ThinkEquity
Partners
as Representative of the Several
Underwriters
600 Montgomery Street, 8th Floor
San Francisco, California 94111
The
undersigned, Acquicor Technology Inc., a Delaware corporation
(“Company”), hereby confirms in this Underwriting
Agreement (this “Agreement”) its agreement with
ThinkEquity Partners (being referred to herein variously as
“you,” “TEP” or the
“Representative”) and with the other underwriters named
on Schedule I hereto for which TEP is acting as Representative
(the Representative and the other Underwriters being collectively
called the “Underwriters” or, individually, an
“Underwriter”) as follows:
1. Purchase and
Sale of 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 Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agree to purchase from the Company
an aggregate of ___units (“Firm Units”) of the Company,
at a purchase price (net of discounts and commissions and subject
to Section 3.22 hereof) of $ per Firm Unit. The
Firm Units are to be offered initially to the public
(“Offering”) at the offering price of $ per
Firm Unit. Each Firm Unit consists of one share of the
Company’s common stock, par value $0.0001 per share
(“Common Stock”), and two warrants
(“Warrant(s)”). The shares of Common Stock and the
Warrants included in the Firm Units will not be separately
transferable until 20 days after the earlier to occur of
(i) the expiration of the Over-allotment Option (as defined in
Section 1.2.1 hereof) or (ii) the exercise in full or in part
by the Underwriters of the Over-allotment Option; provided ,
however , that in no event will the Underwriters permit
separate trading before an audited balance sheet has been prepared
reflecting receipt by the Company of the proceeds of the Offering
and the Company has filed with the Securities and Exchange
Commission (the “Commission”) a Current Report on Form
8-K which includes such audited balance sheet. Each Warrant
entitles its holder to exercise it to purchase one share of Common
Stock for $5.00 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
five-year anniversary of the Effective Date, or earlier upon
redemption. “Business Combination” shall mean the
acquisition by the Company, whether by merger, capital stock
exchange, stock purchase, asset acquisition or other similar
business combination, of one or more domestic and/or foreign
operating businesses in the technology, multimedia and networking
sectors (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 Representative and the
Company at the offices of the Representative or at such other place
as shall be agreed upon by the Representative and the Company. The
hour and date of delivery and
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payment for the
Firm Units is called the “Closing Date.” Payment for
the Firm Units shall be made on the Closing Date at the
Representative’s election by wire transfer in Federal (same
day) funds or by certified or bank cashier’s check(s) in New
York Clearing House funds, payable as follows: $___ of the proceeds
received by the Company for the Firm Units shall be deposited in
the trust account established by the Company as described in the
Registration Statement (“Trust Account”) pursuant to
the terms of the Trust Agreement (as defined below in
Section 2.22) and the remaining proceeds shall be paid to the
order of the Company upon delivery to the Representative of
certificates (in form and substance satisfactory to the
Representative) representing the Firm Units (or through the
facilities of the Depository Trust Company (“DTC”)) for
the account of the Representative. The Firm Units shall be
registered in such name or names and in such authorized
denominations as the Representative may request in writing at least
two full business days prior to the Closing Date. The Company will
permit the Representative to examine and package the Firm Units for
delivery, at least one full business day prior to the Closing Date.
The Company shall not be obligated to sell or deliver the Firm
Units except upon tender of payment by the Representative for all
the Firm Units.
1.2
Over-Allotment Option .
1.2.1
Option Units . For the purposes of covering any
over-allotments in connection with the distribution and sale of the
Firm Units, the Underwriters are hereby granted, severally and not
jointly, an option to purchase up to an additional aggregate
3,750,000 units from the Company (“Over-allotment
Option”). Such additional 3,750,000 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 “Securities.” The purchase price to
be paid for the Option Units will be the same price per Option Unit
as the price per Firm Unit set forth in Section 1.1.1
hereof.
1.2.2
Exercise of Option . The Over-allotment Option granted
pursuant to Section 1.2.1 hereof may be exercised by the
Underwriters as to all (at any time) or any part (from time to
time) of the Option Units within 45 days after the Effective
Date, subject to Section 1.2.3 hereof. The Underwriters will
not be under any obligation to purchase any Option Units prior to
the exercise of the Over-allotment Option. The Over-allotment
Option granted hereby may be exercised by the giving of oral notice
to the Company by the Representative, 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 (the “Option
Closing Date”), which will not be later than five full
business days after the date of the notice or such other time as
shall be agreed upon by the Company and the Representative, at the
offices of the Representative or at such other place as shall be
agreed upon by the Company and the Representative. Upon exercise of
the Over-allotment Option, the Company will become obligated to
convey to the Representative, and, subject to the terms and
conditions set forth herein, the Representative will become
obligated to purchase, the number of Option Units specified in such
notice.
1.2.3
Termination of Option . In the event that the Representative
gives notice in writing, by overnight mail, e-mail or facsimile
transmission, that the Underwriters will not exercise the
Over-allotment Option granted pursuant to Section 1.2.1
hereof, then the Over-allotment Option shall immediately terminate
and the Company and the Underwriters will have no further
obligation with respect to the Over-allotment Option or the Option
Units.
1.2.4
Payment and Delivery . Payment for the Option Units shall be
made on the Option Closing Date at the Representative’s
election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing
House funds, payable to the Trust Account at the offices of the
Representative or at such other place as shall be agreed upon by
the Underwriter and the Company upon delivery to the Representative
of certificates representing such securities (or through the
facilities of DTC). The certificates representing the Option Units
to be delivered will be in such denominations and registered in
such names as the Representative requests not less than two full
business days prior to the Closing Date or the Option Closing Date,
as the case may be, and will be made available to the
Representative for inspection, checking and packaging at the
aforesaid office of the Company’s transfer agent or
correspondent not less than one full business day prior to such
Closing Date.
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1.3 Private
Placement to the Initial Stockholders . The Company’s
stockholders immediately prior to the Offering (“Initial
Stockholders”) purchased from the Company pursuant to the
Placement Unit Purchase Agreement (as defined in Section 2.28
hereof) an aggregate of 333,334 units identical to the Units
(“Placement Units”) at a purchase price of $6.00 per
Placement Unit in a private placement that occurred immediately
prior to the entering into of this agreement (“Private
Placement”). The Placement Units, the shares of Common Stock
and Warrants included in the Placement Units (“Placement
Warrants”) and the shares of Common Stock issuable upon
exercise of the Placement Warrants are hereinafter referred to
collectively as the “Placement Securities.”
1.4
Representative’s Purchase Option .
1.4.1
Purchase Option . The Company hereby agrees to issue and
sell to the Representative (and/or its designees) on the Effective
Date an option (“Representative’s Purchase
Option”) for the purchase of up to an aggregate of
1,250,000 units (“Representative’s Units”)
for an aggregate purchase price of $100. Each of the
Representative’s Units is identical to the Firm Units except
that the Warrants included in the Representative’s Units
(“Representative’s Warrants”) have an exercise
price of $6.65 (133% of the exercise price of the Warrants included
in the Units sold to the public). The Representative’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 five-year anniversary of the Effective Date at an
exercise price per Representative’s Unit of $7.50, which is
equal to 125% of the initial public offering price of a Unit. The
Representative’s Purchase Option, the Representative’s
Units, the Representative’s Warrants and the shares of Common
Stock issuable upon exercise of the Representative’s Warrants
are hereinafter referred to collectively as the
“Representative’s Securities.” The Public
Securities and the Representative’s Securities are
hereinafter referred to collectively as the
“Securities.”
1.4.2
Payment and Delivery . Delivery and payment for the
Representative’s Purchase Option shall be made on the Closing
Date. The Company shall deliver to the Underwriters, upon payment
therefor, certificates for the Representative’s Purchase
Option in the name or names and in such authorized denominations as
the Representative may request.
2.
Representations and Warranties of the Company . The Company
represents and warrants to the Underwriters as follows:
2.1 Filing of
the Registration Statement .
2.1.1
Pursuant to the Securities Act . The Company has filed with
the Commission on Form S-1 (File No. 333-128058) 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, 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
of 1933, as amended (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 [ ] 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 January ___, 2006,
for distribution by the Underwriters (the “Preliminary
Prospectus”). If, subsequent to the date of this Agreement,
the Company or the Representative has 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 have agreed to provide an
opportunity to purchasers of the 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.
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
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(“Exchange Act”), of the Units, the
Common Stock and the Warrants. The registration of the Units,
Common Stock and Warrants under the Exchange Act is effective as of
the date hereof.
2.2 No Stop
Orders, Etc. Neither the Commission nor, to the best of 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 best of the Company’s knowledge,
threatened to institute any proceedings with respect to such an
order.
2.3 Disclosures
in the 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 will 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. Nothing
has come to the attention of the Company that has caused the
Company to believe that the 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 accordance with the methodologies used to
derive such market-related data set forth in the underlying source
material) in all material respects.
2.3.2
Disclosure of Agreements . The agreements and documents
described in the Preliminary Prospectus, the Registration Statement
and the Prospectus conform 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 or the Prospectus or to be filed with the Commission as
exhibits to the Registration Statement, that have not been so
described or filed. Each agreement or other instrument (however
characterized or described) to which the Company is a party or by
which its property or business is or may be bound or affected and
(i) that is referred to in the Preliminary Prospectus or the
Prospectus, or (ii) is material to the Company’s
business, has been duly and validly executed by the Company, is in
full force and effect and is enforceable against the Company and,
to the Company’s knowledge, the other parties thereto, in
accordance with its terms, except (x) as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally, (y) as
enforceability of any indemnification or contribution provision may
be limited under the federal and state securities laws, and
(z) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought, and none of such agreements or
instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any
other party is in breach or default thereunder and, to the best of
the Company’s knowledge, no event has occurred that, with the
lapse of time or the giving of notice, or both, would constitute a
breach or default thereunder. To the best of the Company’s
knowledge, performance by the Company of the material provisions of
such agreements or instruments will not result in a violation of
any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign,
having jurisdiction over the Company or any of its assets or
businesses, including, without limitation, those relating to
environmental laws and regulations.
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
4
common control
with the Company since the formation of the Company, except as
disclosed in the Preliminary Prospectus, the Registration Statement
and the Prospectus.
2.3.4
American Stock Exchange Listing . 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.
2.4 Changes
After Dates in the 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 change in the condition, financial or otherwise, or
business prospects of the Company, (ii) there have been no
material transactions entered into by the Company, other than as
contemplated pursuant to this Agreement, and (iii) no member
of the Company’s management has resigned from any position
with the Company.
2.4.2
Recent Securities Transactions . Subsequent to the
respective dates as of which information is given in 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”), whose
report is filed with the Commission as part of the Registration
Statement, are independent accountants as required by the
Securities Act and the Regulations. BDO 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 Financial
Statements . The financial statements, including the notes
thereto 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
United States generally accepted accounting principles
(“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.
2.7 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 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. 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.
2.8 Valid
Issuance of Securities; Etc.
2.8.1
Outstanding Securities . All issued and outstanding
securities of the Company (including, without limitation, the
Placement Securities) 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
5
rights of any
holders of any security of the Company or similar contractual
rights granted by the Company. The authorized Common Stock conforms
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 and the
applicable state securities or Blue Sky laws or, based in part on
the representations and warranties of the purchasers of such shares
of Common Stock, exempt from such registration
requirements.
2.8.2
Securities Sold Pursuant to this Agreement . The Securities
have been duly authorized and, when issued and paid for, will be
validly issued, fully paid and non-assessable; the holders thereof
are not and will not be subject to personal liability by reason of
being such holders; the Securities are not and will not be subject
to the preemptive rights of any holders of any security of the
Company or similar contractual rights granted by the Company; and
all corporate action required to be taken for the authorization,
issuance and sale of the Securities has been duly and validly
taken. The Securities conform in all material respects to all
statements with respect thereto contained in the Preliminary
Prospectus, the Registration Statement and the Prospectus. When
issued, the Representative’s Purchase Option, the
Representative’s Warrants and the Warrants will constitute
valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment of the exercise price therefor,
the number and type of securities of the Company called for thereby
in accordance with the terms thereof and such
Representative’s Purchase Option, the Representative’s
Warrants and the Warrants are enforceable against the Company in
accordance with their respective terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification or
contribution provision may be limited under the federal and state
securities laws, and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
2.8.3
Placement Warrants . The Placement Warrants constitute valid
and binding obligations of the Company to issue and sell, upon
exercise thereof and payment of the respective exercise prices
therefor, the number and type of securities of the Company called
for thereby in accordance with the terms thereof, and such
Placement Warrants are enforceable against the Company in
accordance with their respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under federal and state
securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought. The
shares of Common Stock issuable upon exercise of the Placement
Warrants have been reserved for issuance upon the exercise of the
Placement Warrants and, when issued in accordance with the terms of
the Placement Warrants, will be duly and validly authorized,
validly issued, fully paid and non-assessable, and the holders
thereof are not and will not be subject to personal liability by
reason of being such holders.
2.9
Registration Rights of Third Parties . Except as set forth
in the Preliminary Prospectus and the Prospectus, no holders of any
securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the
right to require the Company to register any such securities of the
Company under the Securities Act or to include any such securities
in a registration statement to be filed by the Company.
2.10 Validity
and Binding Effect of Agreements . This Agreement, the Warrant
Agreement (as defined in Section 2.21 hereof), the Trust
Agreement (as defined in Section 2.22 hereof), those certain
letter agreements (each substantially in the form filed as Exhibit
10.2 to the Registration Statement), pursuant to which the Initial
Stockholders and the officers, directors and special advisors of
the Company agree 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”), the Placement Unit Purchase
Agreement (as defined in Section 2.28 hereof) and the Lock-up
Agreements (substantially in the form filed as Exhibit 10.3 to
the Registration Statement), whereby Common Stock owned by the
Initial Stockholders immediately before the Offering, excluding the
Common Stock included in the Placement Units, will be locked-up for
up to 3 years after the Effective Date (the “Lock-up
Agreements”) have been duly and validly authorized by the
Company and constitute the valid and binding agreements of the
Company, enforceable against the Company in accordance with their
respective terms, except (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally, (ii) as
enforceability of any indemnification or contribution provision may
be limited
6
under the
federal and state securities laws, and (iii) that the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought.
2.11 No
Conflicts, Etc . The execution, delivery, and performance by
the Company of this Agreement, the Warrant Agreement, the Trust
Agreement, the Insider Letters, the Placement Unit Purchase
Agreement and the Lock-up Agreements, 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
referred to in Section 2.22 hereof; (ii) result in any
violation of the provisions of the Amended and Restated Certificate
of Incorporation, as amended, or the Bylaws, as amended, 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.
2.12 No
Defaults; Violations . No material default exists in the due
performance and observance of any term, covenant or condition of
any material license, contract, indenture, mortgage, deed of trust,
note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any
other material agreement or instrument to which the Company is a
party or by which the Company may be bound or to which any of the
properties or assets of the Company is subject. The Company is not
in violation of any term or provision of its Amended and Restated
Certificate of Incorporation, as amended, or Bylaws, as amended, or
in violation of any material franchise, license, permit, applicable
law, rule, regulation, judgment or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the
Company or any of its properties or businesses.
2.13 Corporate
Power; Licenses; Ownership .
2.13.1
Conduct of Business . The Company has all requisite
corporate power and authority, and has all necessary
authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and
bodies that it needs as of the date hereof to conduct its business
as described in the Preliminary Prospectus, the Registration
Statement and the Prospectus. The disclosures in the Preliminary
Prospectus, the Prospectus and the Registration Statement
concerning the effects of federal, state and local regulation on
this offering and the Company’s business purpose as currently
contemplated are correct in all material respects and do not omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
2.13.2
Transactions Contemplated Herein . The Company has all
corporate power and authority to enter into this Agreement and to
carry out the provisions and conditions hereof, and all consents,
authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or order
of, and no filing with, any court, government agency or other body
is required for the valid issuance, sale and delivery, of the
Securities and the consummation of the transactions and agreements
contemplated by this Agreement, the Warrant Agreement, the Trust
Agreement, the Insider Letters, the Placement Unit Purchase
Agreement and the Lock-up Agreements and as contemplated by the
Prospectus, except with respect to applicable federal and state
securities laws.
2.13.3
Ownership . Except as set forth in the Preliminary
Prospectus, the Registration Statement and the Prospectus, the
Company owns or has valid leasehold interests in all material
properties and assets required for the operation of its business as
now conducted or as presently proposed to be conducted, including
those described in the Preliminary Prospectus, the Registration
Statement and the Prospectus as being owned by it; and the Company
has good and marketable title to all properties and assets owned by
it material to its business in each case free from liens,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by the Company. 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, in each case with no
exceptions that would materially interfere with the use made or to
be made thereof by the Company and the Company enjoys peaceful and
undisturbed possession under all such leases to which it is a party
as lessee. The
7
Company owns or
possesses, or can acquire on a timely basis and on commercially
reasonable terms, all material trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property necessary for the
Company’s business as currently proposed to be
conducted.
2.14 D&O
Questionnaires . To the best of the Company’s knowledge,
all information contained in the director and officer
questionnaires and NASD supplemental questionnaires
(“Questionnaires”) completed by the Initial
Stockholders and the officers, directors and special advisors of
the Company and provided to the Representative as an exhibit to his
or her Insider Letter (as defined in Section 2.10) is true and
correct and the Company has not become aware of any information
which would cause the information disclosed in the questionnaires
completed by the Initial Stockholders and the officers, directors
and special advisors of the Company to become inaccurate and
incorrect.
2.15
Litigation; Governmental Proceedings . There is no action,
suit, proceeding, inquiry, arbitration, investigation, litigation
or governmental proceeding pending or, to the best of the
Company’s knowledge, threatened against, or involving the
Company, which has not been disclosed in the Preliminary
Prospectus, the Prospectus or the Registration Statement, except
for actions, suits, proceedings, inquiries, arbitrations,
investigations, litigation or government proceedings pending
against the Initial Stockholders, the officers, directors or
special advisors of the Company that would not individually or in
the aggregate have a material adverse effect on the Company or the
Offering.
2.16 Good
Standing . The Company has been duly organized and is validly
existing as a corporation and is in good standing under the laws of
its state of incorporation, and is duly qualified to do business
and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of business requires such qualification, except where the
failure to qualify would not have a material adverse effect on the
Company.
2.17
Sarbanes-Oxley . There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply with (as and when
applicable), and immediately following the effectiveness of the
Registration Statement the Company will be in compliance with,
Sections 301, 402, 802 and 1102 of 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”), and Part 8 of the American
Stock Exchange’s “AMEX Company Guide,” as
amended. Further, there is and has been no failure on the part of
the Company or any of the Company’s directors or officers, in
their capacities as such, to comply with (as and when applicable),
and immediately following the effectiveness of the Registration
Statement the Company will be in compliance with, all other
applicable provisions of the Sarbanes-Oxley Act and the American
Stock Exchange corporate governance requirements set forth in the
AMEX Company Guide, as amended.
2.18
Transactions Affecting Disclosure to NASD .
2.18.1
Finder’s Fees . Except as described in the Preliminary
Prospectus, the Registration Statement and the Prospectus, there
are no claims, payments, arrangements, agreements or understandings
relating to the payment of a finder’s, consulting or
origination fee by the Company, any Initial Stockholder or any
officer, director and special advisor of the Company with respect
to the sale of the Securities hereunder or any other arrangements,
agreements or understandings of the Company or, to the best of the
Company’s knowledge, any Initial Stockholder or any officer,
director and special advisor of the Company that may affect the
Underwriters’ compensation, as determined by the National
Association of Securities Dealers, Inc.
(“NASD”).
2.18.2
Payments Within Twelve Months . The Company has not made any
direct or indirect payments (in cash, securities or otherwise)
(i) to any person, as a finder’s fee, consulting fee or
otherwise, in consideration of such person raising capital for the
Company or introducing to the Company persons who raised or
provided capital to the Company, (ii) to any NASD member or
(iii) to any person or entity that has any direct or indirect
affiliation or association with any NASD member, within the twelve
months prior to the Effective Date.
2.18.3
Use of Proceeds . None of the net proceeds of the Offering
or the Private Placement will be paid by the Company to any
participating NASD member or its affiliates, except as specifically
authorized herein
8
and except as
may be paid in connection with a Business Combination as
contemplated by the Prospectus.
2.18.4
Insiders’ NASD Affiliation . Based on the
Questionnaires distributed to such persons, except as set forth on
Schedule 2.18.4, no officer, director or any beneficial owner
of the Company’s unregistered securities has any direct or
indirect affiliation or association with any NASD member. The
Company will advise the Representative and its counsel if it learns
that any officer or director or owner of at least 5% of the
Company’s outstanding Common Shares is or becomes an
affiliate or associated person of an NASD member participating in
the Offering.
2.19 Foreign
Corrupt Practices Act . Neither the Company nor any of the
Initial Stockholder or any officer, director or special advisor of
the Company or any other person acting on behalf of the Company
has, directly or indirectly, given or agreed to give any money,
gift or similar benefit (other than legal price concessions to
customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any
government (domestic or foreign) or any political party or
candidate for office (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or other person who
was, is, or may be in a position to help or hinder the business of
the Company (or assist it in connection with any actual or proposed
transaction) that (i) might subject the Company to any damage
or penalty in any civil, criminal or governmental litigation or
proceeding, (ii) if not given in the past, might have had a
material adverse effect on the assets, business or operations of
the Company as reflected in any of the financial statements
contained in the Preliminary Prospectus, the Registration Statement
and the Prospectus or (iii) if not continued in the future,
might adversely affect the assets, business, operations or
prospects of the Company. The Company’s internal accounting
controls and procedures are sufficient to cause the Company to
comply with the Foreign Corrupt Practices Act of 1977, as
amended.
2.20
Officer’s Certificate . Any certificate signed by any
duly authorized officer of the Company and delivered to the
Representative or to the Representative’s counsel shall be
deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
2.21 Warrant
Agreement . The Company has entered into a warrant agreement
with respect to the Warrants, the Representative’s Warrants
and the Placement Warrants with Continental Stock Transfer &
Trust Company substantially in the form filed as Exhibit 4.4
to the Registration Statement (“Warrant
Agreement”).
2.22 Investment
Management Trust Agreement . The Company has entered into the
Investment Management Trust Agreement with respect to certain
proceeds of the Offering substantially in the form filed as
Exhibit 10.4 to the Registration Statement (“Trust
Agreement”).
2.23 Covenants
Not to Compete . No Initial Stockholder, employee, officer,
director or special advisor of the Company is subject to any
noncompetition agreement or non-solicitation agreement with any
employer or prior employer which could materially affect his
ability to be an Initial Stockholder, employee, officer, director
and/or special advisor of the Company.
2.24 Investment
Company Act . The Company is not and, after giving effect to
the offering and sale of the Units contemplated hereunder and the
application of the net proceeds from such sale as described in the
Registration Statement and the Prospectus, will not be an
“investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
2.25
Rule 419 Under the Act . Upon delivery and payment for
the Firm Units on the Closing Date, the Company will not be subject
to Rule 419 under the Securities Act and none of the
Company’s outstanding securities will be deemed to be a
“penny stock” as defined in rule 3a-51-1 under the
Exchange Act.
2.26
Subsidiaries . The Company does not own an interest in any
corporation, partnership, limited liability company, joint venture,
trust or other business entity.
9
2.27 Related
Party Transactions . There are no business relationships or
related party transactions involving the Company or any other
person required to be described in the Preliminary Prospectus or
the Prospectus that have not been described as required.
2.28 Placement
Unit Purchase Agreement . The Initial Stockholders have
executed and delivered an agreement, annexed as Exhibit 10.7 to the
Registration Statement (“Placement Unit Purchase
Agreement”), pursuant to which the Initial Stockholders have,
among other things, purchased an aggregate of 333,334 Placement
Units in the Private Placement. Pursuant to the Placement Unit
Purchase Agreement, (i) $2,000,004 of the proceeds from the sale of
the Placement Units will be deposited by the Company in the Trust
Fund in accordance with the terms of the Trust Agreement prior to
the Closing Date, and (ii) the purchasers of the Placement
Units have waived any and all rights and claims they may have to
any proceeds, and any interest thereon, held in the Trust Fund in
respect of the shares of Common Stock included in such Placement
Units in the event that a Business Combination is not consummated
and the Trust Fund is liquidated in accordance with the terms of
the Trust Agreement.
3. Covenants
of the Company . The Company covenants and agrees as
follows:
3.1 Amendments
to the Registration Statement . The Company will deliver to the
Representative, prior to filing, any amendment or supplement to the
Registration Statement or the Prospectus proposed to be filed after
the Effective Date and not file any such amendment or supplement to
which the Representative shall reasonably object in
writing.
3.2 Federal
Securities Laws .
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