EXHIBIT 1.1
UNDERWRITING AGREEMENT
BETWEEN
JAGUAR ACQUISITION CORPORATION
AND
EARLYBIRDCAPITAL, INC.
DATED: _____________________, 2006
JAGUAR ACQUISITION CORPORATION
UNDERWRITING AGREEMENT
----------------------
New York, New York
_________, 2006
EarlyBirdCapital, Inc.
275 Madison Avenue, Suite 1203
New York, New York 10016
Dear Sirs:
The undersigned, Jaguar Acquisition Corporation, a Delaware
corporation ("Company"), hereby confirms its agreement with
EarlyBirdCapital,
Inc. (being referred to herein variously as "you," "EBC" or the
"Representative") and with the other underwriters named on Schedule
I hereto for
which EBC 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 4,000,000
units ("Firm
Units") of the Company, at a purchase price (net of discounts and
commissions)
of $5.58 per Firm 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 $5.58 per Firm
Unit. The
Firm Units are to be offered initially to the public ("Offering")
at the
offering price of $6.00 per Firm Unit. Each Firm Unit consists of
one share of
the Company's common stock, par value $.0001 per share ("Common
Stock"), and two
warrants ("Warrant(s)"). The shares of Common Stock and the
Warrants included in
the Firm 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 EBC informs the Company of its
decision to allow
earlier separate trading, but in no event will EBC allow separate
trading until
(i) 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 and (ii) at
least 60 days
have passed since the distribution of the Units (as defined below)
in the
Offering has been completed. 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 and terminating on the four-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 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
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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: $21,115,000 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
(subject to Section
3.13 hereof) to the order of the Company 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.
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 600,000 units from the Company
("Over-allotment
Option"). Such additional 600,000 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 and the
Warrants included in the Units and the shares of Common Stock
issuable upon
exercise of the Warrants are hereinafter referred to collectively
as the "Public
Securities." The purchase price to be paid for the Option Units
will be the same
price per Option Unit as the price per Firm Unit set forth in
Section 1.1.1
hereof.
1.2.2 Exercise of Option. 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. 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: approximately
$5.47 per
Option Unit shall be deposited in the Trust Fund pursuant to the
Trust Agreement
and the remaining $40,000 of proceeds shall be paid (subject to
Section 3.13
hereof) to the order of the Company upon delivery to you of
certificates (in
form and substance satisfactory to the Underwriters) representing
the Option
Units (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
______ units ("Representative's Units") for an aggregate purchase
price of $100.
Each of the Representative's Units is identical to the Firm Units.
The
Representative's Purchase Option shall be exercisable, in whole or
in part,
commencing on the later of the consummation of a Business
Combination and one
year from the Effective Date and expiring on the five-year
anniversary of the
Effective Date at an initial exercise price per Representative's
Unit of $___,
which is equal to _________ (___%) 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." 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.
333-127135), including
any related preliminary prospectus ("Preliminary Prospectus"), for
the
registration of the 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 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 000-51546) providing for the
registration
under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), of the
Units, the Common Stock and the Warrants. The registration of the
Units, Common
Stock and Warrants under the Exchange Act has been declared
effective by the
Commission on the date hereof.
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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 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 does and 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, does or 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 (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.
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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 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 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; 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
summary
financial data included in the Registration Statement and the
Prospectus present
fairly the information shown thereon and have been compiled on a
basis
consistent with the audited financial statements presented therein.
No other
financial statements or schedules are required to be included in
the
Registration Statement or the Prospectus. 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 of the
Company or any security convertible into shares of Common Stock of
the Company,
or any contracts or commitments to issue or sell shares of Common
Stock or any
such options, warrants, rights or convertible securities.
2.8
Valid Issuance of Securities; Etc.
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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 conforms
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 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.
2.8.3 Insider Units. Certain of the Company's stockholders
immediately prior to the Offering (all of which stockholders are
referred to as
the "Initial Stockholders") and/or their affiliates (such
individuals being
referred to as the "Unit Purchasers"), have committed to purchase
an aggregate
of 116,667 Units ("Insider Units") at $6.00 per Unit (for an
aggregate purchase
price of $700,002) from the Company upon consummation of the
Offering. The
Insider Units have been duly authorized and, when issued and paid
for in
accordance with the subscription agreements ("Subscription
Agreements") entered
into by such individuals to purchase such Insider Units, 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
Insider Units
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 Insider Units has been duly and validly taken.
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, the
Services Agreement (as defined in Section 3.7.2 hereof), the
Subscription
Agreements and the Escrow Agreement (as defined in Section 2.22.2
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, the Services Agreement, the
Subscription Agreements
and the Escrow Agreement, the consummation by the Company of the
transactions
herein and therein contemplated and the compliance by the Company
with the terms
hereof and thereof do not and will not, with or without the giving
of notice or
the lapse of time or both (i) result in a breach of, or conflict
with any of the
terms and provisions of, or constitute a default under, or result
in the
creation, modification,
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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 2.24 hereof; (ii) result in any violation of the
provisions of the
Certificate of Incorporation or the Bylaws of the Company; or (iii)
violate any
existing applicable law, rule, regulation, judgment, order or
decree of any
governmental agency or court, domestic or foreign, having
jurisdiction over the
Company or any of its properties or business.
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 or
businesses.
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 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 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 Representative's
Purchase Option,
the Trust Agreement and the Escrow 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 Initial Stockholders and provided to the Underwriters as an
exhibit to
his or her Insider Letter (as defined in Section 2.22.1) 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.
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
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property or the conduct of business requires such qualification,
except where
the failure to qualify would not have a material adverse effect on
the assets,
business or operations of 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 and has not threatened to issue any such order.
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. Other than payments to
EBC, the Company has not within the twelve months prior to the
Effective Date
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.
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 Common
Stock 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
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.
8
2.21 Warrant Agreement. The Company has entered into a warrant
agreement with respect to the Warrants, the Warrants underlying the
Insider
Units (the "Insider Warrants," and together with the Insider Units
and the
Common Stock underlying such Insider Units, the "Insider
Securities") and the
Representative's Warrants with Continental Stock Transfer &
Trust Company
substantially in the form annexed as Exhibit 4.5 to the
Registration Statement
("Warrant Agreement").
2.22
Agreements With Initial Stockholders.
2.22.1 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, 10.2,
10.3, 10.4,
10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.20 and 10.21
to the
Registration Statement ("Insider Letters"), pursuant to which each
of the
Initial Stockholders and/or officers and directors of the Company
agrees to
certain matters, including but not limited to, certain matters
described as
being agreed to by them under the "Proposed Business" section of
the Prospectus.
2.22.2 Escrow Agreement. The Company has caused the Initial
Stockholders to enter into an escrow agreement ("Escrow Agreement")
with
Continental Stock Transfer & Trust Company ("Escrow Agent")
substantially in the
form annexed as Exhibit 10.14 to the Registration Statement,
whereby the Common
Stock owned by the Initial Stockholders will be held in escrow by
the Escrow
Agent, until the third anniversary of the Effective Date. During
such escrow
period, the Initial Stockholders shall be prohibited from selling
or otherwise
transferring such shares (except to spouses and children of Initial
Stockholders
and trusts established for their benefit and as otherwise set forth
in the
Escrow Agreement) but will retain the right to vote such shares. To
the
Company's knowledge, the Escrow Agreement is enforceable against
each of the
Initial Stockholders and will not, with or without the giving of
notice or the
lapse of time or both, result in a breach of, or conflict with any
of the terms
and provisions of, or constitute a default under, any agreement or
instrument to
which any of the Initial Stockholders is a party. The Escrow
Agreement shall not
be amended, modified or otherwise changed without the prior written
consent of
EBC.
2.22.3 Subscription Agreements. The Company has entered into
the Subscription Agreements substantially in the form annexed as
Exhibit 10.22
to the Registration Statement with the Unit Purchasers to purchase
the Insider
Units. Pursuant to the Subscription Agreements, the Unit Purchasers
shall place
the purchase price for the Insider Units in escrow prior to the
consummation of
the Offering. Simultaneously with the consummation of the Offering,
such
purchase price shall be deposited into the Trust Fund pursuant to
the Trust
Agreement.
2.23
Intentionally Omitted.
2.24
Investment Management Trust Agreement. The Company has entered
into the Trust Agreement with respect to certain proceeds of the
Offering
substantially in the form annexed as Exhibit 10.13 to the
Registration
Statement.
2.25 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.
2.26 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 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 1940 ("Investment Company
Act")) of
the Company's total assets (exclusive of cash items and "Government
Securities"
(as
9
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.
2.27 Subsidiaries. The Company does not own an interest in any
corporation, partnership, limited liability company, joint venture,
trust or
other business entity.
2.28 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. There
are no outstanding loans, advances (except normal advances for
business expenses
in the ordinary course of business) or guarantees of indebtedness
by the Company
to or for the benefit of any of the officers or directors or
Initial
Stockholders of the Company or any of the members of the families
of any of
them, except as disclosed in the Registration Statement and the
Prospectus.
2.29 No Distribution of Offering Material. The Company has not
distributed and will not distribute prior to the Closing Date any
offering
material in connection with the offering and sale of the Units
other than any
Preliminary Prospectuses, the Prospectus, the Registration
Statement and other
materials, if any, permitted by the Act.
2.30 Title to Assets. Except as set forth in the Registration
Statement
and Prospectus, the Company has good and marketable title to all
properties and
assets described in the Registration Statement and Prospectus as
owned by it,
free and clear of any pledge, lien, security interest,
encumbrances, claim or
equitable interest, other than such as would not have a material
adverse effect
on the financial condition, earnings, operations, business or
business prospects
of the Company.
2.31 Taxes. The Company has timely filed all necessary federal,
state
and foreign income and franchise tax returns and has paid all taxes
shown
thereon as due, and there is no tax deficiency that has been or, to
the best of
the Company's knowledge, might be asserted against the Company that
might have a
material adverse effect on the financial condition, earnings,
operations,
business or business prospects of the Company, and all material tax
liabilities
are adequately provided for on the books of the Company.
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 its
best 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.
10
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. The Company will use its best
efforts to maintain the registration of the Units, Common Stock and
Warrants
under the provisions of the Exchange Act for a period of five years
from the
Effective Date, or until the Company is required to be liquidated,
if earlier
or, in the case of the Warrants, until the Warrants expire and are
no longer
exercisable. The Company will not deregister the Units under the
Exchange Act
without the prior written consent of EBC.
3.3 Blue Sky Filings. The Company will use its best efforts, in
cooperation with the Representative, at or prior to the time the
Registration
Statement becomes effective, to qualify the Securities for offering
and sale
under the securities laws of such jurisdictions as the
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 its best
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 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 use commercially
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
Company's
Form 10-Q quarterly report and the mailing of quarterly financial
information to
stockholders.
3.7
Affiliated Transactions.
11
3.7.1 Business Combinations. The Company will no
