EXHIBIT 1.1
12,500,000 Units
NORTH AMERICAN INSURANCE LEADERS, INC.
FORM OF UNDERWRITING AGREEMENT
March [o], 2006
CRT Capital Group LLC
262 Harbor Drive
Stamford, CT 06902
Ladies and Gentlemen:
The undersigned, North
American Insurance
Leaders, Inc., a Delaware
corporation
("Company"), hereby
confirms its agreement
with CRT Capital Group
LLC ("Underwriter") as follows:
1. PURCHASE AND SALE OF SECURITIES.
1.1 Firm Securities.
1.1.1 Purchase of Firm Units. On the basis of the
representations and warranties herein contained, but subject to the
terms and
conditions herein set forth, the Company agrees to issue and sell
to the
Underwriter, and the Underwriter, upon the basis of the
representations and
warranties herein contained, but subject to the conditions
hereinafter stated,
agrees to purchase from the Company, an aggregate of 12,500,000
units ("Firm
Units") of the Company, at a purchase price (net of all discounts
and
commissions other than the Deferred Discount (as defined in Section
1.1.3
hereof)) of (A) $7.64 per Firm Unit (the "Initial Purchase Price")
less (B) the
Deferred Discount, if any. As adjusted for the payment, if any, to
the
Underwriter of the Deferred Discount pursuant to Section 1.1.3
hereof, the
purchase price will be no less than $7.44 per Firm Unit. The Firm
Units are to
be offered initially to the public ("Offering") at the offering
price of $8.00
per Firm Unit. Each Firm Unit consists of one share of the
Company's common
stock, par value $.0001 per share ("Common Stock"), and one warrant
("Warrant").
The shares of Common Stock and the Warrants included in the Firm
Units will not
be separately transferable until five days after the earlier to
occur of (i) the
expiration or termination of the Over-Allotment Option (as defined
in Section
1.2.1 hereof) or (ii) the exercise in full by the Underwriter of
the
Over-Allotment Option, but in no event will separate trading begin
before an
audited balance sheet has been prepared reflecting receipt by the
Company of the
proceeds of the Offering and filed with the Securities and Exchange
Commission
(the "Commission") under cover of a Current Report on Form 8-K.
Each Warrant
entitles its holder to exercise it to purchase one share of Common
Stock for
$6.00 during the period commencing on the later of the consummation
by the
Company of its "Business Combination" or one year from the
effective date
("Effective Date") of the Registration Statement (as defined in
Section 2.1.1
hereof) and terminating on the four-year anniversary of the
Effective Date, or
earlier upon redemption. "Business Combination" shall mean the
initial merger,
capital stock exchange, asset acquisition, stock purchase and/or
other similar
transaction with one or more insurance or insurance services
businesses in North
America, collectively referred to as "insurance-related businesses"
(as
described more fully in the Registration Statement).
1.1.2 Payment and Delivery. Delivery and payment for the Firm
Units shall be made at 1:00 P.M., New York time, on the third
business day
following the date of this Agreement (or the fourth business day
following the
date of this Agreement, if this Agreement is executed after 4:30
p.m. New York
time) or at such earlier time as shall be agreed upon by the
Underwriter and the
Company at the offices of the Underwriter or at such other place as
shall be
agreed upon by the Underwriter and the Company. The hour and date
of delivery
and payment for the Firm Units is called the "Closing Date."
Payment for the
Firm Units shall be made by the Underwriter on the Closing Date by
wire transfer
in immediately available Federal funds of $95,500,000, representing
the
aggregate purchase price for the Firm Units based on the Initial
Purchase Price,
payable as follows: $93,925,000, shall be paid by the Underwriter
to the Trust
Account established by the Company for the benefit of the holders
of IPO Shares
(as defined below in Section 6.7) as described in the Registration
Statement
("Trust
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Account") pursuant to the terms of the Trust Agreement (as defined
below
in Section 2.22) and $1,575,000, less the amount owed by the
Company to the
Underwriter for all expenses owed thereto incident to the
performance of the
obligations of the Company under this Agreement as set forth in
Sections 3.7
hereof, shall be paid to the order of the Company to a bank account
established
by the Company, against delivery to the Underwriter of certificates
(in form and
substance satisfactory to the Underwriter) representing the Firm
Units (or
through the facilities of The Depository Trust Company ("DTC")) for
the account
of the Underwriter. The Firm Units shall be registered in such name
or names and
in such authorized denominations as the Underwriter may request in
writing at
least two full business days prior to the Closing Date. The Company
will permit
the Underwriter to examine and package the Firm Units for delivery,
at least one
full business day prior to the Closing Date. The Company shall not
be obligated
to sell or deliver the Firm Units except upon tender of payment by
the
Underwriter for all the Firm Units.
1.1.3 Deferred Discount. Upon the consummation, if any, of
the Business Combination the Company will pay to the Underwriter a
deferred
discount (the "Deferred Discount") in an amount equal to (A) 2.5%
of the gross
proceeds (before giving effect to any discounts or commissions)
from the sale of
the Units (as defined in section 1.2.1 hereof) less (B) $0.20 per
share of
Common Stock converted to cash in connection with the Business
Combination Vote
(as defined in Section 6.6 hereof), subject to Section 6.7 hereof.
Payment of
the Deferred Discount will be made out of the proceeds of this
Offering held in
the Trust Account at the consummation of the Business Combination.
In no event
shall the Underwriter have any 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 a Business Combination
within the
required time period set forth in the Prospectus, the Deferred
Discount will not
be paid to the Underwriter. Any proceeds held in the Trust Account
that would
have been paid to the Underwriter in respect of the Deferred
Discount will,
instead, be included in the liquidation distribution of the
proceeds held in the
Trust Account made to the holders of the IPO Shares (as defined in
Section 6.6
hereof).
1.2 Over-Allotment Option.
1.2.1 Option Units. For the purposes of covering any
over-allotments in connection with the distribution and sale of the
Firm Units,
the Underwriter is hereby granted an option to purchase up to an
additional
1,875,000 units from the Company ("Over-Allotment Option"). Such
additional
1,875,000 units are hereinafter referred to as "Option Units." Each
Option Unit
shall be identical to a Firm Unit. The Firm Units and the Option
Units are
hereinafter collectively referred to as the "Units," and the Units,
the shares
of Common Stock and the Warrants included in the Units and the
shares of Common
Stock issuable upon exercise of the Warrants are hereinafter
referred to
collectively as the "Public Securities." The purchase price to be
paid for the
Option Units will be the same price per Option Unit as the price
per Firm Unit
set forth in Section 1.1.1 hereof.
1.2.2 Exercise of Option. Subject to Section 1.2.4 hereof,
the Over-Allotment Option granted pursuant to Section 1.2.1 hereof
may be
exercised by the Underwriter as to all or any part of the Option
Units within 30
days after the Effective Date, unless sooner terminated. The
Underwriter will
not be under any obligation to purchase any Option Units prior to
the exercise
of the Over-Allotment Option. The Over-Allotment Option granted
hereby may be
exercised in whole at any time, or in part from time to time
(consistent with
Section 1.2.4 hereof), by the giving of oral notice to the Company
by the
Underwriter, which must be confirmed in writing by overnight mail
or facsimile
transmission setting forth the number of Option Units to be
purchased and the
date and time for delivery of and payment for the Option Units
(each such date
and time, including, as the case may be, the Closing Date, is
referred to herein
as an "Option Closing Date"), which will not be later than five
full business
days after the date of the notice or such other time as shall be
agreed upon by
the Company and the Underwriter, at the offices of the Underwriter
or at such
other place as shall be agreed upon by the Company and the
Underwriter. Upon any
exercise of the Over-Allotment Option, the Company will become
obligated to
convey to the Underwriter, and, subject to the terms and conditions
set forth
herein, the Underwriter will become obligated to purchase, the
number of Option
Units specified in such notice.
1.2.3 Payment and Delivery. Payment for the Option Units
shall be made on each Option Closing Date by wire transfer in
immediately
available Federal funds representing the purchase price for the
Option Units,
based on the Initial Purchase Price, to the Trust Account, against
delivery to
the Underwriter of certificates (in form and substance satisfactory
to the
Underwriter) representing the Option Units (or through the
facilities of DTC)
for the account of the Underwriter. The certificates representing
the Option
Units to be delivered will be in such denominations and registered
in such names
as the Underwriter requests not less than two full business days
prior to
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the Option Closing Date, as the case may be, and will be made
available to the
Underwriter for inspection, checking and packaging at the aforesaid
office of
the Company's transfer agent or correspondent not less than one
full business
day prior to such Closing Date.
1.2.4 Option Closing Dates. Notwithstanding anything to the
contrary contained herein, there shall be no more than [o] Option
Closing Dates
after the Closing Date. The Over-Allotment Option shall
automatically expire,
and the Company shall have no further obligation to convey to the
Underwriter
any Option Units, after payment and delivery for any Option Units
on the [o]
Option Closing Date following the Closing Date.
1.2.5 Termination of Option. If the Underwriter provides
notice in writing to the Company that the Underwriter is
terminating the
Over-Allotment Option, then the Over-Allotment Option shall
immediately
terminate and the Company shall have no further obligation to
convey to the
Underwriter any Option Units for which the Underwriter has not yet
given notice
of exercise.
1.3 Underwriter's Purchase Option.
1.3.1 Purchase Option. The Company hereby agrees to issue and
sell to the Underwriter (and/or its designees) on the Effective
Date an option
("Underwriter's Purchase Option") for the purchase of up to an
aggregate of
750,000 units ("Underwriter's Units") for an aggregate purchase
price of $100.
Each of the Underwriter's Units is identical to the Firm Units
except that the
Warrant included in the Underwriter's Units ("Underwriter's
Warrants") shall
have an exercise price of $7.50 (125% of the exercise price of the
Warrants
included in the Units sold to the public). The Underwriter's
Purchase Option
shall be exercisable, in whole or in part, commencing on the later
of (i) one
year from the Effective Date and (ii) the consummation of a
Business Combination
and expiring on the four-year anniversary of the Effective Date at
an initial
exercise price per Underwriter's Unit of $8.80, which is equal to
one hundred
and ten percent (110%) of the initial public offering price of a
Unit. The
Underwriter's Purchase Option, the Underwriter's Units, the
Underwriter's
Warrants, the Common Stock included in the Underwriter's Units and
the shares of
Common Stock issuable upon exercise of the Underwriter's Warrants
are
hereinafter referred to collectively as the "Underwriter's
Securities." The
Public Securities, Underwriter's Securities and the D&O Rights
and D&O Warrants
(each as defined below in Section 2.11.8) are hereinafter referred
to
collectively as the "Securities."
1.3.2 Payment and Delivery. Delivery and payment for the
Underwriter's Purchase Option shall be made on the Closing Date.
The Company
shall deliver to the Underwriter, upon payment therefor,
certificates for the
Underwriter's Purchase Option in the name or names and in such
authorized
denominations as the Underwriter may request.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and
warrants to the Underwriter as follows:
2.1 Compliance with Securities Act of 1933.
2.1.1 Pursuant to the Securities Act. The Company has filed
with the Commission on Form S-1 (File No. 333-127871) a
registration statement,
including a prospectus, relating to the Offering, which
registration statement
has been prepared in conformity with the requirements of the
Securities Act of
1933, as amended (the "Securities Act"), and the rules and
regulations
("Regulations") of the Commission under the Securities Act. The
registration
statement as amended at the time it becomes effective, including
the information
(if any) deemed to be part of the registration statement at the
time of
effectiveness pursuant to Rule 430A under the Securities Act, is
hereinafter
referred to as the "Registration Statement"; the prospectus in the
form first
filed with the Commission pursuant to and within the time limits
described in
Rule 424(b) is hereinafter referred to as the "Prospectus." If the
Company has
filed an abbreviated registration statement to register additional
Firm Units
pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration
Statement"), then any reference herein to the term "Registration
Statement"
shall be deemed to include such Rule 462 Registration Statement.
For purposes of
this Agreement, "Time of Sale" means [o] p.m., New York City time,
on the date
of this Agreement. Prior to the Time of Sale, the Company prepared
a preliminary
prospectus, dated February 28, 2006, for distribution by the
Underwriter (the
"Preliminary Prospectus"). If, subsequent to the date of this
Agreement, the
Company or the Underwriter have determined that the Preliminary
Prospectus
included an untrue statement of a material fact or omitted a
statement of
material fact necessary to make the statements therein, in the
light of the
circumstances under which they were made, not misleading and the
Underwriter has
agreed to provide an opportunity to purchasers of the Firm Units to
terminate
their old purchase contracts and enter into new purchase contracts,
then the
Preliminary Prospectus will be deemed to include any additional
information
available to purchasers at the time of entry into the first such
new purchase
contract.
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2.1.2 Pursuant to the Exchange Act. The Company has filed
with the Commission a Form 8-A (File Number 000-[_____]) providing
for the
registration under the Securities Exchange Act of 1934, as amended
("Exchange
Act"), of the Units, the Common Stock and the Warrants. The Units,
the Warrants
and the Common Stock have been duly listed, and admitted and
authorized for
trading, subject only to official notice of issuance, on the
American Stock
Exchange, and the Company knows of no reason or set of facts which
is likely to
adversely affect such approval.
2.2 No Stop Orders, Etc. Neither the Commission nor, to the
Company's
knowledge, any state regulatory authority has issued any order or
threatened to
issue any order preventing or suspending the effectiveness of the
Registration
Statement or the use of the Preliminary Prospectus or the
Prospectus, or has
instituted or, to the Company's knowledge, threatened to institute
any
proceedings with respect to such an order.
2.3 Disclosures in Registration Statement.
2.3.1 10b-5 Representation. The Registration Statement has
been declared effective by the Commission on the date hereof. At
the time the
Registration Statement became effective and at the Closing Date and
the Option
Closing Date, if any, the Registration Statement contains or will
contain, as
applicable, and the Prospectus when first filed with the Commission
and at the
Closing Date and the Option Closing Date, if any, will contain, all
material
statements that are required to be stated therein in accordance
with the
Securities Act and the Regulations, and in all material respects
conform or will
conform, as applicable, to the requirements of the Securities Act
and the
Regulations; neither the Registration Statement nor the Prospectus,
nor any
amendment or supplement thereto, on such dates, contains or will
contain any
untrue statement of a material fact or omits or will omit to state
any material
fact required to be stated therein or necessary to make the
statements therein,
in light of the circumstances under which they were made, not
misleading. The
Preliminary Prospectus, when first filed with the Commission, at
the Time of
Sale, and at the Closing Date and the Option Closing Date, if any,
complied or
will comply, as applicable, in all material respects with the
applicable
provisions of the Securities Act and the Regulations and did not
and will not
contain an 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, in light of the circumstances under which they were made,
not
misleading. No statement of material fact included in the
Prospectus has been
omitted from the Preliminary Prospectus or the Registration
Statement and no
statement of material fact included in the Preliminary Prospectus
or
Registration Statement that is required to be included in the
Prospectus has
been omitted therefrom. Nothing has come to the attention of the
Company that
has caused the Company to believe that the statistical and
market-related data
included in the Preliminary Prospectus, the Registration Statement
and the
Prospectus is not based on or derived from sources that are
reliable and
accurate in all material respects. The representations and
warranties in this
subsection shall not apply to statements in or omissions from the
Preliminary
Prospectus, the Registration Statement or the Prospectus made in
reliance upon
and in conformity with written information furnished to the Company
by the
Underwriter with respect to itself expressly for use in the
Preliminary
Prospectus, the Registration Statement and the Prospectus.
2.3.2 Disclosure of Agreements. The agreements and documents
described in the Preliminary Prospectus, the Registration Statement
and the
Prospectus conform in all material respects to the descriptions
thereof
contained therein and there are no agreements or other documents
required to be
described in the Preliminary Prospectus, the Registration Statement
and the
Prospectus or to be filed with the Commission as exhibits to the
Registration
Statement, that have not been so described or filed.
2.3.3 Prior Securities Transactions. No securities of the
Company have been sold by the Company or by or on behalf of, or for
the benefit
of, any person or persons controlling, controlled by, or under
common control
with the Company since the formation of the Company, except as
disclosed in the
Preliminary Prospectus, the Registration Statement and the
Prospectus.
2.4 Changes After Dates in Registration Statement.
2.4.1 No Material Adverse Change. Since the respective dates
as of which information is given in the Preliminary Prospectus, the
Registration
Statement and the Prospectus, except as otherwise specifically
stated therein,
(i) there has been no material adverse effect on the condition
(financial or
otherwise), or business prospects of the Company (a "Material
Adverse Effect"),
(ii) there have been no material transactions entered into
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by the Company, other than as contemplated pursuant to this
Agreement, and (iii)
no member of the Company's management has resigned from any
position with the
Company.
2.4.2 Recent Securities Transactions, Etc. Subsequent to the
respective dates as of which information is given in the
Preliminary Prospectus,
the Registration Statement and the Prospectus, and except as may
otherwise be
indicated or contemplated herein or therein, the Company has not
(i) issued any
securities or incurred any liability or obligation, direct or
contingent, for
borrowed money; or (ii) declared or paid any dividend or made any
other
distribution on or in respect to its equity securities.
2.5 Independent Accountants. BDO Seidman, LLP ("BDO Seidman"),
whose
report is filed with the Commission as part of the Preliminary
Prospectus, the
Registration Statement and the Prospectus, are independent
accountants as
required by the Securities Act and the Regulations. BDO Seidman has
not, during
the periods covered by the financial statements included in the
Prospectus,
provided to the Company any non-audit services, as such term is
used in Section
10A(g) of the Exchange Act.
2.6 Sarbanes-Oxley. Solely to the extent that the Sarbanes-Oxley
Act of
2002, as amended, and the rules and regulations promulgated by the
Commission
and the American Stock Exchange thereunder (the "Sarbanes-Oxley
Act") has been
applicable to the Company, there is and has been no failure on the
part of the
Company to comply in all material respects with any provision of
the
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 and is
actively taking
steps to ensure that it will be in compliance with other provisions
of the
Sarbanes-Oxley Act not currently in effect or which will become
applicable to
the Company.
2.7 Financial Statements. The financial statements, including the
notes
thereto and supporting schedules included in the Preliminary
Prospectus, the
Registration Statement and the Prospectus, fairly present the
financial
position, the results of operations and the cash flows of the
Company at the
dates and for the periods to which they apply; and such financial
statements
have been prepared in conformity with generally accepted accounting
principles
in the United States ("GAAP"), consistently applied throughout the
periods
involved. The Preliminary Prospectus, the Registration Statement
and the
Prospectus disclose all material off-balance sheet transactions,
arrangements,
obligations (including contingent obligations), and other
relationships of the
Company with unconsolidated entities or other persons that may have
a material
current or future effect on the Company's financial condition,
changes in
financial condition, results of operations, liquidity, capital
expenditures,
capital resources, or significant components of revenues or
expenses.
2.8 Authorized Capital; Options; Etc. The Company had at the date
or
dates indicated in the Preliminary Prospectus, the Registration
Statement and
the Prospectus duly authorized, issued and outstanding capital
stock as set
forth under the captions "Capitalization" and "Description of
Securities" in the
Preliminary Prospectus, the Registration Statement and the
Prospectus. Based on
the assumptions stated in the Preliminary Prospectus, the
Registration Statement
and the Prospectus, the Company will have on the Closing Date the
adjusted stock
capitalization set forth therein under the caption "Capitalization"
and
"Description of Securities". Except as set forth in, or
contemplated by, the
Preliminary Prospectus, the Registration Statement and the
Prospectus, on the
Effective Date and on the Closing Date, there will be no options,
warrants, or
other rights to purchase or otherwise acquire any authorized but
unissued shares
of Common Stock or any security convertible into shares of Common
Stock, or any
contracts or commitments to issue or sell shares of Common Stock or
any such
options, warrants, rights or convertible securities.
2.9 Valid Issuance of Securities; Etc.
2.9.1 Outstanding Securities. All issued and outstanding
securities of the Company as of the effective date have been duly
authorized and
validly issued and are fully paid and non-assessable; the holders
thereof have
no rights of rescission with respect thereto, and are not subject
to personal
liability by reason of being such holders; and none of such
securities were
issued in violation of the preemptive rights of any holders of any
security of
the Company or similar contractual rights granted by the Company.
The authorized
Common Stock conforms in all material respects to all statements
relating
thereto contained in the Preliminary Prospectus, the Registration
Statement and
the Prospectus. The offers and sales of the outstanding Common
Stock were at all
relevant times either registered under the Securities Act, the
applicable state
securities and Blue Sky laws or, based
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in part on the representations and warranties of the purchasers of
such shares
of Common Stock, exempt from such registration requirements.
2.9.2 Securities Sold Pursuant to this Agreement.
(i) The Common Stock included in the Units has been
duly authorized and, when executed by the Company and
countersigned, and issued
and delivered against payment therefore by the Underwriter pursuant
to this
Agreement, will be validly issued, fully paid and
non-assessable;
(ii) The Common Stock included in the Underwriter's
Units has been duly authorized and, when executed by the Company
and
countersigned, and issued and delivered against payment therefore
pursuant to
the terms of the Underwriter's Purchase Option, will be validly
issued, fully
paid and non-assessable;
(iii) The shares of Common Stock issuable upon
exercise of the Warrants and the Underwriter's Warrants have been
duly
authorized and, when executed by the Company and countersigned and
issued and
delivered against payment therefore pursuant to the Warrants and
the Warrant
Agreement or the Underwriter's Warrant and the Underwriter's
Warrant Agreement,
as the case may be, will be validly issued, fully paid and
non-assessable. The
holders of such Common Stock are not and will not be subject to
personal
liability by reason of being such holders; such Common Stock is 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 Common Stock (other than such
execution,
countersignature and delivery at the time of issuance) has been
duly and validly
taken;
(iv) The Warrants, when executed by the Company and
countersigned, and issued and delivered against payment therefor by
the
Underwriters in accordance with the terms of the Warrant Agreement
will
constitute valid and binding obligations of the Company,
enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws
affecting enforcement of creditors' rights generally and except as
enforcement
thereof is subject to general principles of equity (regardless of
whether
enforcement is considered in a proceeding in equity or at law;
(v) The Underwriter's Purchase Option, when
executed by the Company and countersigned, and issued and delivered
against
payment therefore in accordance with its terms, will constitute a
valid and
binding obligation of the Company, enforceable against the Company
in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of
creditors' rights generally and except as enforcement thereof is
subject to
general principles of equity (regardless of whether enforcement is
considered in
a proceeding in equity or at law); and
(vi) The Underwriter's Warrants, when executed by
the Company and countersigned, and issued and delivered against
payment therefor
in accordance with the terms of the Underwriter's Purchase Option,
will
constitute valid and binding obligations of the Company,
enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws
affecting enforcement of creditors' rights generally and except as
enforcement
thereof is subject to general principles of equity (regardless of
whether
enforcement is considered in a proceeding in equity or at law. The
form of
certificate representing the Common Stock filed as an exhibit to
the
Registration Statement is in due and proper form, satisfying the
applicable
requirements of the Delaware General Corporation Law. Each of the
Securities
conforms in all material respects to all statements with respect
thereto
contained in the Registration Statement and the Prospectus.
2.9.3 Securities Sold Pursuant to the D&O Rights Agreement.
The shares of Common Stock issuable upon exercise of the D&O
Warrants have been
duly authorized and, when executed by the Company and
countersigned, and issued
and delivered against payment therefor pursuant to the terms of the
D&O Warrants
and Share Purchase & Sale, D&O Rights and Company Call
Right Agreement (the "D&O
Rights Agreement"), will be
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validly issued, fully paid and non-assessable. The holders of such
Common Stock
are not and will not be subject to personal liability by reason of
being such
holders; such Common Stock is 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
Common Stock (other than such execution, countersignature and
delivery at the
time of issuance) has been duly and validly taken. The D&O
Warrants, when issued
upon conversion of the D&O Rights, will constitute valid and
binding obligations
of the Company enforceable against the Company in accordance with
their terms,
except s the enforcement thereof may be limited by bankruptcy,
insolvency
(including, without limitation, all laws relating to fraudulent
transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law. The D&O Rights executed by the
Company and
countersigned, and issued and delivered against payment therefore
pursuant to
the Share Purchase & Sale, D&O Rights and Company Call
Right Agreement, will
constitute valid and binding of the Company enforceable against the
Company in
accordance with their terms, except as the enforcement thereof may
be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting
enforcement of creditors' rights generally and except as
enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is
considered in a proceeding in equity or at law).
2.10 Registration Rights of Third Parties. Except as set forth in
the
Preliminary Prospectus, the Registration Statement and the
Prospectus, no
holders of any securities of the Company or any rights exercisable
for or
convertible or exchangeable into securities of the Company have the
right to
require the Company to register any such securities of the Company
under the
Securities Act or to include any such securities in a registration
statement to
be filed by the Company.
2.11 Validity and
Binding Effect of Agreements.
2.11.1 Underwriting Agreement. This Agreement has been duly
and validly executed by the Company and constitutes the valid and
binding
agreement of the Company.
2.11.2 Warrant Agreement. The Warrant Agreement with Mellon
Investor Services LLC, with respect to the Warrants substantially
in the form
filed as Exhibit 4.4 to the Registration Statement (the "Warrant
Agreement"),
has been duly and validly executed by the Company and constitutes
the valid and
binding agreement of the Company, enforceable against the Company
in accordance
with its terms, subject to (i) the effect of any applicable
bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors'
rights generally (including without limitation all laws relating to
fraudulent
transfers), (ii) the effect of general principles of equity,
including without
limitation concepts of materiality, reasonableness, good faith and
fair dealing
(regardless of whether considered in a proceeding in equity or at
law), (iii)
the limitations on the enforceability of any rights to indemnity
and
contribution by federal and state securities laws and principles of
public
policy and (iv) possible judicial action giving effect to
governmental actions
or foreign laws affecting creditors' rights.
2.11.3 Transfer Agent Services Agreement. The Transfer Agent
Services Agreement with Mellon Investor Services LLC, substantially
in the form
filed as Exhibit 10.13 to the Registration Statement (the "Transfer
Agent
Services Agreement"), has been duly and validly executed by the
Company and
constitutes the valid and binding agreement of the Company,
enforceable against
the Company in accordance with its terms, subject to (i) the effect
of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws
affecting creditors' rights generally (including without limitation
all laws
relating to fraudulent transfers), (ii) the effect of general
principles of
equity, including without limitation concepts of materiality,
reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in
equity or at law), (iii) the limitations on the enforceability of
any rights to
indemnity and contribution by federal and state securities laws and
principles
of public policy and (iv) possible judicial action giving effect to
governmental
actions or foreign laws affecting creditors' rights.
2.11.4 Trust Agreement. The Investment Management Trust
Agreement with JPMorgan Chase Bank, NA as trustee, with respect to
certain
proceeds of the Offering and the D&O Rights Offering (as
defined below),
substantially in the form filed as Exhibit 10.10 to the
Registration Statement
(the "Trust Agreement"), has been duly and validly executed by the
Company and
constitutes the valid and binding agreement of the Company,
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enforceable in accordance with its terms, subject to (i) the effect
of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws
affecting creditors' rights generally (including without limitation
all laws
relating to fraudulent transfers), (ii) the effect of general
principles of
equity, including without limitation concepts of materiality,
reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in
equity or at law), (iii) the limitations on the enforceability of
any rights to
indemnity and contribution by federal and state securities laws and
principles
of public policy and (iv) possible judicial action giving effect to
governmental
actions or foreign laws affecting creditors' rights.
2.11.5 Escrow Agreement. The Stock Escrow Agreement with
JPMorgan Chase Bank, NA, substantially in the form filed as Exhibit
10.11 to the
Registration Statement (the "Escrow Agreement"), has been duly and
validly
executed by the Company and constitutes the valid and binding
agreement of the
Company, enforceable in accordance with its terms, subject to (i)
the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium
or similar
laws affecting creditors' rights generally (including without
limitation all
laws relating to fraudulent transfers), (ii) the effect of general
principles of
equity, including without limitation concepts of materiality,
reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in
equity or at law), (iii) the limitations on the enforceability of
any rights to
indemnity and contribution by federal and state securities laws and
principles
of public policy and (iv) possible judicial action giving effect to
governmental
actions or foreign laws affecting creditors' rights.
2.11.6 Insider Letters. Each of those certain letter
agreements, substantially in the forms filed as Exhibits 10.6 or
10.7 to the
Registration Statement, pursuant to which each of the Initial
Stockholders
agrees to certain matters, including but not limited to, certain
matters
described as being agreed to by them under the "Proposed Business"
section of
the Prospectus ("Insider Letters"), have been duly and validly
executed by the
Company and constitute valid and binding agreements of the Company,
enforceable
in accordance with its terms, subject to (i) the effect of any
applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting
creditors' rights generally (including without limitation all laws
relating to
fraudulent transfers), (ii) the effect of general principles of
equity,
including without limitation concepts of materiality,
reasonableness, good faith
and fair dealing (regardless of whether considered in a proceeding
in equity or
at law), (iii) the limitations on the enforceability of any rights
to indemnity
and contribution by federal and state securities laws and
principles of public
policy and (iv) possible judicial action giving effect to
governmental actions
or foreign laws affecting creditors' rights.
2.11.7 Underwriter's Purchase Option. The Underwriter's
Purchase Option has been duly and validly executed by the Company
and
constitutes the valid and binding agreement of the Company,
enforceable in
accordance with its terms, subject to (i) the effect of any
applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting
creditors' rights generally (including without limitation all laws
relating to
fraudulent transfers), (ii) the effect of general principles of
equity,
including without limitation concepts of materiality,
reasonableness, good faith
and fair dealing (regardless of whether considered in a proceeding
in equity or
at law), (iii) the limitations on the enforceability of any rights
to indemnity
and contribution by federal and state securities laws and
principles of public
policy and (iv) possible judicial action giving effect to
governmental actions
or foreign laws affecting creditors' rights.
2.11.8 Share Purchase & Sale, D&O Rights and Company
Call
Right Agreement. The Share Purchase & Sale, D&O Rights and
Company Call Right
Agreement (the "Share Purchase & Sale, D&O Rights and
Company Call Right
Agreement"), substantially in the form filed as Exhibit 10.10 to
the
Registration Statement, pursuant to which (a) certain of the
Initial
Stockholders agreed to sell a portion of their shares to E. Miles
Prentice, III,
(b) each of the Company's Directors and Officers agrees to purchase
from the
Company a certain number of rights (the "D&O Rights")
convertible into Warrants
(the "D&O Warrants") in a registered offering concurrent with
the Offering (the
"D&O Rights Offering") and (c) whereby the Company is granted
the right to
purchase shares of Common Stock from the Initial Stockholders, has
been duly and
validly executed by the Company and constitutes the valid and
binding agreement
of the Company, enforceable in accordance with its terms, and
subject to (i) the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or
similar laws affecting creditors' rights generally (including
without limitation
all laws relating to fraudulent transfers), (ii) the effect of
general
principles of equity, including without limitation concepts of
materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in
a proceeding in equity or at law), (iii) the limitations on the
enforceability
of
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any rights to indemnity and contribution by federal and state
securities laws
and principles of public policy and (iv) possible judicial action
giving effect
to governmental actions or foreign laws affecting creditors'
rights.
2.11.9 Office Administration Agreement. The Office
Administration Agreement with Ampton Investments, Inc.,
substantially in the
form filed as Exhibit 10.12 to the Registration Statement, has been
duly and
validly executed by the Company and constitutes the valid and
binding agreement
of the Company, enforceable in accordance with its terms, subject
to (i) the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or
similar laws affecting creditors' rights generally (including
without limitation
all laws relating to fraudulent transfers), (ii) the effect of
general
principles of equity, including without limitation concepts of
materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in
a proceeding in equity or at law), (iii) the limitations on the
enforceability
of any rights to indemnity and contribution by federal and state
securities laws
and principles of public policy and (iv) possible judicial action
giving effect
to governmental actions or foreign laws affecting creditors'
rights.
2.12 No Conflicts, Etc. The execution, delivery, and performance by
the
Company of this Agreement, the Warrant Agreement, the Transfer
Agent Services
Agreement, the Trust Agreement, the Insider Letters, the Office
Administration
Agreement, the Underwriter's Purchase Option, the Share Purchase
& Sale, D&O
Rights and Company Call Right Agreement and the Escrow Agreement,
the
consummation by the Company of the transactions herein and therein
contemplated
and the compliance by the Company with the terms hereof and thereof
do not and
will not, with or without the giving of notice or the lapse of time
or both (i)
result in a breach of, or conflict with any of the terms and
provisions of, or
constitute a default under, or result in the creation,
modification, termination
or imposition of any lien, charge or encumbrance upon any property
or assets of
the Company pursuant to the terms of any agreement or instrument to
which the
Company is a party except pursuant to the Trust Agreement; (ii)
result in any
violation of the provisions of the Amended and Restated Certificate
of
Incorporation or the Bylaws of the Company; or (iii) violate any
existing
applicable law, rule, regulation, judgment, order or decree of any
governmental
agency or court, domestic or foreign, having jurisdiction over the
Company or
any of its properties or business, except where such breach,
conflict, or
violation would not have a Material Adverse Effect.
2.13 No Defaults; No Violations. No default that would have a
Material
Adverse Effect exists in the due performance and observance of any
term,
covenant or condition of any material license, contract, indenture,
mortgage,
deed of trust, note, loan or credit agreement, or any other
agreement or
instrument evidencing an obligation for borrowed money, or any
other material
agreement or instrument to which the Company is a party or by which
the Company
may be bound or to which any of the properties or assets of the
Company is
subject. The Company is not in violation of any term or provision
of its Amended
and Restated Certificate of Incorporation or Bylaws or in violation
of any
material franchise, license, permit, applicable law, rule,
regulation, judgment
or decree of any governmental agency or court, domestic or foreign,
having
jurisdiction over the Company or any of its properties or
businesses, except
where such violation would not have a Material Adverse Effect.
2.14 Corporate Power; Licenses; Ownership.
2.14.1 Conduct of Business. The Company has all requisite
corporate power and authority, and has all necessary
authorizations, approvals,
orders, licenses, certificates and permits of and from all
governmental
regulatory officials and bodies as of the date hereof to conduct
its business as
described in the Preliminary Prospectus, the Registration Statement
and the
Prospectus except where such violation would not have a Material
Adverse Effect.
2.14.2 Transactions Contemplated Herein. The Company has all
corporate power and authority to enter into this Agreement and to
carry out the
provisions and conditions hereof. All consents, authorizations,
approvals and
orders required in connection therewith have been obtained, except
where the
failure to obtain such consents, authorizations, approvals and
orders would not
have a Material Adverse Effect. No consent, authorization or order
of, and no
filing with, any court, government agency or other body is required
for the
valid issuance, sale and delivery, of the Securities and the
consummation of the
transactions and agreements contemplated by this Agreement, the
Warrant
Agreement, the Transfer Agent Services Agreement, the Underwriter's
Purchase
Option, the Share Purchase & Sale, D&O Rights and Company
Call Right Agreement,
the Trust Agreement, the Insider Letters, the Office Administration
Agreement
and the Escrow Agreement and as contemplated by the Preliminary
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Prospectus, the Registration Statement and the Prospectus, except
with respect
to applicable federal and state securities laws.
2.14.3 Ownership. Except as set forth in the Preliminary
Prospectus, the Registration Statement and the Prospectus, (a) the
Company owns
or has valid leasehold interests in all material properties and
assets required
for the operation of its business as now conducted or as presently
proposed to
be conducted, none of which are required to be disclosed in the
Preliminary
Prospectus, the Registration Statement and the Prospectus as being
owned by it
and (b) all real property leases to which the Company is a party
are valid,
subsisting and, to the knowledge of the Company, enforceable by the
Company,
except where the failure to have such ownership or possession, as
the case may
be, would not have a Material Adverse Effect. The Company owns or
possesses, or
can acquire on a t
