Exhibit 1.1
UNDERWRITING
AGREEMENT
between
GLOBAL SERVICES PARTNERS
ACQUISITION CORP.
and
HCFP/BRENNER SECURITIES
LLC
Dated:
, 2006
GLOBAL SERVICES PARTNERS ACQUISITION
CORP.
UNDERWRITING
AGREEMENT
New York, New York
, 2006
HCFP/Brenner Securities LLC
888 Seventh Avenue
17 th Floor
New York, New York 10106
Dear Sirs:
The undersigned, Global Services
Partners Acquisition Corp., a Delaware corporation
(“Company”), hereby confirms its agreement with
HCFP/Brenner Securities LLC (being referred to herein variously as
“you,” “Brenner” or the
“Representative”) and with the other underwriters named
on Schedule I hereto for which Brenner 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 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, severally and not jointly, to the several
Underwriters, an aggregate of 400,000 Series A Units (“Series
A Units”) and 2,600,000 Series B Units (“Series B
Units” and together with the Series A Units, the “Firm
Units”) of the Company, at a purchase price (net of discounts
and commissions) of $7.990 per Series A Unit and $9.494 per Series
B Unit. The Underwriters, severally and not jointly, agree to
purchase from the Company the number of Firm Units set forth
opposite their respective names on Schedule I attached hereto and
made a part hereof at a purchase price (net of discounts and
commissions) of $7.990 per Series A Unit and $9.494 per Series B
Unit. The Series A Units and Series B Units are to be offered
initially to the public (“Offering”) at the offering
price of $8.50 and $10.10 per Series A Unit and Series B Unit,
respectively. Each Series A Unit consists of two shares of the
Company’s common stock, par value $.0001 per share
(“Common Stock”), and ten Class Z Warrants
(“Class Z Warrants”). Each Series B Unit consists of
two shares of the Company’s Class B common stock, par value
$.0001 per share (“Class B Common Stock”), and two
Class W Warrants (“Class W Warrants”, and together with
the Class Z Warrants, “Warrants”).
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Each of the shares of Common Stock
and Class Z Warrants included in the Series A Units and each of the
shares of Class B Common Stock and Class W Warrants included in the
Series B Units will not be separately transferable until 90 days
after the effective date (“Effective Date”) of the
Registration Statement (as defined in Section 2.1.1 hereof) unless
Brenner informs the Company of its decision to allow earlier
separate trading of either the shares of Common Stock and Class Z
Warrants included in the Series A Units or the shares of Class B
Common Stock and Class Z Warrants included in the Series B Units,
or all of the securities comprising both the Series A Units and
Series B Units, but in no event will Brenner allow any separate
trading until the preparation of an audited balance sheet of the
Company reflecting receipt by the Company of the proceeds of the
Offering and the filing of a Form 8-K by the Company which includes
such balance sheet. Each Class W 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 (i) one year from the
Effective Date of the Registration Statement and (ii) the
consummation by the Company of its “Business
Combination” and terminating on the five-year anniversary of
the Effective Date. Each Class Z 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 (i) one year from the
Effective Date of the Registration Statement and (ii) the
consummation by the Company of its Business Combination and
terminating on the seven-year anniversary of the Effective Date.
“Business Combination” shall mean any merger, capital
stock exchange, asset acquisition or other similar business
combination consummated by the Company with an operating business
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 10:00
A.M., New York time, on the fourth business day following the
Effective Date of the Registration Statement or at such other 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 payment for the Firm Units are called
“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: $26,260,000 of the proceeds received by the Company for
the Firm Units shall be deposited in the trust fund established by
the Company for the benefit of the public stockholders as described
in the Registration Statement (“Trust Fund”) pursuant
to the terms of an Investment Management Trust Agreement
(“Trust Agreement”) and the remaining proceeds shall be
paid to the order of the Company (subject to Section 3.13 hereof)
upon delivery to you of certificates (in form and substance
satisfactory to the Underwriters) representing the Firm Units (or
through the facilities of the Depository Trust Company
(“DTC”)) for the account of the Underwriters. The Firm
Units shall be registered in such name or names and in such
authorized denominations as the Representative may request in
writing at least two full business days prior to the Closing Date.
The Company will permit the Representative to examine and package
the Firm Units for delivery, at least one full business day prior
to the Closing Date. The Company shall not be obligated to sell or
deliver the Firm Units except upon tender of payment by the
Representative for all the Firm Units.
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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 60,000 Series A Units and/or 390,000 Series B
Units from the Company (“Over-allotment Option”). Such
additional 60,000 Series A Units and/or 390,000 Series B Units are
hereinafter referred to as “Option Units.” The Firm
Units and the Option Units are hereinafter collectively referred to
as the “Units,” and the Units, the shares of Common
Stock, shares of Class B Common Stock and 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 .
The Over-allotment Option granted pursuant to Section 1.2.1 hereof
may be exercised by the Representative as to all (at any time) or
any part (from time to time) of the Option Units within 45 days
after the Effective Date; provided, however, that any exercise of
the Over-allotment Option must ensure that the net proceeds to the
Company therefrom will be sufficient for the Company to deposit an
amount equal to at least $10.10 per Series B Unit as to which the
Over-allotment Option is exercised. 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 Underwriters, and, subject to the terms and
conditions set forth herein, the Underwriters 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 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 as follows:
$10.10 per Series B Unit sold pursuant to the Over-Allotment Option
shall be deposited in the Trust Fund pursuant to the Trust
Agreement and the remaining proceeds shall be paid to the order of
the Company (subject to Section 3.13 hereof) upon delivery to you
of certificates (in form and substance satisfactory to the
Underwriters) representing such securities (or through the
facilities of DTC) for the account of the Underwriters. 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 Representative’s
Purchase Option .
1.3.1 Purchase Option . The
Company hereby agrees to issue and sell to the Representative
(and/or their designees) on the Effective Date an option
(“Representative’s Purchase Option”) for the
purchase of an aggregate of
Series A Units and/or
Series B 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 exercise price of the Warrants included in the
Representative’s Units shall be
$
per share and the Class Z Warrants included in the
Representative’s Units shall be exercisable by the
Representative terminating on the five-year anniversary of the
Effective Date. 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 initial exercise price per
Representative’s Unit of
$
per Series A Unit and
$
per Series B Unit. The Representative’s Purchase Option, the
Representative’s Units, the Warrants underlying 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.” The Representative
understands and agrees that there are significant restrictions
against transferring the Representative’s Purchase Option
during the first year after the Effective Date, as set forth in
Section 3 of the Representative’s Purchase Option.
1.3.2 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 Registration
Statement .
2.1.1 Pursuant to the Act .
The Company has filed with the Securities and Exchange Commission
(“Commission”) a registration statement and an
amendment or amendments thereto, on Form S-1 (File No. 333-128350),
including any related preliminary prospectus (“Preliminary
Prospectus”), for the registration of the Public Securities
under the Securities Act of 1933, as amended (“Act”),
which registration statement and amendment or amendments have been
prepared by the Company in conformity with the requirements of the
Act, and the rules and regulations (“Regulations”) of
the Commission under the Act. Except as the context may otherwise
require, such registration statement, as amended, on file with the
Commission at the time the registration statement becomes effective
(including the prospectus, financial statements, schedules,
exhibits and all other documents filed as a part thereof or
incorporated therein and all information deemed to be a part
thereof as of such time pursuant to paragraph (b) of Rule 430A of
the Regulations), is hereinafter called the “Registration
Statement,” and the form of the final prospectus dated the
Effective Date included in the Registration Statement (or, if
applicable, the form of final prospectus filed with the Commission
pursuant to
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Rule 424 of the Regulations), is
hereinafter called the “Prospectus.” The Registration
Statement has been declared effective by the Commission on the date
hereof.
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 Series A
Units, Series B Units, the Common Stock, Class B Common Stock,
Class W Warrants and Class Z Warrants. The registration of the
Series A Units, Series B Units, the Common Stock, Class B Common
Stock, Class W Warrants and Class Z Warrants under the Exchange Act
has been declared effective by the Commission on 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, or threatened
to issue, any order preventing or suspending the use of any
Preliminary 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 Registration
Statement .
2.3.1 10b-5 Representation .
At the time the Registration Statement became effective and at all
times subsequent thereto up to the Closing Date and the Option
Closing Date, if any, the Registration Statement and the Prospectus
will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in
all material respects conform to the requirements of the Act and
the Regulations; neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, on such dates,
will contain any untrue statement of a material fact or 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. When any Preliminary
Prospectus was first filed with the Commission (whether filed as
part of the Registration Statement for the registration of the
Securities or any amendment thereto or pursuant to Rule 424(a) of
the Regulations) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto
complied or will comply in all material respects with the
applicable provisions of the 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. The
representation and warranty made in this Section 2.3.1 does not
apply to statements made or statements omitted in reliance upon and
in conformity with written information furnished to the Company
with respect to the Underwriters by the Representative expressly
for use in the Registration Statement or Prospectus or any
amendment thereof or supplement thereto.
2.3.2 Disclosure of
Agreements . The agreements and documents described in 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 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 Prospectus, or
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(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 common
control with the Company since the Company’s formation,
except as disclosed in the Registration Statement.
2.3.4 Regulations . The
disclosures in the Registration Statement concerning the effects of
Federal, State and local regulation on the Company’s business
as currently contemplated are correct in all material respects and
do not omit to state a material fact.
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 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, Etc. 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 Act and the Regulations.
BDO has not, during the periods covered by the
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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 and
supporting schedules included in the Registration Statement and
Prospectus fairly present in all material respects 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, consistently applied
throughout the periods involved; and the supporting schedules
included in the Registration Statement present fairly the
information required to be stated therein. The Registration
Statement discloses 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
Prospectus duly authorized, issued and outstanding capitalization
as set forth in the Registration Statement and the Prospectus.
Based on the assumptions stated in 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 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 Class B Common Stock of the Company or any security
convertible into shares of Common Stock or Class B Common Stock of
the Company, or any contracts or commitments to issue or sell
shares of Common Stock or Class B 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 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 and Class B Common Stock
conform to all statements relating thereto contained in the
Registration Statement and the Prospectus. The offers and sales of
the outstanding Common Stock were at all relevant times either
registered under the 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
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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 Registration Statement. 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 respective exercise prices 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 the equitable defenses and to
the discretion of the court before which any proceeding therefor
may be brought.
2.9 Registration Rights of Third
Parties . Except as set forth in 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.
2.10 Validity and Binding Effect
of Agreements . This Agreement, the Warrant Agreement (as
defined in Section 2.21 hereof), the Trust Agreement and the
Services Agreement (as defined in Section 3.7.2 hereof) have been
duly and validly authorized by the Company and constitute, and the
Representative’s Purchase Option, has been duly and validly
authorized by the Company and, when executed and delivered, will
constitute, the valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (ii) as enforceability of any
indemnification or contribution provision may be limited under the
federal and state securities laws, and (iii) that the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
2.11 No Conflicts, Etc . The
execution, delivery, and performance by the Company of this
Agreement, the Warrant Agreement, the Representative’s
Purchase Option, the Trust Agreement and the Services 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 referred to in Section
2.23 hereof; (ii) result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws 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, business or assets.
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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 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, businesses or assets.
2.13 Corporate Power; Licenses;
Consents .
2.13.1 Conduct of Business .
The Company has all requisite corporate power and authority, and
has all necessary authorizations, approvals, orders, licenses,
certificates, consents and permits of and from all governmental
regulatory officials and bodies that it needs as of the date hereof
to conduct its business purpose as described in the Prospectus. The
disclosures in 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, the Representative’s Purchase
Option, the Trust Agreement and the Services Agreement and to carry
out the provisions and conditions hereof, and all consents,
authorizations, approvals, licenses, certificates, permits 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 Representative’s Purchase Option and
the Trust Agreement and as contemplated by the Prospectus, except
with respect to applicable federal and state securities
laws.
2.14 D&O Questionnaires .
To the best of the Company’s knowledge, all information
contained in the questionnaires (“Questionnaires”)
completed by each of the Company’s securityholders
immediately prior to the Offering (“Initial
Stockholders”) and provided to the Underwriters as an exhibit
to his or her Insider Letters (as defined in Section 2.22) 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 each Initial Stockholder 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 or, to the best of the
Company’s knowledge, any Initial Stockholder which has not
been disclosed in the Registration Statement or the
Questionnaires.
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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 businesses
requires such qualification, except where the failure to qualify
would not have a material adverse effect on the Company.
2.17 Stop Orders . The
Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus or Prospectus or any part
thereof.
2.18 Transactions Affecting
Disclosure to NASD .
2.18.1 Finder’s Fees .
Except as described in the Prospectus, there are no claims,
payments, arrangements, agreements or understandings relating to
the payment of a finder’s, consulting or origination fee by
the Company or any Initial Stockholder 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 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, other
than payments to Brenner.
2.18.3 Use of Proceeds . None
of the net proceeds of the Offering will be paid by the Company to
any participating NASD member or its affiliates, except as
specifically authorized herein 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 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,
director or owner of at least 5% of the Company’s outstanding
securities 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 Stockholders
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
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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 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 Officers’
Certificate . Any certificate signed by any duly authorized
officer of the Company and delivered to you or to your 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 one or more warrant agreements with
respect to the Warrants and the Representative’s Warrants
with American Stock Transfer & Trust Company substantially in
the form(s) filed as exhibit(s) to the Registration Statement
(“Warrant Agreements”), providing for, among other
things, the payment of a warrant solicitation fee as contemplated
by Section 3.9 hereof.
2.22 Insider Letters . The
Company has caused to be duly executed legally binding and
enforceable agreements (except (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally, (ii) as enforceability
of any indemnification, contribution or noncompete provision may be
limited under the federal and state securities laws, and (iii) that
the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to the equitable defenses and to
the discretion of the court before which any proceeding therefor
may be brought) annexed as Exhibits 10.1 through 10.9 to the
Registration Statement (collectively, “Insider
Letters”), pursuant to which each of the Initial Stockholders
of the Company agree to certain matters described as being agreed
to by them under the “Proposed Business” section of the
Prospectus, including, but not limited to, their agreement to not
sell any of their Common Stock or Warrants, including any shares of
Common Stock issuable upon exercise of such Warrants, until the
Company’s completion of a Business Combination.
2.23 Investment Management Trust
Agreement . The Company has entered into the Trust Agreement
with respect to certain proceeds of the Offering in form and
substance satisfactory to the Underwriters.
2.24 Covenants Not to Compete
. No Initial Stockholder, employee, officer or director 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 and/or director of the
Company.
2.25 Investment Company Act;
Investments . The Company has been advised concerning the
Investment Act of 1940, as amended (the “Investment Company
Act”), and the rules and regulations thereunder and has in
the past conducted, and intends in the future to conduct, its
affairs in such a manner as to ensure that it will not become an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act and such rules and
regulations. The Company is not, nor will the
11
Company become upon the sale of the Units and
the application of the proceeds therefore as described in the
Prospectus under the caption “Use of Proceeds”, an
“investment company” or a person controlled by an
“investment company” within the meaning of the
Investment Company Act. No more than 45% of the “value”
(as defined in Section 2(a)(41) of the Investment Company Act) of
the Company’s total assets (exclusive of cash items and
“Government Securities” (as defined in Section 2(a)(16)
of the Investment Company Act) consist of, and no more than 45% of
the Company’s net income after taxes is derived from,
securities other than the Government Securities.
2.26 Subsidiaries . The
Company does not own an interest in any corporation, partnership,
limited liability company, joint venture, trust or other business
entity.
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 Prospectus that have not been
described as required.
3. Covenants of the Company . The Company
covenants and agrees as follows:
3.1 Amendments to Registration
Statement . The Company will deliver to the Representative,
prior to filing, any amendment or supplement to the Registration
Statement or 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
.
3.2.1 Compliance . During the
time when a Prospectus is required to be delivered under the Act,
the Company will use all reasonable efforts to comply with all
requirements imposed upon it by the Act, the Regulations and the
Exchange Act and by the regulations under the Exchange Act, as from
time to time in force, so far as necessary to permit the
continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If at any
time when a Prospectus relating to the Public Securities is
required to be delivered under the Act, any event shall have
occurred as a result of which, in the opinion of counsel for the
Company or counsel for the Underwriters, the Prospectus, as then
amended or supplemented, includes an untrue statement of a material
fact or omits 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, or if
it is necessary at any time to amend the Prospectus to comply with
the Act, the Company will notify the Representative promptly and
prepare and file with the Commission, subject to Section 3.1
hereof, an appropriate amendment or supplement in accordance with
Section 10 of the Act.
3.2.2 Filing of Final
Prospectus . The Company will file the Prospectus (in form and
substance satisfactory to the Representative) with the Commission
pursuant to the requirements of Rule 424 of the
Regulations.
3.2.3 Exchange Act
Registration . For a period of five years from the Effective
Date, or until such earlier time upon which the Company is required
to be liquidated, the Company will use its best efforts to maintain
the registration of the Units, Common Stock, Class
12
B Common Stock and Warrants under
the provisions of the Exchange Act. The Company will not deregister
the Units under the Exchange Act without the prior written consent
of Brenner.
3.3 Blue Sky Filing . The
Company will endeavor in good faith, in cooperation with the
Representative, at or prior to the time the Registration Statement
becomes effective, to qualify the Public Securities for offering
and sale under the securities laws of such jurisdictions as the
Representative may reasonably designate, 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. In each jurisdiction where such qualification
shall be effected, the Company will, unless the Representative
agrees 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 by the laws of such
jurisdiction.
3.4 Delivery to Underwriters of
Prospectuses . The Company will deliver to each of the several
Underwriters, without charge, from time to time during the period
when the Prospectus is required to be delivered under the Act or
the Exchange Act such number of copies of each Preliminary
Prospectus and the Prospectus as such Underwriters may reasonably
request and, as soon as the Registration Statement or any amendment
or supplement thereto becomes effective, deliver to you two
original executed Registration Statements, including exhibits, and
all post-effective amendments thereto and copies of all exhibits
filed therewith or incorporated therein by reference and all
original executed consents of certified experts.
3.5 Effectiveness and Events
Requiring Notice to the Representative . The Company will use
its best efforts to cause the Registration Statement to remain
effective and will notify the Representative immediately and
confirm the notice in writing (i) of the effectiveness of the
Registration Statement and any amendment thereto, (ii) of the
issuance by the Commission of any stop order or of the initiation,
or the threatening, of any proceeding for that purpose, (iii) of
the issuance by any state securities commission of any proceedings
for the suspension of the qualification of the Public Securities
for offering or sale in any jurisdiction or of the initiation, or
the threatening, of any proceeding for that purpose, (iv) of the
mailing and delivery to the Commission for filing of any amendment
or supplement to the Registration Statement or Prospectus, (v) of
the receipt of any comments or request for any additional
information from the Commission, and (vi) of the happening of any
event during the period described in Section 3.4 hereof that, in
the judgment of the Company, makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or
the Prospectus in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. If
the Commission or any state securities commission shall enter a
stop order or suspend such qualification at any time, the Company
will make every reasonable effort to obtain promptly the lifting of
such order.
3.6 Review of Financial
Statements . For a period of five years from the Effective
Date, or until such earlier time upon which the Company is required
to be liquidated, the Company, at its expense, shall cause its
regularly engaged independent certified public accountants 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
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Company’s Form 10-Q quarterly report and
the mailing of quarterly financial information to
stockholders.
3.7 Affiliated Transactions
.
3.7.1 Business Combinations .
The Company will not consummate a Business Combination with any
entity which is affiliated with any Initial Stockholder unless the
Company obtains an opinion from an independent investment banking
firm that the Business Combination is fair to the Company’s
stockholders from a financial perspective.
3.7.2 Administrative Services
. The Company has entered into an agreement with Everest Telecom
LLC (“Affiliate”) pursuant to which the Affiliate will
make available to the Company general and administrat
