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EXHIBIT 1.1
UNDERWRITING AGREEMENT
BETWEEN
ASIA AUTOMOTIVE ACQUISITION CORPORATION
AND
RODMAN & RENSHAW, LLC
Dated: _____________, 2006
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ASIA AUTOMOTIVE ACQUISITION CORPORATION
UNDERWRITING
AGREEMENT
_______________, 2006
Rodman & Renshaw, LLC
1270 Avenue of the America
16th Floor
New York, New York 10020
Dear Sirs:
The undersigned, Asia Automotive Acquisition Corporation, a
Delaware corporation
("COMPANY"), hereby confirms its agreement with Rodman &
Renshaw, LLC (being
referred to herein variously as "YOU," "RODMAN" or the
"REPRESENTATIVE") and
with the other underwriters named on Schedule I hereto for which
Rodman 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
4,375,000 units ("FIRM Units") of the Company at a purchase price
(net of
discounts and commissions) of $7.44 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 $7.44 per Firm Unit. The Firm Units are to be
offered
initially to the public ("OFFERING") at the offering price of $8.00
per
Firm
Unit. Each Firm Unit consists of one share of the Company's
common
stock, par value $.0001 per share ("COMMON STOCK"), and one
warrant
("WARRANTS"). The shares of Common Stock and the Warrants included
in the
Firm
Units will not be separately transferable until 60 trading days
after
the
effective date ("EFFECTIVE DATE") of the Registration Statement
(as
defined in Section 2.1.1 hereof) unless Rodman informs the Company
of its
decision to allow earlier separate trading, but in no event will
Rodman
allow 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 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
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of
its "BUSINESS COMBINATION" or one year from the Effective Date of
the
Registration Statement and terminating on the five-year anniversary
of the
Effective Date. "Business Combination" shall mean any merger,
capital stock
exchange, asset or
stock 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 third
business day
following the Effective Date (or the fourth business day following
the
Effective Date, if the Registration Statement is declared effective
after
4:30
p.m.) or at such earlier time as shall be agreed upon by the
Representative and the Company at the offices of the Representative
or at
such
other place as shall be agreed upon by the Representative and
the
Company. The hour and date of delivery and 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: $_______ 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
upon
delivery to you (or through the facilities of the Depository Trust
Company
("DTC") of certificates (in form and substance satisfactory to
the
Underwriters) representing the Firm Units) 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 any of
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 656,250 units from the
Company
("OVER-ALLOTMENT OPTION"). Such additional 656,250 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
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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, 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. If
such
delivery and payment for the Option Units does not occur on the
Closing Date, the date and time of the Closing for such Option
Units will
be
as set forth on the notice (hereinafter the "OPTION CLOSING DATE").
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:
$7.44 per Option Unit 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 upon delivery to you (or through the facilities of DTC)
of
certificates (in form and substance satisfactory to the
Underwriters)
representing the Option Units 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.
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 350,000 units ("REPRESENTATIVE'S UNITS") for an
aggregate
purchase price of $100.00. Each of the Representative's Units is
identical
to
the Firm Units, except that the Warrants included in the
Representative's Units ("REPRESENTATIVE'S WARRANTS") have an
exercise price
of
$6.65 (133% of the exercise price of the Warrants included in the
Units
sold
to the public). The Representative's Purchase Option shall be
exercisable, in whole or in part, commencing on the later of
the
consummation of a Business Combination or one year from the
Effective Date
and
expiring on the four-year anniversary of the Effective Date at
an
initial exercise price per Representative's Unit of $10.00, which
is equal
to
one hundred and twenty-five percent (125%) of the initial
public
offering price of a Unit. The Representative's Purchase Option,
the
Representative's Units, the Warrants included in the
Representatives Units
(the
"REPRESENTATIVE 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
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first year after the Effective Date, as set forth in Section 3 of
the
Representative's Purchase Option. In addition, pursuant to Rule
2710(g)(1)
of
the NASD Conduct Rules, Rodman agrees that the Representative's
Units,
as
well as the Representative's Securities issued to Rodman and/or
its
designees pursuant to the Representative's Purchase Option shall
not be
sold
during the offering, or sold, transferred, assigned, pledged,
or
hypothecated, or be the subject of any hedging, short sale,
derivative,
put,
or call transaction that would result in the effective economic
disposition by Rodman and/or its designees for a period of 180
days
immediately following the Effective Date or commencement of sales
of the
offering, except as provided in subparagraph (g)(2) of Rule 2710 of
the
NASD
Conduct Rules.
1.3.2. Delivery and Payment. 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 Underwriters 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-o),
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 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 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.
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 will contain all material
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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 and 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
have
been
corrected in the Prospectus to 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.
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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 within the three years prior to the
date
hereof, 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 purpose as currently contemplated are correct in
all
material respects and do not omit to state a material fact
necessary to
make
the statements therein, in light of the circumstances in which
they
were
made, not misleading.
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 material 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 capital stock.
2.5. Independent Accountants. Rothstein, Kass and Co. PC ("RKC"),
whose
report is filed with the Commission as part of the Registration
Statement, are
independent accountants as required by the Act and the Regulations.
RKC 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; 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.
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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.
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 in all material respects 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 Warrant, 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 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.
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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 2.20 hereof), the Trust
Agreement, the
Services Agreement (as defined in Section 3.7.2 hereof) and the
Escrow Agreement
(as defined in Section 2.21.2 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 Representative's Purchase
Option, the Warrant
Agreement, the Trust Agreement, the Services Agreement and the
Escrow Agreement,
the consummation by the Company of the transactions herein and
therein
contemplated and the compliance by the Company with the terms
hereof and thereof
do not and will not, with or without the giving of notice or the
lapse of time
or both: (i) result in a breach of, or conflict with any of the
terms and
provisions of, or constitute a default under, or result in the
creation,
modification, termination or imposition of any lien, charge or
encumbrance upon
any property or assets of the Company pursuant to the terms of any
agreement or
instrument to which the Company is a party except pursuant to the
Trust
Agreement referred to in Section 2.22 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.
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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
requisite 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, the
Services 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 Company's stockholders immediately prior to the Offering
("INITIAL
STOCKHOLDERS") and provided to the Underwriters as an exhibit to
his or her
Insider Letter (as defined in Section 2.21.1) 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
property or the conduct of business requires such qualification,
except where
the failure to qualify would not have a material adverse effect on
the Company.
2.17. Transactions Affecting Disclosure to NASD.
2.17.1. 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
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<PAGE>
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").
2.17.2. 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
Rodman.
2.17.3. 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.
2.17.4. Insiders' NASD Affiliation. Based on questionnaires
distributed to such persons, 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 outstanding shares of Common Stock is
or
becomes an affiliate or associated person of an NASD member
participating
in
the offering.
2.18. 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.
2.19. Officers' Certificate. Any certificate signed by any duly
authorized officer of the Company, in connection with the Offering,
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.
2.20. Warrant Agreement. The Company has entered into a warrant
agreement with respect to the Warrants and the Representative's
Warrants with
Continental Stock Transfer &
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<PAGE>
Trust Company substantially in the form filed as an exhibit to the
Registration
Statement ("WARRANT AGREEMENT"), providing for, among other things,
the payment
of a warrant solicitation fee as contemplated by Section 3.9
hereof.
2.21. Agreements With Initial Stockholders.
2.21.1. 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) a form of
which is
annexed as Exhibit 10.1 to
the Registration Statement ("INSIDER LETTER"),
pursuant to which each of the Initial Stockholders of the Company
agree to
certain matters, including but not limited to, certain matters
described as
being agreed to by them under the "Proposed Business" Section of
the
Prospectus.
2.21.2. 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 10.4 to the Registration Statement,
whereby
the
Common Stock owned by each of 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 and receive any distributions
with
respect to 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
Rodman.
2.22. 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 10.5 to the
Registration
Statement.
2.23. 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.
2.24. Investments. 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 consist of, and no more than
45% of the
Company's net income after taxes is derived
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<PAGE>
from, securities other than "Government securities" (as defined in
Section
2(a)(16) of the Investment Company Act).
2.25. Subsidiaries. The Company does not own an interest in any
corporation, partnership, limited liability company, joint venture,
trust or
other business entity.
2.26. 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 and Warrants
under the
provisions of the Exchange Act and, the Company will not deregister
the
Units, Common Stock and Warrants under the Exchange Act without the
prior
written consent of Rodman.
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
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<PAGE>
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
when the Company becomes aware of such; (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
when the
Company becomes aware of such; (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 3.2.3 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 Company's Form 10-Q quarterly report and the mailing
of quarterly
financial information to stockholders.
3.7. Affiliated Transactions.
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<PAGE>
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. Office Space and Administrative Services. The Company
has
entered into an agreement ("SERVICES AGREEMENT") with Asia
Development
Capital LLC ("ADCLLC") substantially in the form annexed as Exhibit
10.__
to
the Registration Statement pursuant to which ADCLLC will make
available
to
the Company administrative, technology and secretarial services, as
well
as
the use of certain limited office space, in Birmingham, Michigan
for
$7,500 per month.
3.7.3. Affiliate Compensation. Except as set forth above in
this
Section 3.7, the Company shall not pay any Initial Stockholder or
any
of
their affiliates any fees or compensation from the Company, for
services
rendered to the Company prior to, or in connection with, the
consummation
of a
Business Combination; provided that the Initial Stockholders shall
be
entitled to reimbursement from the Company for their reasonable
out-of-pocket expenses incurred in connection with seeking and
consummating
a
Business Combination.
3.8. Secondary Market Trading and Standar
