tender of payment by the Representatives for all the Option Securities to be purchased. Payment by the
Underwriters for the Option Securities is contingent on the (i) payment by the Sponsor to the Company for the
applicable number of additional Private Placement Warrants and (ii) deposit of such portion of the proceeds
from the sale of the additional Private Placement Warrants in order for the Trust Account, together with the
proceeds to be received pursuant to this clause (b), to equal the product of the number of Option Securities
sold and the Public Offering price per Unit as set forth on the cover of the Prospectus by or at the direction
of the Company into the Trust Account, in each case substantially contemporaneous with the closing of the sale
of the Option Securities.
If the option provided for in Section 2 hereof is exercised after the third
Business Day prior to the Closing Date, the Company will deliver the Option Securities (at the expense of the
Company) to Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, BofA Securities,
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, on the date specified by the Representatives (which shall be at least three Business Days after
exercise of said option) for the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof to the Trust Account as
described above in Section 3(b). If settlement for the Option Securities occurs after the Closing Date, the
Company will deliver to the Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and
letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters.
It is understood that the several Underwriters propose to offer the Securities
for sale to the public as set forth in the Prospectus (the “Offering”).
5. Agreements.
The Company agrees with the several Underwriters that:
(a)
Prior to the termination of the Offering, the Company
will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment, supplement or Rule 462(b) Registration Statement to which you
reasonably object. The Company will cause the Prospectus, properly completed, and any supplement thereto to
be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the
Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication
shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to
the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission
or its staff for any amendment of the Registration Statement, any Rule 462(b) Registration Statement or any
Written Testing-the-Waters Communication or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, any notice objecting to its use or any order preventing or suspending the use of the
Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the
institution or threatening of any proceedings for that purpose or pursuant to Section 8A of the Act and (v)
of the receipt by the Company of any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order
or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its best efforts to have such amendment or
new registration statement declared effective as soon as practicable.
(b)
If, at any time prior to the filing of the
Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Statutory
Prospectus would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in the light of the circumstances under which they were
made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use
of the Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the
Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement
to you in such quantities as you may reasonably request.
(c)
If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (i) notify the Representatives of any such event; (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or effect such compliance; and (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably request.
(d)
As soon as practicable, the Company will make
generally available to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of
the Act and Rule 158; provided that the Company will be deemed to have furnished such statements to
its security holders and the Representatives to the extent they are filed on the Commission’s
Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e)
The Company will not make any offer relating
to the Securities that constitutes or would constitute a Free Writing Prospectus or a portion
thereof required to be filed by the Company with the Commission or retained by the Company under
Rule 433.
(f)
The Company will furnish to the
Representatives and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus,
the Prospectus and any supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all documents relating to the
Offering.
(g)
The Company will arrange, if necessary,
for the qualification of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in effect so long as
required for the distribution of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h)
The Company will not, without the prior
written consent of the Representatives, (x) offer, sell, contract to sell, pledge, hedge or
otherwise dispose of (or enter into any transaction that is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the Company), directly
or indirectly, including the filing or confidential submission (or participation in the filing
or confidential submission) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with respect to, any Units,
shares of Common Stock, Warrants or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock or publicly announce an intention to effect any such
transaction during the period commencing on the date hereof and ending 180 days after the date
of this Agreement; provided, however, that the Company may (1) issue and sell the Private Placement
Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in
Section 2 hereof, (3) register with the Commission pursuant to the Registration and
Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder
Rights Agreement, the resale of the securities covered thereby, (4) register with the
Commission pursuant to the Warrant Agreement, in accordance with the terms of the Warrant
Agreement, the issuance of the shares of Common Stock to be issued upon exercise of the
Warrants, and (5) issue securities in connection with a Business Combination or (y) release
the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in
the Insider Letter.
(i)
The Company will not take, directly or
indirectly, any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
the Securities.
(j)
The Company agrees to pay the costs
and expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus
and each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus
and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of this
Agreement and all other agreements or documents printed (or reproduced) and delivered in
connection with the Offering; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the New York Stock Exchange; (vi) the printing
and delivery of a preliminary blue sky memorandum, any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws of the several
states, and any filings required to be made with FINRA (including filing fees and the
reasonable and documented fees and expenses of counsel for the Underwriters relating to
such filings, memorandum, registration and qualification in an aggregate amount up to
$25,000); (vii) the transportation and other expenses incurred by or on behalf of the
Company (and not the Underwriters) in connection with presentations to prospective
purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants
and the fees and expenses of counsel for the Company; and (ix) all other costs and
expenses incident to the performance by the Company of its obligations hereunder.
(k)
For a period commencing on the
Effective Date and ending five (5) years from the date of the consummation of the
Business Combination or until such earlier time at which the Liquidation occurs, the
Company will use its best efforts to maintain the registration of the shares of Common
Stock and Warrants under the provisions of the Exchange Act, except after giving effect
to a going private transaction after the completion of a Business Combination. The
Company will not deregister the Units, shares of Common Stock or Warrants under the
Exchange Act (except in connection with a going private transaction after the completion
of a Business Combination) without the prior written consent of the Representatives.
(l)
The Company shall, on the date
hereof, retain its independent registered public accounting firm to audit the balance
sheet of the Company as of the Closing Date (the “Audited
Balance Sheet”) reflecting the receipt by the Company of the proceeds of the
Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available,
the Company shall promptly, but not later than four Business Days after the Closing
Date, file a Current Report on Form 8-K with the Commission, which Report shall
contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the
proceeds from the exercise of all or any portion of the option provided for in Section
2 hereof, the Company shall promptly, but not later than four Business Days after the
receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which
report shall disclose the Company’s sale of the Option Securities and its receipt of
the proceeds therefrom.
(m)
For a period commencing on the
Effective Date and ending five (5) years from the date of the consummation of the
Business Combination or until such earlier time at which the Liquidation occurs or
the shares of Common Stock and Warrants cease to be publicly traded, 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, the filing of the Company’s Form 10-Q quarterly report and
the mailing, if any, of quarterly financial information to stockholders.
(n)
For a period commencing on
the Effective Date and ending five (5) years from the date of the consummation of
the Business Combination or until such earlier time at which the Liquidation
occurs, the Company shall, to the extent such information or documents are not
otherwise publicly available, upon written request from the Representatives,
furnish to the Representatives 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, to the extent such information or
documents are not otherwise publicly available, upon written request from the
Representatives promptly furnish to the Representatives: (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 Representatives may from time to
time reasonably request, all subject to the execution of a satisfactory
confidentiality agreement. Any registration statements, financial statements,
periodic and special reports or other additional documents referred to in the
preceding sentence filed on ▇▇▇▇▇ will be considered furnished for the purposes of
this section.
(o)
For a period commencing on
the Effective Date and ending five (5) years from the date of the consummation
of the Business Combination or until such earlier time at which the Liquidation
occurs or the shares of Common Stock and Warrants cease to be publicly traded,
the Company shall retain a transfer and warrant agent.
(p)
The Company will not
consummate a Business Combination with any entity that is affiliated with the
Sponsor or any of the Company’s officers or directors unless it or a committee
of independent and disinterested members of the Company’s Board of Directors
obtains an opinion from an independent investment banking firm, or from an
independent accounting firm, that such Business Combination is fair to the
Company from a financial point of view. Other than the 60,000 restricted
Founder Shares transferred to ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ as compensation for her
service as a consultant, and any additional compensation for ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇▇
that the board of the Company may approve in the future in connection with her
consulting arrangement with the Company. the Company shall not pay the Sponsor
or its affiliates or any of the Company’s officers, directors or any of their
respective affiliates any fees or compensation for services rendered to the
Company prior to, or in connection with, the consummation of a Business
Combination; provided, however, that such officers, directors
and affiliates (i) may receive reimbursement for out-of-pocket expenses
incurred by them in connection with activities on the Company’s behalf to the
extent that such expenses do not exceed the amount of available proceeds not
deposited in the Trust Account and (ii) may be repaid loans as described in
the Registration Statement.
(q)
The Company will apply
the net proceeds from the Offering and the sale of the Private Placement
Warrants received by it in a manner consistent in all material respects with
the applications described under the caption “Use of Proceeds” in the
Statutory Prospectus and the Prospectus.
(r)
For a period of 90
days following the Effective Date, in the event any person or entity
(regardless of any FINRA affiliation or association) is engaged to assist
the Company in its search for a merger candidate or to provide any other
merger and acquisition services, or has provided or will provide any
investment banking, financial, advisory and/or consulting services to the
Company, the Company agrees that it shall promptly provide to FINRA (via a
FINRA submission), the Representatives and their counsel a notification
prior to entering into the agreement or transaction relating to a
potential Business Combination: (i) the identity of the person or entity
providing any such services; (ii) complete details of all such services
and copies of all agreements governing such services prior to entering
into the agreement or transaction; and (iii) justification as to why the
value received by any person or entity for such services is not
underwriting compensation for the Offering. The Company also agrees that
proper disclosure of such arrangement or potential arrangement will be
made in the tender offer materials or proxy statement, as applicable,
which the Company may file in connection with the Business Combination for
purposes of offering redemption of shares held by its stockholders or for
soliciting stockholder approval, as applicable.
(s)
The Company shall
advise FINRA, the Representatives and their counsel if it is aware that
any 5% or greater stockholder of the Company becomes an affiliate or
associated person of a Member participating in the distribution of the
Securities.
(t)
The Company
shall cause the proceeds of the Offering and the sale of the Private
Placement Warrants to be held in the Trust Account to be invested only
in United States government treasury obligations with a maturity of
180 days or less or in money market funds meeting certain conditions
under Rule 2a-7 under the Investment Company Act as set forth in the
Trust Agreement and disclosed in the Statutory Prospectus and the
Prospectus. The Company will otherwise conduct its business in a
manner so that it will not become subject to the Investment Company
Act. Furthermore, once the Company consummates a Business Combination,
it will not be required to register as an investment company under the
Investment Company Act.
(u)
During the
period prior to the Company’s initial Business Combination or
Liquidation, the Company may instruct the trustee under the Trust
Agreement to release interest from the Trust Account funds (i) in
the amounts necessary to pay income and franchise tax obligations,
and (ii) to Public Stockholders who properly redeem their Public
Stock (as defined below) in connection with a vote to approve an
amendment to the Company’s Amended and Restated Certificate of
Incorporation that would affect the substance or timing of the
Company’s obligation to redeem 100% of the Public Stock if the
Company does not consummate an initial Business Combination within
24 months after the Closing Date. Otherwise, all funds held in the
Trust Account (including any interest income earned on the amounts
held in the Trust Account (net of taxes payable thereon)) will
remain in the Trust Account until the earlier of the consummation of
the Company’s initial Business Combination or the Liquidation; provided, however, that in the event of
the Liquidation, up to $100,000 of interest income may be released
to the Company if the proceeds of the Offering held outside of the
Trust Account are not sufficient to cover the costs and expenses
associated with implementing the Company’s plan of dissolution.
(v)
The Company
will reserve and keep available that maximum number of its
authorized but unissued securities that are issuable upon
settlement of exercise of any of the Warrants and the Private
Placement Warrants outstanding from time to time and the
conversion of the Founder Shares.
(w)
Prior to
the consummation of a Business Combination or the Liquidation,
the Company shall not issue any shares of Common Stock, Warrants
or any options or other securities convertible into shares of
Common Stock, or any preferred shares, in each case, that
participate in any manner in the Trust Account or that vote as a
class with the shares of Common Stock on a Business Combination.
(x)
Prior to
the consummation of a Business Combination or the Liquidation,
the Company’s audit committee will review on a quarterly basis
all payments made to the Sponsor, to the Company’s officers or
directors, any special advisor or to the Company’s or any of
such other persons’ respective affiliates.
(y)
The
Company agrees that it will use commercially reasonable
efforts to prevent the Company from becoming subject to Rule
419 prior to the consummation of any Business Combination,
including, but not limited to, using its best efforts to
prevent any of the Company’s outstanding securities from
being deemed to be a “▇▇▇▇▇
stock” as defined in Rule 3a51-1 under the Exchange
Act during such period.
(z)
To
the extent required by Rule 13a-15(e) under the Exchange
Act, the Company will maintain “disclosure controls and
procedures” (as defined under Rule 13a-15(e) under the
Exchange Act) and 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 U.S. GAAP and to
maintain accountability for assets, (iii) access to assets
is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded
accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken
with respect to any differences.
(aa)
The
Company will use commercially reasonable efforts to
effect and, for a period commencing on the Effective
Date and ending five (5) years from the date of the
consummation of the Business Combination or until such
earlier time at which Liquidation occurs, maintain the
listing of the Units, shares of Common Stock and
Warrants on the New York Stock Exchange (or another
national securities exchange).
(bb)
As
soon as legally required to do so, the Company and its
directors and officers, in their capacities as such,
have taken or shall take all actions necessary to
comply with any applicable provisions of the Sarbanes
Oxley Act, including Section 402 related to loans and
Sections 302 and 906 related to certifications, and to
comply with the New York Stock Exchange Listed Company
Manual.
(cc)
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 Amended and
Restated Certificate of Incorporation or bylaws.
(dd)
The Company will seek to have all vendors,
service providers (other than independent
accountants), prospective target businesses,
lenders or other entities with which it does
business enter into agreements waiving any right,
title, interest or claim of any kind in or to any
monies held in the Trust Account for the benefit
of the Public Stockholders. The Company may forego
obtaining such waivers only if the Company shall
have received the approval of its Chief Executive
Officer.
(ee)
The Company may consummate the initial
Business Combination and conduct redemptions of
shares of Common Stock for cash upon
consummation of such Business Combination
without a stockholder vote pursuant to Rule
13e-4 and Regulation 14E under the Exchange Act,
including the filing of tender offer documents
with the Commission. Such tender offer documents
will contain substantially the same financial
and other information about the initial Business
Combination and the redemption rights as is
required under the Commission’s proxy rules and
will provide each stockholder of the Company
with the opportunity prior to the consummation
of the initial Business Combination to redeem
the shares of Common Stock held by such
stockholder for an amount of cash equal to (A)
the aggregate amount then on deposit in the
Trust Account as of two Business Days prior to
the consummation of the initial Business
Combination, representing (x) the proceeds held
in the Trust Account from the Offering and the
sale of the Private Placement Warrants and (y)
any interest income earned on the funds held in
the Trust Account not previously released to pay
franchise and income taxes, divided by (B) the
total number of shares of Common Stock sold as
part of the Units in the Offering (the “Public Stock”)
then outstanding. If, however, a stockholder
vote is required by law or stock exchange
listing requirement in connection with the
initial Business Combination or the Company
decides to hold a stockholder vote for business
or other legal reasons, the Company will submit
such Business Combination to the Company’s
stockholders for their approval (“Business
Combination Vote”). With respect to the
initial Business Combination Vote, if any, the
Sponsor, officers and directors have agreed to
vote all of their Founder Shares and any other
shares of Common Stock purchased during or after
the Offering in favor of the Company’s initial
Business Combination. If the Company seeks
stockholder approval of the initial Business
Combination, the Company will offer to each
Public Stockholder holding shares of Common
Stock the right to have its shares redeemed in
conjunction with a proxy solicitation pursuant
to the proxy rules of the Commission at a per
share redemption price (the “Redemption Price”)
equal to (I) the aggregate amount then on
deposit in the Trust Account as of two Business
Days prior to the consummation of the initial
Business Combination, representing (1) the
proceeds held in the Trust Account from the
Offering and certain of the proceeds from the
sale of the Private Placement Warrants and (2)
any interest income earned on the funds held in
the Trust Account not previously released to pay
franchise and income taxes, divided by (II) the
total number of shares of Public Stock then
outstanding. If the Company seeks stockholder
approval of the initial Business Combination,
the Company may proceed with such Business
Combination only if a majority of the
outstanding shares of Common Stock voted by the
stockholders at a duly held stockholders’
meeting are voted to approve such Business
Combination. If, after seeking and receiving
such stockholder approval, the Company elects to
so proceed, it will redeem shares, at the
Redemption Price, from those Public Stockholders
who affirmatively requested such redemption.
Only Public Stockholders holding shares of
Common Stock who properly exercise their
redemption rights, in accordance with the
applicable tender offer or proxy materials
related to such Business Combination and the
Amended and Restated Certificate of
Incorporation and bylaws of the Company, shall
be entitled to receive distributions from the
Trust Account in connection with an initial
Business Combination, and the Company shall pay
no distributions with respect to any other
holders of shares of capital stock of the
Company in connection therewith. In the event
that the Company does not effect a Business
Combination by twenty-four (24) months from the
closing of the Offering, the Company will (i)
cease all operations except for the purpose of
winding up, (ii) as promptly as reasonably
possible but not more than ten (10) Business
Days thereafter, subject to lawfully available
funds therefor, redeem 100% of the Public Stock,
at a per-share price, payable in cash, equal to
the aggregate amount then on deposit in the
Trust Account (including interest not previously
released to the Company to pay franchise and
income taxes, and less up to $100,000 of
interest to pay dissolution expenses), divided
by the number of then outstanding Public Stock,
which redemption will completely extinguish
Public Stockholders’ rights as stockholders
(including the right to receive further
liquidating distributions, if any), subject to
applicable law, and (iii) as promptly as
reasonably possible following such redemption,
subject to the approval of the Company’s
remaining stockholders and the Company’s board
of directors, dissolve and liquidate, subject in
each case to the Company’s obligations under
Delaware law to provide for claims of creditors
and the requirements of other applicable law.
Only Public Stockholders holding shares of
Common Stock included in the Securities shall be
entitled to receive such redemption amounts and
the Company shall pay no such redemption amounts
or any distributions in liquidation with respect
to any other shares of the Company. The Sponsor
and the Company’s officers and directors have
agreed that they will not propose any amendment
to the Amended and Restated Certificate of
Incorporation or bylaws that would affect the
substance or timing of the Company’s obligation
to redeem 100% of the outstanding Public Stock
if the Company has not consummated a Business
Combination within twenty-four (24) months from
the closing of the Offering unless the Company
offers to redeem the Public Stock in connection
with such amendment, as described in the
Statutory Prospectus and Prospectus.
(ff)
In the event that the Company desires
or is required by an applicable law or
regulation to cause an announcement (“Business
Combination Announcement”) to be
placed in The Wall Street Journal, The New
York Times or any other news or media
publication or outlet or to be made via a
public filing with the Commission announcing
the consummation of the Business Combination
that indicates that the Underwriters were the
underwriters in the Offering, the Company
shall supply the Representatives with a draft
of the Business Combination Announcement and
provide the Representatives with a reasonable
advance opportunity to comment thereon,
subject to the agreement of the Underwriters
to keep confidential such draft announcement
in accordance with the Representatives’
standard policies regarding confidential
information.
(gg)
Upon the consummation
of the initial Business Combination, each of
the Company and the Representatives will
direct the Trustee to pay the
Representatives, on behalf of the
Underwriters, the Deferred Discount out of
the proceeds of the Offering held in the
Trust Account. The Underwriters shall have
no claim to payment of any interest earned
on the portion of the proceeds held in the
Trust Account representing the Deferred
Discount. If the Company fails to consummate
its initial Business Combination within
twenty-four (24) months from the closing of
the Offering (or later if the Public
Stockholders approve an amendment to the
Amended and Restated Certificate of
Incorporation extending such deadline), the
Deferred Discount will not be paid to the
Representatives and will, instead, be
included in the Liquidation distribution of
the proceeds held in the Trust Account made
to the Public Stockholders. In connection
with any such Liquidation, the Underwriters
forfeit any rights or claims to the Deferred
Discount.
(hh)
The Company will
endeavor in good faith, in cooperation
with the Representatives, at or prior to
the time the Registration Statement
becomes effective, to qualify the
Securities for offering and sale under the
securities laws of such jurisdictions as
the Representatives may reasonably
designate and will maintain such
qualifications in effect so long as
required for the distribution of the
Securities, provided that no such
qualification shall be required in any
jurisdiction where, as a result thereof,
the Company would be subject to service of
general process or to taxation as a
foreign corporation doing business in such
jurisdiction. Until the earliest of (i)
the date on which all Underwriters shall
have ceased to engage in market-making
activities in respect of the Securities,
(ii) the date on which the Securities are
listed on the New York Stock Exchange (or
any successor thereto), (iii) a going
private transaction after the completion
of a Business Combination, and (iv) the
date of the liquidation of the Company, in
each jurisdiction where such qualification
shall be effected, the Company will,
unless the Representatives agree that such
action is not at the time necessary or
advisable, use all reasonable efforts to
file and make such statements or reports
at such times as are or may be required to
qualify the Securities for offering and
sale under the securities laws of such
jurisdiction.
(ii)
If at any time
following the distribution of any
Written Testing-the-Waters
Communication, there occurred or occurs
an event or development as a result of
which such Written Testing-the-Waters
Communication included or would include
any untrue statement of a material fact
or omitted or would omit to state any
material fact necessary to make the
statements therein in light of the
circumstances under which they were made
at such time, not misleading, the
Company will promptly (i) notify the
Representatives so that use of the
Written Testing-the-Waters Communication
may cease until it is amended or
supplemented; (ii) amend or supplement,
at its own expense, such Written
Testing-the-Waters Communication to
eliminate or correct such untrue
statement or omission; and (iii) supply
any amendment or supplement to the
Representatives in such quantities as
may be reasonably requested.
(jj)
The Company will
promptly notify the Representatives if
the Company ceases to be an Emerging
Growth Company at any time prior to
the later of (i) completion of the
distribution of the Securities within
the meaning of the Act and (ii)
completion of the 180-day restricted
period referred to in Section 5(h)
hereof.
(kk)
Upon the
earlier to occur of the expiration
or termination of the Underwriters’
over-allotment option, the Company
shall cancel or otherwise effect the
forfeiture of Founder Shares from
the Sponsor in an aggregate amount
equal to the number of Founder
Shares determined by multiplying (a)
750,000 by (b) a fraction, (i) the
numerator of which is 3,000,000
minus the number of Option
Securities purchased by the
Underwriters upon the exercise of
their over-allotment option, and
(ii) the denominator of which is
3,000,000. For the avoidance of
doubt, if the Underwriters exercise
their over-allotment option in full,
the Company shall not cancel or
otherwise effect the forfeiture of
the Founder Shares pursuant to this
subsection.
6. Conditions
to the Obligations of the
Underwriters.
The
obligations of the Underwriters to
purchase the Underwritten Securities
and the Option Securities, as the
case may be, shall be subject to the
accuracy of the representations and
warranties on the part of the
Company contained herein as of the
Execution Time, the Closing Date and
any settlement date pursuant to
Section 3 hereof, to the accuracy of
the statements of the Company made
in any certificates pursuant to the
provisions hereof, to the
performance by the Company of its
obligations hereunder and to the
following additional conditions:
(a)
The
Prospectus, and any supplement
thereto, have been filed in the
manner and within the time period
required by Rule 424(b); and no
stop order suspending the
effectiveness of the Registration
Statement or any notice objecting
to its use shall have been issued
and no proceedings for that
purpose shall have been instituted
or threatened.
(b)
The Company
shall have requested and caused
Ropes & ▇▇▇▇ LLP, counsel
for the Company, to have
furnished to the Representatives
its opinions dated the Closing
Date or settlement date (as
applicable) and addressed to the
Representatives, in a form
reasonably acceptable to the
Representatives.
(c)
The
Representatives shall have
received from ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, such opinion or
opinions, dated the Closing
Date or settlement date (as
applicable) and addressed to
the Representatives, with
respect to the issuance and
sale of the Securities, the
Registration Statement, the
Statutory Prospectus, the
Prospectus (together with any
supplement thereto) and other
related matters as the
Representatives may reasonably
require, and the Company shall
have furnished to such counsel
such documents as they request
for the purpose of enabling
them to pass upon such
matters.
(d)
The
Company shall have furnished
to the Representatives a
certificate of the Company,
signed by the Chief
Executive Officer and the
principal financial or
accounting officer of the
Company, dated the Closing
Date or settlement date (as
applicable), to the effect
that the signers of such
certificate have carefully
examined the Registration
Statement, each Preliminary
Prospectus, the Prospectus
and any amendment or
supplement thereto, as well
as each road show used in
connection with the offering
of the Securities, and this
Agreement and that:
(i)
the representations
and warranties of the
Company in this Agreement
are true and correct on and
as of the Closing Date or
settlement date (as
applicable) with the same
effect as if made on the
Closing Date or settlement
date (as applicable), and
the Company has complied
with all the agreements and
satisfied all the conditions
on its part to be performed
or satisfied at or prior to
the Closing Date or
settlement date (as
applicable);
(ii)
no stop order
suspending the effectiveness
of the Registration
Statement or any notice
objecting to its use has
been issued, and no
proceedings for that purpose
have been instituted or, to
the Company’s knowledge,
threatened; and
(iii)
since the date of
the most recent financial
statements included in the
Statutory Prospectus and the
Prospectus (exclusive of any
supplement thereto), there
has been no Material Adverse
Effect, except as set forth
in or contemplated in the
Statutory Prospectus and the
Prospectus (exclusive of any
supplement thereto).
(e)
The Company shall
have furnished to the
Representatives a
certificate signed by the
Secretary or Assistant
Secretary of the Company,
dated the Closing Date,
certifying that the
Amended and Restated
Certificate of
Incorporation and bylaws
of the Company are true
and complete, have not
been modified and are in
full force and effect,
that the resolutions
relating to the Offering
contemplated by this
Agreement are in full
force and effect and have
not been modified, copies
of all correspondence
between the Company or its
counsel and the
Commission, and as to the
incumbency of the officers
of the Company. The
documents referred to in
such certificate shall be
attached to such
certificate.
(f)
The Company
shall have requested and
caused WithumSmith to
have furnished to the
Representatives, at the
Execution Time and at
the Closing Date or
settlement date (as
applicable), letters,
dated respectively as of
the Execution Time and
as of the Closing Date
or settlement date (as
applicable), in form and
substance satisfactory
to the Representatives,
confirming that they are
a registered public
accounting firm that is
independent with respect
to the Company within
the meaning of the Act
and the Exchange Act and
the applicable rules and
regulations adopted by
the Commission
thereunder and that they
have performed a review
of the financial
statements of the
Company included in the
Registration Statement,
Statutory Prospectus and
Prospectus, provided
that the cutoff date
shall not be more than
two Business Days prior
to such Execution Time
or Closing Date or
settlement date, as
applicable, and stating
in effect that:
(i)
in
their opinion the
financial statements and
financial statement
schedules included in
the Registration
Statement, the Statutory
Prospectus and the
Prospectus and reported
on by them comply as to
form in all material
respects with the
applicable accounting
requirements of the Act
and the related rules
and regulations adopted
by the Commission; and
(ii)
they
have performed certain
other specified
procedures as a result
of which they determined
that certain information
of an accounting,
financial or statistical
nature (which is limited
to accounting, financial
or statistical
information derived from
the general accounting
records of the Company)
set forth in the
Registration Statement,
the Statutory Prospectus
and the Prospectus,
including the
information set forth
under the captions
“Dilution” and
“Capitalization” in the
Statutory Prospectus and
the Prospectus, agrees
with the accounting
records of the Company,
excluding any questions
of legal interpretation.
References to the
Prospectus in this
paragraph (f) include
any supplement thereto
at the date of the
letter.
(g)
Subsequent
to the Execution Time
or, if earlier, the
dates as of which
information is given
in the Registration
Statement (exclusive
of any amendment
thereof), the
Statutory Prospectus
and the Prospectus
(exclusive of any
supplement thereto),
there shall not have
been any change, or
any development
involving a
prospective change, in
or affecting the
earnings, business,
management,
properties, assets,
rights, operations,
condition (financial
or otherwise) or
prospects of the
Company, whether or
not arising from
transactions in the
ordinary course of
business, except as
set forth in or
contemplated in the
Statutory Prospectus
and the Prospectus
(exclusive of any
supplement thereto)
the effect of which
is, in the sole
judgment of the
Representatives, so
material and adverse
as to make it
impractical or
inadvisable to proceed
with the offering or
delivery of the
Securities as
contemplated by the
Registration Statement
(exclusive of any
amendment thereof),
the Statutory
Prospectus and the
Prospectus (exclusive
of any supplement
thereto).
(h)
Prior
to the Closing Date
or settlement date
(as applicable), the
Company shall have
furnished to the
Representatives such
further information,
certificates and
documents as the
Representatives may
reasonably request.
(i)
FINRA
shall not have
raised any
objection with
respect to the
fairness or
reasonableness of
the underwriting
or other
arrangements of
the transactions
contemplated
hereby.
(j)
The
Securities shall
be duly listed
subject to
notice of
issuance on the
New York Stock
Exchange,
satisfactory
evidence of
which shall have
been provided to
the
Representatives.
(k)
On the
Closing Date,
the Company
shall have
delivered to
the
Representatives
executed
copies of the
Trust
Agreement, the
Warrant
Agreement, the
Founder’s
Subscription
Agreement, the
Warrant
Purchase
Agreement, the
Insider Letter
and the
Registration
and
Stockholder
Rights
Agreement.
(l)
At
least one
Business Day
prior to the
Closing Date
or settlement
date (as
applicable),
the Company
shall have
caused the
applicable
purchase price
for the
Private
Placement
Warrants to be
deposited into
the Trust
Account.
(m)
No
order
preventing or
suspending the
sale of the
Securities in
any
jurisdiction
designated by
the
Representatives
pursuant to
Section 5(hh)
hereof shall
have been
issued as of
the Closing
Date or
settlement
date (as
applicable),
and no
proceedings
for that
purpose shall
have been
instituted or
shall have
been
threatened.
(n)
On or
before the
date of this
Agreement, the
Representatives
shall have
received a
certificate
satisfying the
beneficial
ownership due
diligence
requirements
of the
Financial
Crimes
Enforcement
Network (“FinCEN”)
from the
Company in
form and
substance
reasonably
satisfactory
to the
Representatives,
along with
such
additional
supporting
documentation
as the
Representatives
has requested
in connection
with the
verification
of the
foregoing
certificate.
If any
of the
conditions
specified in
this Section 6
shall not have
been fulfilled
when and as
provided in
this
Agreement, or
if any of the
opinions and
certificates
mentioned
above or
elsewhere in
this Agreement
shall not be
reasonably
satisfactory
in form and
substance to
the
Representatives
and counsel
for the
Underwriters,
this Agreement
and all
obligations of
the
Underwriters
hereunder may
be cancelled
at, or at any
time prior to,
the Closing
Date by the
Representatives.
Notice of such
cancellation
shall be given
to the Company
in writing or
by telephone
or facsimile
confirmed in
writing.
The
documents
required to be
delivered by
this Section 6
shall be
delivered in
electronic
format to
▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇
LLP, counsel
for the
Underwriters,
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇,
unless
otherwise
indicated
herein, on the
Closing Date
or settlement
date (as
applicable).
7. Reimbursement
of
Underwriters’
Expenses.
If the
sale of the
Securities
provided for
herein is not
consummated
because any
condition to
the
obligations of
the
Underwriters
set forth in
Section 6
hereof is not
satisfied,
because of any
termination
pursuant to
clause (i) of
Section 10
hereof or
because of any
refusal,
inability or
failure on the
part of the
Company to
perform any
agreement
herein or
comply with
any provision
hereof other
than by reason
of a default
by any of the
Underwriters,
the Company
will reimburse
the
Underwriters
severally
through the
Representatives
on demand for
all reasonable
out-of-pocket
expenses
(including
reasonable
fees and
disbursements
of counsel)
that shall
have been
incurred by
them in
connection
with the
proposed
purchase and
sale of the
Securities.
8. Indemnification
and
Contribution.
(a)
The
Company agrees
to indemnify
and hold
harmless each
Underwriter,
the directors,
officers,
employees and
agents of each
Underwriter,
each person
who controls
any
Underwriter
within the
meaning of
either the Act
or the
Exchange Act
and each
affiliate of
each
Underwriter
against any
and all
losses,
claims,
damages or
liabilities,
joint or
several, to
which they or
any of them
may become
subject under
the Act, the
Exchange Act
or other
Federal or
state
statutory law
or regulation,
at common law
or otherwise,
insofar as
such losses,
claims,
damages or
liabilities
(or actions in
respect
thereof) arise
out of or are
based upon any
untrue
statement or
alleged untrue
statement of a
material fact
contained in
the
Registration
Statement for
the
registration
of the
Securities as
originally
filed or in
any amendment
thereof, or in
any
Preliminary
Prospectus,
the Statutory
Prospectus,
the
Prospectus,
any road show
or any Written
Testing-the-Waters
Communication
or in any
amendment
thereof or
supplement
thereto, or
arise out of
or are based
upon the
omission or
alleged
omission to
state therein
a material
fact required
to be stated
therein or
necessary to
make the
statements
therein not
misleading,
and agrees to
reimburse each
such
indemnified
party, as
incurred, for
any legal or
other expenses
reasonably
incurred by
them in
connection
with
investigating
or defending
any such loss,
claim, damage,
liability or
action; 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 any such
untrue
statement or
alleged untrue
statement or
omission or
alleged
omission made
therein in
reliance upon
and in
conformity
with written
information
furnished to
the Company by
or on behalf
of any
Underwriter
through the
Representatives
specifically
for inclusion
therein, it
being
understood and
agreed that
the only such
information
furnished by
any
Underwriter
consists of
the
information
described in
the last
sentence of
Section 8(b)
hereof. This
indemnity
agreement will
be in addition
to any
liability that
the Company
may otherwise
have.
(b)
Each
Underwriter
severally and
not jointly
agrees to
indemnify and
hold harmless
the Company,
each of its
directors,
each of its
officers who
signs the
Registration
Statement, and
each person
who controls
the Company
within the
meaning of
either the Act
or the
Exchange Act,
to the same
extent as the
foregoing
indemnity from
the Company to
each
Underwriter,
but only with
reference to
written
information
relating to
such
Underwriter
furnished to
the Company by
or on behalf
of such
Underwriter
through the
Representatives
specifically
for inclusion
in the
documents
referred to in
the foregoing
indemnity.
This indemnity
agreement will
be in addition
to any
liability that
any
Underwriter
may otherwise
have. The
Company
acknowledges
that (x) the
list of
Underwriters
and their
respective
roles and
participation
in the sale of
the Securities
and (y) the
seventeenth,
eighteenth,
nineteenth,
twentieth and
twenty first
paragraphs
related to
stabilization,
syndicate
covering
transactions
and penalty
bids, each
under the
heading
“Underwriting”
in the
Preliminary
Prospectus,
the Statutory
Prospectus and
the
Prospectus,
constitute the
only
information
furnished in
writing by or
on behalf of
the several
Underwriters
for inclusion
in the
documents
referred to in
the foregoing
indemnity.
(c)
Promptly
after receipt
by an
indemnified
party under
this Section 8
of notice of
the
commencement
of any action,
such
indemnified
party will, if
a claim in
respect
thereof is to
be made
against the
indemnifying
party under
this Section
8, notify the
indemnifying
party in
writing of the
commencement
thereof; but
the failure so
to notify the
indemnifying
party (i) will
not relieve it
from liability
under
paragraph (a)
or (b) above
unless and to
the extent it
did not
otherwise
learn of such
action and
such failure
results in the
forfeiture by
the
indemnifying
party of
material
rights and
defenses and
(ii) will not,
in any event,
relieve the
indemnifying
party from any
obligations to
any
indemnified
party other
than the
indemnification
obligation
provided in
paragraph (a)
or (b) above.
The
indemnifying
party shall be
entitled to
appoint
counsel of the
indemnifying
party’s choice
at the
indemnifying
party’s
expense to
represent the
indemnified
party in any
action for
which
indemnification
is sought (in
which case the
indemnifying
party shall
not thereafter
be responsible
for the fees
and expenses
of any
separate
counsel
retained by
the
indemnified
party or
parties except
as set forth
below); provided,
however,
that such
counsel shall
be
satisfactory
to the
indemnified
party.
Notwithstanding
the
indemnifying
party’s
election to
appoint
counsel to
represent the
indemnified
party in an
action, the
indemnified
party shall
have the right
to employ
separate
counsel
(including
local
counsel), and
the
indemnifying
party shall
bear the
reasonable
fees, costs
and expenses
of such
separate
counsel if (i)
the use of
counsel chosen
by the
indemnifying
party to
represent the
indemnified
party would
present such
counsel with a
conflict of
interest, (ii)
the actual or
potential
defendants in,
or targets of,
any such
action include
both the
indemnified
party, and the
indemnifying
party and the
indemnified
party shall
have
reasonably
concluded that
there may be
legal defenses
available to
it and/or
other
indemnified
parties that
are different
from or
additional to
those
available to
the
indemnifying
party, (iii)
the
indemnifying
party shall
not have
employed
counsel
satisfactory
to the
indemnified
party to
represent the
indemnified
party within a
reasonable
time after
notice of the
institution of
such action or
(iv) the
indemnifying
party shall
authorize the
indemnified
party to
employ
separate
counsel at the
expense of the
indemnifying
party. An
indemnifying
party will
not, without
the prior
written
consent of the
indemnified
parties (which
consent shall
not be
unreasonably
withheld,
delayed or
conditioned),
settle or
compromise or
consent to the
entry of any
judgment with
respect to any
pending or
threatened
claim, action,
suit or
proceeding in
respect of
which
indemnification
or
contribution
may be sought
hereunder
(whether or
not the
indemnified
parties are
actual or
potential
parties to
such claim or
action) unless
(i) such
settlement,
compromise or
consent
includes an
unconditional
release of
each
indemnified
party from all
liability
arising out of
such claim,
action, suit
or proceeding
and (ii) does
not include a
statement as
to or an
admission of
fault,
culpability or
a failure to
act by or on
behalf of any
indemnified
party. If at
any time an
indemnified
party shall
have requested
an
indemnifying
party to
reimburse the
indemnified
party for fees
and expenses
of counsel,
such
indemnifying
party agrees
that it shall
be liable for
any settlement
of any
proceeding
effected
without its
written
consent if (i)
such
settlement is
entered into
more than 45
days after
receipt by
such
indemnifying
party of the
aforesaid
request, (ii)
such
indemnifying
party shall
have received
notice of the
terms of such
settlement at
least 45 days
prior to such
settlement
being entered
into and (iii)
such
indemnifying
party shall
not have
reimbursed
such
indemnified
party in
accordance
with such
request prior
to the date of
such
settlement.
(d)
In the
event that the
indemnity
provided in
paragraph (a)
or (b) of this
Section 8 is
unavailable to
or
insufficient
to hold
harmless an
indemnified
party for any
reason, the
Company and
the
Underwriters
severally
agree to
contribute to
the aggregate
losses,
claims,
damages and
liabilities
(including
legal or other
expenses
reasonably
incurred in
connection
with
investigating
or defending
the same)
(collectively
“Losses”)
to which the
Company and
one or more of
the
Underwriters
may be subject
in such
proportion as
is appropriate
to reflect the
relative
benefits
received by
the Company on
the one hand
and by the
Underwriters
on the other
from the
Offering; provided,
however,
that in no
case shall any
Underwriter
(except as may
be provided in
any agreement
among
underwriters
relating to
the Offering)
be responsible
for any amount
in excess of
the
underwriting
discount or
commission
applicable to
the Securities
purchased by
such
Underwriter
hereunder. If
the allocation
provided by
the
immediately
preceding
sentence is
unavailable
for any
reason, the
Company and
the
Underwriters
severally
shall
contribute 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 of
the
Underwriters
on the other
in connection
with the
statements or
omissions that
resulted in
such Losses as
well as any
other relevant
equitable
considerations.
Benefits
received by
the Company
shall be
deemed to be
equal to the
total net
proceeds from
the Offering
(before
deducting
expenses)
received by
it, and
benefits
received by
the
Underwriters
shall be
deemed to be
equal to the
total
underwriting
discounts and
commissions,
in each case
as set forth
on the cover
page of the
Prospectus.
Relative fault
shall be
determined by
reference to,
among other
things,
whether any
untrue or any
alleged untrue
statement of a
material fact
or the
omission or
alleged
omission to
state a
material fact
relates to
information
provided by
the Company on
the one hand
or the
Underwriters
on the other,
the intent of
the parties
and their
relative
knowledge,
access to
information
and
opportunity to
correct or
prevent such
untrue
statement or
omission. The
Company and
the
Underwriters
agree that it
would not be
just and
equitable if
contribution
were
determined by
pro rata
allocation or
any other
method of
allocation
that does not
take account
of the
equitable
considerations
referred to
above.
Notwithstanding
the provisions
of this
paragraph (d),
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.
For purposes
of this
Section 8,
each person
who controls
an Underwriter
within the
meaning of
either the Act
or the
Exchange Act
and each
director,
officer,
employee and
agent of an
Underwriter
shall have the
same rights to
contribution
as such
Underwriter,
and each
person who
controls the
Company within
the meaning of
either the Act
or the
Exchange Act,
each officer
of the Company
who shall have
signed the
Registration
Statement and
each director
of the Company
shall have the
same rights to
contribution
as the
Company,
subject in
each case to
the applicable
terms and
conditions of
this paragraph
(d).
(e)
In any
proceeding
relating to
the
Registration
Statement, the
Preliminary
Prospectus,
the Statutory
Prospectus,
any Written
Testing-the-Waters
Communication,
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 (i) the
federal courts
of the United
States of
America
located in the
City and
County of New
York, Borough
of Manhattan
and (ii) the
courts of the
State of New
York located
in the City
and County of
New York,
Borough of
Manhattan
(collectively,
the “Specified
Courts”),
agrees that
process
issuing from
such courts
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.
(f)
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
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,
its directors
or officers or
any person
controlling
any
Underwriter,
the Company,
its directors
or officers or
any persons
controlling
the Company,
(ii)
acceptance of
any Securities
and payment
therefor
hereunder, and
(iii) any
termination of
this
Agreement. A
successor to
any
Underwriter,
its directors
or officers 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 an
Underwriter.
If any
one or more
Underwriters
shall fail to
purchase and
pay for any of
the Securities
agreed to be
purchased by
such
Underwriter or
Underwriters
hereunder and
such failure
to purchase
shall
constitute a
default in the
performance of
its or their
obligations
under this
Agreement, the
remaining
Underwriters
shall be
obligated
severally to
take up and
pay for (in
the respective
proportions
that the
amount of
Securities set
forth opposite
their names in
Schedule I
hereto bears
to the
aggregate
amount of
Securities set
forth opposite
the names of
all the
remaining
Underwriters)
the Securities
that the
defaulting
Underwriter or
Underwriters
agreed but
failed to
purchase; provided,
however,
that in the
event that the
aggregate
amount of
Securities
that the
defaulting
Underwriter or
Underwriters
agreed but
failed to
purchase shall
exceed 10% of
the
Underwritten
Securities,
the remaining
Underwriters
shall have the
right to
purchase all
(but not less
than all), but
shall not be
under any
obligation to
purchase any,
of the
Securities. If
within one
Business Day
after such
default
relating to
more than 10%
of the
Underwritten
Securities the
remaining
Underwriters
do not arrange
for the
purchase of
such
Securities,
then the
Company shall
be entitled to
a further
period of one
Business Day
within which
to procure
another party
or parties
reasonably
satisfactory
to you to
purchase said
Securities. In
the event that
neither the
remaining
Underwriters
nor the
Company
purchase or
arrange for
the purchase
of all of the
Securities to
which a
default
relates as
provided in
this Section
9, this
Agreement will
terminate
without
liability to
any
nondefaulting
Underwriter or
the Company.
In the event
of a default
by any
Underwriter as
set forth in
this Section
9, the Closing
Date shall be
postponed for
such period,
not exceeding
five Business
Days, as the
Representatives
shall
determine in
order that the
required
changes in the
Registration
Statement and
the Prospectus
or in any
other
documents or
arrangements
may be
effected.
Nothing
contained in
this Agreement
shall relieve
any defaulting
Underwriter of
its liability
to the Company
and any
nondefaulting
Underwriter
for damages
occasioned by
its default
hereunder.
10. Termination.
This
Agreement
shall be
subject to
termination in
the absolute
discretion of
the
Representatives,
by notice
given to the
Company prior
to delivery of
and payment
for the
Securities, if
at any time
prior to such
delivery and
payment (i)
trading in the
Company’s
Units, Common
Stock or
Warrants shall
have been
suspended by
the Commission
or the New
York Stock
Exchange (or
successor
trading
market) or
trading in
securities
generally on
the New York
Stock Exchange
(or successor
trading
market) shall
have been
suspended or
limited or
minimum prices
shall have
been
established on
such exchange
or trading
market, (ii)
the Company
shall not have
obtained
authorization
for quotation
of the Units,
Common Stock
or Warrants on
the New York
Stock Exchange
(or successor
trading
market), (iii)
a banking
moratorium
shall have
been declared
either by U.S.
federal or New
York State
authorities,
(iv) there
shall have
occurred a
material
disruption in
commercial
banking or
securities
settlement or
clearance
services; or
there shall
have occurred
any outbreak
or escalation
of
hostilities,
declaration by
the United
States of a
national
emergency or
war, or other
national or
international
calamity or
crisis the
effect of
which on
financial
markets is
such as to
make it, in
the sole
judgment of
the
Representatives,
impractical or
inadvisable to
proceed with
the offering
or delivery of
the Securities
as
contemplated
by the
Statutory
Prospectus or
the Prospectus
(exclusive
of any
supplement
thereto).
11. Representations
and
Indemnities to
Survive.
The
respective
agreements,
representations,
warranties,
indemnities
and other
statements of
the Company or
its officers
and of the
Underwriters
set forth in
or made
pursuant to
this Agreement
will remain in
full force and
effect,
regardless of
any
investigation
made by or on
behalf of any
Underwriter or
the Company or
any of the
officers,
directors,
employees,
agents or
controlling
persons
referred to in
Section 8
hereof, and
will survive
delivery of
and payment
for the
Securities.
The provisions
of Sections 7
and 8 hereof
shall survive
the
termination or
cancellation
of this
Agreement.
12. Notices.
All
communications
hereunder will
be in writing
and effective
only on
receipt, and,
if sent to the
Representatives,
will be
mailed,
delivered or
telefaxed to
Citigroup
Global Markets
Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇
Attention:
General
Counsel,
facsimile:
(646) 291-146,
BofA
Securities,
Inc., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇,
facsimile:
(▇▇▇) ▇▇▇
▇▇▇▇,
Attention:
Syndicate
Department,
with a copy
to: facsimile:
(▇▇▇) ▇▇▇
▇▇▇▇,
Attention: ECM
Legal and
Barclays
Capital Inc.,
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇,
Attention:
Syndicate
Registration,
facsimile:
▇▇▇-▇▇▇-▇▇▇▇;
or, if sent to
the Company,
will be
mailed,
delivered or
telefaxed to
Climate Change
Crisis Real
Impact I
Acquisition
Corporation,
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇,
Attention:
▇▇▇▇▇ ▇.
▇▇▇▇▇, with a
copy to the
Company’s
counsel at
Ropes &
▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇
▇▇▇▇▇▇▇.
13. Successors.
This
Agreement will
inure to the
benefit of and
be binding
upon the
parties hereto
and their
respective
successors and
the officers,
directors,
employees,
agents and
controlling
persons
referred to in
Section 8
hereof, and no
other person
will have any
right or
obligation
hereunder.
14. No
Fiduciary
Duty.
The
Company hereby
acknowledges
that (a) the
purchase and
sale of the
Securities
pursuant to
this Agreement
is an
arm’s-length
commercial
transaction
between the
Company, on
the one hand,
and the
Underwriters
and any
affiliate
through which
any of them
may be acting,
on the other,
(b) the
Underwriters
are acting as
principal and
not as an
agent or
fiduciary of
the Company
and (c) the
Company’s
engagement of
the
Underwriters
in connection
with the
Offering and
the process
leading up to
the Offering
is as
independent
contractors
and not in any
other
capacity.
Furthermore,
the Company
agrees that it
is solely
responsible
for making its
own judgments
in connection
with the
Offering
(irrespective
of whether any
of the
Underwriters
has advised or
is currently
advising the
Company on
related or
other
matters). The
Company agrees
that it will
not claim that
the
Underwriters
have rendered
advisory
services of
any nature or
respect, or
owe an agency,
fiduciary or
similar duty
to the
Company, in
connection
with such
transaction or
the process
leading
thereto.
15. Recognition
of the U.S.
Special
Resolution
Regimes. (a)
In the event
that any
Underwriter
that is a
Covered Entity
becomes
subject to a
proceeding
under a U.S.
Special
Resolution
Regime, the
transfer from
such
Underwriter of
this
Agreement, and
any interest
and obligation
in or under
this
Agreement,
will be
effective to
the same
extent as the
transfer would
be effective
under the U.S.
Special
Resolution
Regime if this
Agreement, and
any such
interest and
obligation,
were governed
by the laws of
the United
States or a
state of the
United States.
(b)
In the
event that any
Underwriter
that is a
Covered Entity
or a BHC Act
Affiliate of
such
Underwriter
becomes
subject to a
proceeding
under a U.S.
Special
Resolution
Regime,
Default Rights
under this
Agreement that
may be
exercised
against such
Underwriter
are permitted
to be
exercised to
no greater
extent than
such Default
Rights could
be exercised
under the U.S.
Special
Resolution
Regime if this
Agreement were
governed by
the laws of
the United
States or a
state of the
United States.
For
purposes of
this Section
15: (A) a “BHC
Act Affiliate”
has the
meaning
assigned to
the term
“affiliate”
in, and shall
be interpreted
in accordance
with, 12
U.S.C. §
1841(k); (B)
“Covered
Entity” means
any of the
following: (i)
a “covered
entity” as
that term is
defined in,
and
interpreted in
accordance
with, 12
C.F.R. §
252.82(b);
(ii) a
“covered bank”
as that term
is defined in,
and
interpreted in
accordance
with, 12
C.F.R. §
47.3(b); or
(iii) a
“covered FSI”
as that term
is defined in,
and
interpreted in
accordance
with, 12
C.F.R. §
382.2(b); (C)
“Default
Right” has the
meaning
assigned to
that term in,
and shall be
interpreted in
accordance
with, 12
C.F.R. §§
252.81, 47.2
or 382.1, as
applicable;
and (D) “U.S.
Special
Resolution
Regime” means
each of (i)
the Federal
Deposit
Insurance Act
and the
regulations
promulgated
thereunder and
(ii) Title II
of the ▇▇▇▇-
▇▇▇▇▇ ▇▇▇▇
Street Reform
and Consumer
Protection Act
and the
regulations
promulgated
thereunder.
16. Integration.
This
Agreement
supersedes all
prior
agreements and
understandings
(whether
written or
oral) between
the Company
and the
Underwriters,
or any of
them, with
respect to the
subject matter
hereof.
17. Applicable
Law.
This
Agreement will
be governed by
and construed
in accordance
with the laws
of the State
of New York
applicable to
contracts made
and to be
performed
within the
State of New
York.
18. Waiver
of Jury Trial.
The
Company hereby
irrevocably
waives, to the
fullest extent
permitted by
applicable
law, any and
all right to
trial by jury
in any legal
proceeding
arising out of
or relating to
this Agreement
or the
transactions
contemplated
hereby.
19. Counterparts.
This
Agreement may
be signed in
one or more
counterparts,
each of which
shall
constitute an
original and
all of which
together shall
constitute one
and the same
agreement.
Counterparts
may be
delivered via
facsimile,
electronic
mail
(including any
electronic
signature
covered by the
U.S. federal
ESIGN Act of
2000, Uniform
Electronic
Transactions
Act, the
Electronic
Signatures and
Records Act or
other
applicable
law, e.g.,
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇)
or other
transmission
method and any
counterpart so
delivered
shall be
deemed to have
been duly and
validly
delivered and
be valid and
effective for
all purposes.
20. Headings.
The
section
headings used
herein are for
convenience
only and shall
not affect the
construction
hereof.
21. Definitions.
The
terms that
follow, when
used in this
Agreement,
shall have the
meanings
indicated.
“Act”
shall mean the
Securities Act
of 1933, as
amended, and
the rules and
regulations of
the Commission
promulgated
thereunder.
“Business
Day”
shall mean any
day other than
a Saturday, a
Sunday or a
legal holiday
or a day on
which banking
institutions
or trust
companies are
authorized or
obligated by
law to close
in New York
City.
“Commission”
shall mean the
Securities and
Exchange
Commission.
“Effective
Date”
shall mean
each date and
time that the
Registration
Statement, any
post-effective
amendment or
amendments
thereto and
any Rule
462(b)
Registration
Statement
became or
becomes
effective.
“Exchange
Act”
shall mean the
Securities
Exchange Act
of 1934, as
amended, and
the rules and
regulations of
the Commission
promulgated
thereunder.
“Execution
Time”
shall mean the
date and time
that this
Agreement is
executed and
delivered by
the parties
hereto.
“Free
Writing
Prospectus”
shall mean a
free writing
prospectus, as
defined in
Rule 405.
“Liquidation”
shall mean the
distribution
of the funds
in the Trust
Account to the
Public
Stockholders
in connection
with the
redemption of
Common Stock
held by the
Public
Stockholders
pursuant to
the terms of
the Amended
and Restated
Certificate of
Incorporation
if the Company
fails to
consummate a
Business
Combination.
“Preliminary
Prospectus”
shall mean any
preliminary
prospectus
referred to in
paragraph 1(a)
above and any
preliminary
prospectus
included in
the
Registration
Statement at
the Effective
Date that
omits Rule
430A
Information.
“Prospectus”
shall mean the
prospectus
relating to
the Securities
that is first
filed pursuant
to Rule 424(b)
after the
Execution
Time.
“Registration
Statement”
shall mean the
registration
statements
referred to in
paragraph 1(a)
above,
including
exhibits and
financial
statements and
any prospectus
and prospectus
supplement
relating to
the Securities
that is filed
with the
Commission
pursuant to
Rule 424(b)
and deemed
part of such
registration
statement
pursuant to
Rule 430A, as
amended at the
Execution Time
and, in the
event any
post-effective
amendment
thereto or any
Rule 462(b)
Registration
Statement
becomes
effective
prior to the
Closing Date,
shall also
mean such
registration
statement as
so amended or
such Rule
462(b)
Registration
Statement, as
the case may
be.
“Rule
158,” “Rule
172,” “Rule
405,” “Rule
419,” “Rule
424(b)
,” “Rule
430A,”
“Rule
433,” “Rule
433(h)”
and “Rule
462(b)”
refer to such
rules under
the Act.
“Rule
430A
Information”
shall mean
information
with respect
to the
Securities and
the offering
thereof
permitted to
be omitted
from the
Registration
Statement when
it becomes
effective
pursuant to
Rule 430A.
“Rule 462(b)
Registration
Statement”
shall mean a
registration
statement and
any amendments
thereto filed
pursuant to
Rule 462(b)
relating to
the offering
covered by the
registration
statement
referred to in
Section 1(a)
hereof.
“Statutory
Prospectus”
shall mean (i)
the
Preliminary
Prospectus
dated August
August 14,
2020, relating
to the
Securities and
(ii) the Time
of Delivery
Information,
if any, set
forth on
Schedule II
hereto.
[Remainder
of page
intentionally
left blank]
If the
foregoing is
in accordance
with your
understanding
of our
agreement,
please sign
and return to
us the
enclosed
duplicate
hereof,
whereupon it
will become a
binding
agreement
among the
Company and
the several
Underwriters
in accordance
with its
terms.
|
Very
truly yours,
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
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Name:
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
|
Title:
|
Chief Financial Officer | ||
The
foregoing
Underwriting
Agreement is
hereby
confirmed and
accepted as of
the date first
above written.
|
Citigroup
Global Markets
Inc.
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By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
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||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇ | ||
|
Title:
|
Managing
Director
|
||
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BofA
Securities,
Inc.
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|||
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇
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||
|
Name:
|
▇▇▇▇▇▇▇ ▇▇▇▇ | ||
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Title:
|
Managing
Director
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||
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Barclays
Capital Inc.
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By:
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/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇ |
||
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Name:
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▇▇▇▇▇▇▇▇ ▇▇▇▇ | ||
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Title:
|
Authorized
Signatory
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