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EXHIBIT 1.1
NAVITAS INTERNATIONAL CORPORATION
(a Delaware corporation)
20,000,000 Units
UNDERWRITING AGREEMENT
Dated: o, 2006
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NAVITAS INTERNATIONAL CORPORATION
(a Delaware corporation)
20,000,000 Units
UNDERWRITING AGREEMENT
o, 2006
FTN Midwest Securities Corp.
as Representative of
the several Underwriters
350 Madison Avenue, 20th Floor
New York, New York
10017
Ladies and Gentlemen:
Navitas International Corporation, a Delaware corporation (the
"Company"),
confirms its agreement with FTN Midwest Securities Corp. ("FTN")
and each of the
other Underwriters named in Schedule A hereto (collectively, the
"Underwriters",
which term shall also include any underwriter substituted as
hereinafter
provided in Section 10 hereof), for whom FTN is acting as
representative (in
such capacity, the "Representative"), with respect to the issue and
sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly,
of the respective numbers of units of the Company (the "Units", and
the Units to
be purchased by the Underwriters pursuant hereto are referred to as
the "Initial
Units") set forth in such Schedule A, and with respect to the grant
by the
Company to the Underwriters, acting severally and not jointly, of
the option
described in Section 2(b) hereof to purchase all or any part of
3,000,000
additional Units (the "Option Units") to cover over-allotments, if
any. Each
Unit consists of one share of the Company's common stock, par value
$.0001 per
share (the "Common Stock"), and two warrants (each, a "Warrant").
Each Warrant
entitles its holder to exercise it to purchase one share of Common
Stock for an
exercise price of $5.00 during the period commencing on the later
of the
consummation by the Company of its Business Combination (as defined
below) or
one year from the effective date (the "Effective Date") of the
Registration
Statement (as defined below) and terminating on the fourth
anniversary of the
Effective Date. "Business Combination" means any merger, capital
stock exchange,
asset acquisition, stock purchase or other similar business
combination
consummated by the Company with an operating business, as described
in the
Registration Statement. 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 collectively referred to as the
"Public
Securities". The Public Securities and the Underwriters' Securities
(as defined
in Section 2(c) hereof) are hereinafter collectively referred to as
the
"Securities". The shares of Common Stock and the Warrants included
in the
Initial Units will not be separately transferable until the earlier
to occur of
(i) the expiration of the option described in Section 2(b) hereof
to purchase
Option Units or (ii) 20 days after the exercise in full or in part
by the
Underwriters of the option described in Section 2(b) hereof to
purchase Option
Units, but in no event will the Representative engage in separate
trading until
the Company has (x) prepared an audited balance sheet reflecting
the Company's
receipt of the gross proceeds of the offering and (y) filed a Form
8-K that
includes such audited balance sheet.
The
Company has entered into a warrant agreement with respect to
the
Warrants and the Underwriters' Warrants (as defined in Section
2(c)) with
Continental Stock Trust & Transfer Company on
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o, 2006 (the "Warrant Agreement"). The Company may call the
warrants at any time
after the warrants are exercisable, for a redemption price of $.01
per Warrant,
at any time if notice of not less than 30 days is given and the
last sale price
of the Common Stock has been at least $8.50 for any 20 trading days
within a 30
trading day period ending on the third business prior to the day on
which notice
is given. The Company has caused its initial stockholders who own
shares of
Common Stock immediately prior to the consummation of the offering
pursuant to
this Agreement (the "Initial Stockholders") to enter into an escrow
agreement
(the "Escrow Agreement") with Continental Stock Transfer &
Trust Company (the
"Escrow Agreement") on o, 2006, pursuant to which the shares of
Common Stock
owned by the Initial Stockholders immediately prior to the
consummation of the
offering pursuant to this Agreement will be held in escrow by the
Escrow Agent
until the earlier of (x) the liquidation of the Company and (y) the
consummation
of the Business Combination and thereafter released according to a
graduated
schedule as set forth in the Escrow Agreement. The Company has
entered into an
Investment Management Trust Agreement (the "Trust Agreement") with
Continental
Stock Transfer & Trust Company, on the date hereof, pursuant to
which
$114,000,000 (including deferred underwriting discounts and
commissions equal to
$4,800,000) of the proceeds received by the Company for the Initial
Units (or
$131,460,000 (including deferred underwriting discounts and
commissions equal to
$5,200,000) if the Underwriters' over-allotment option is exercised
in full
pursuant to Section 2(b) of this Agreement) will be deposited in a
trust fund
(the "Trust Fund") for the benefit of holders of any of the Units,
shares of
Common Stock or Warrants offered to the public pursuant to this
Agreement.
The
Company understands that the Underwriters propose to make a
public
offering of the Public Securities as soon as the Representative
deems advisable
after this Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on Form S-1 (File No.
333-130697),
including the related preliminary prospectus or prospectuses,
covering the
registration of the Securities under the Securities Act of 1933, as
amended (the
"Securities Act"). Promptly after execution and delivery of this
Agreement, the
Company will prepare and file a prospectus in accordance with the
provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the
Securities Act (the "Securities Act Regulations") and paragraph (b)
of Rule 424
("Rule 424(b)") of the Securities Act Regulations. The information
included in
such prospectus that was omitted from such registration statement
at the time it
became effective but that is deemed to be part of such registration
statement at
the time it became effective pursuant to paragraph (b) of Rule 430A
is referred
to as "Rule 430A Information." Each prospectus used before such
registration
statement became effective, and any prospectus that omitted the
Rule 430A
Information, that was used after such effectiveness and prior to
the execution
and delivery of this Agreement, is herein called a "preliminary
prospectus."
Such registration statement, including the amendments thereto, the
exhibits and
any schedules thereto, at the time it became effective, and
including the Rule
430A Information, is herein called the "Registration Statement."
Any
registration statement filed pursuant to Rule 462(b) of the
Securities Act
Regulations is herein referred to as the "Rule 462(b) Registration
Statement,"
and after such filing the term "Registration Statement" shall
include the Rule
462(b) Registration Statement. The final prospectus in the form
first furnished
to the Underwriters for use in connection with the offering of the
Securities is
herein called the "Prospectus." For purposes of this Agreement, all
references
to the Registration Statement, any preliminary prospectus, the
Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to
include the
copy filed with the Commission pursuant to its Electronic Data
Gathering,
Analysis and Retrieval system ("EDGAR").
SECTION 1. Representations and Warranties.
(a)
Representations and Warranties by the Company. The Company
represents
and warrants to each Underwriter as of the date hereof, as of the
Applicable
Time referred to in subsection (i) of this
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Section 1(a), as of the Closing Time referred to in Section 2(d)
hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees
with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement
and any
post-effective amendment thereto has become effective under the
Securities
Act
and no stop order suspending the effectiveness of the
Registration
Statement, any Rule 462(b) Registration Statement or any
post-effective
amendment thereto has been issued under the Securities Act and
no
proceedings for that purpose have been instituted or are pending
or, to the
knowledge of the Company, threatened by the Commission or any
state
regulatory authority, and any request on the part of the Commission
for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b)
Registration Statement and any post-effective amendments thereto
became
effective and at the Closing Time (and, if any Option Units are
purchased,
at
the Date of Delivery), the Registration Statement, the Rule
462(b)
Registration Statement and any amendments and supplements thereto
complied
and
will comply in all material respects with the requirements of
the
Securities Act and the Securities Act Regulations and did not and
will not
contain an untrue statement of a material fact or omit to state a
material
fact
required to be stated therein or necessary to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading. Neither the Prospectus nor any amendments or
supplements
thereto, at the time the Prospectus or any such amendment or
supplement was
issued and at the Closing Time (and, if any Option Units are
purchased, at
the
Date of Delivery), included or will include an untrue statement of
a
material fact or omitted or will omit to state a material fact
necessary in
order to make the statements therein, in the light of the
circumstances
under which they were made, not misleading. The representations
and
warranties in this subsection shall not apply to statements in or
omissions
from
the Registration Statement (or any amendment thereto), the
Statutory
Prospectus (as defined below) at the Applicable Time (as defined
below) or
the
Prospectus (or any amendment or supplement thereto) made in
reliance
upon
and in conformity with written information furnished to the Company
by
any
Underwriter through FTN expressly for use therein.
As of the Applicable Time (as defined below) , any Issuer Free
Writing
Prospectus(es) (as defined below) and the Statutory Prospectus (as
defined
below) as of the Applicable Time (collectively, the "General
Disclosure
Package"), did not include any untrue statement of a material fact
or omit
to
state any material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading. As used in this subsection and elsewhere in this
Agreement, (a)
"Applicable Time" means [_____] [a/p]m (Eastern time) on
[_____________],
2006
or such other time as agreed by the Company and FTN and (b)
"Issuer
Free
Writing Prospectus" means any "issuer free writing prospectus,"
as
defined in Rule 433 under the Securities Act, relating to the
Securities
that
(i) is required to be filed with the Commission by the Company,
(ii)
is a
"road show that is a written communication" within the meaning of
Rule
433(d)(8)(i) whether or not required to be filed with the
Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it
contains a description of the Securities or of the offering that
does not
reflect the final terms, in each case in the form filed or required
to be
filed with the Commission or, if not required to be filed, in the
form
required to be retained in the Company's records pursuant to Rule
433(g)
and
(c) "Statutory Prospectus" as of any time means the prospectus
relating
to
the Securities that is included in the Registration Statement
immediately prior to that time (including any document incorporated
by
reference therein).
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Each preliminary prospectus and the prospectus filed as part of
the
Registration Statement as originally filed or as part of any
amendment
thereto complied when so filed in all material respects with the
Securities
Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was
identical to the electronically transmitted copies thereof filed
with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation
S-T.
(ii) Prior Securities Transaction. No securities of the Company
have
been
sold by the Company or by or on behalf of, or for the benefit of,
any
person or persons controlling, controlled by, or under common
control with
the
Company since the formation of the Company, except as disclosed in
the
Registration Statement.
(iii) Independent Accountants. The accountants who certified
the
financial statements and supporting schedules included in the
Registration
Statement are independent public accountants as required by the
Securities
Act
and the Securities Act Regulations.
(iv) Regulations. The disclosures in the Registration Statement
and
the
Prospectus 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.
(v) Financial Statements. The financial statements included in
the
Registration Statement, the General Disclosure Package and the
Prospectus,
together with the related schedules and notes, present fairly the
financial
position of the Company at the dates indicated and the statement
of
operations, stockholders' equity and cash flows of the Company for
the
periods specified; such financial statements have been prepared
in
conformity with generally accepted accounting principles
("GAAP")
applied on a consistent basis throughout the periods involved.
The
supporting schedules included in the Registration Statement present
fairly
in
accordance with GAAP the information required to be stated therein.
The
selected financial data and the summary financial information
included in
the
Prospectus present fairly the information shown therein and have
been
compiled on a basis consistent with that of the audited
financial
statements included in the Registration Statement.
(vi) No Material Adverse Change in Business. Since the
respective
dates as of which information is given in the Registration
Statement, the
General Disclosure Package and the Prospectus, except as otherwise
stated
therein, (A) there has been no material adverse change in the
condition,
financial or otherwise, or in the earnings, business affairs or
business
prospects of the Company, whether or not arising in the ordinary
course of
business (a "Material Adverse Effect"), (B) there have been no
transactions
entered into by the Company, other than those in the ordinary
course of
business, which are material with respect to the Company, (C) there
has
been
no dividend or distribution of any kind declared, paid or made by
the
Company on any class of its capital stock and the Company has not
incurred
any
liability or obligation, direct or contingent, for borrowed money,
and
(D)
no member of the Company's management has resigned from any
position
with
the Company.
(vii) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under
the
laws of the State of Delaware and has corporate power and authority
to
own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations
under this Agreement, the Warrant Agreement, the Underwriters'
Purchase
Option (as defined herein), the Trust Agreement and the Escrow
Agreement;
and
the Company is duly qualified as a foreign corporation to
transact
business and is in good standing in each other jurisdiction in
which such
4
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qualification is required, whether by reason of the ownership or
leasing of
property or the conduct of business, except where the failure so to
qualify
or
to be in good standing would not result in a Material Adverse
Effect.
(viii) Subsidiaries. The Company has no subsidiaries.
(ix) Capitalization. The authorized, issued and outstanding
capital
stock of the Company is as set forth in the Prospectus in the
section
entitled "Capitalization" (except for subsequent issuances, if
any,
pursuant to this Agreement, pursuant to reservations, agreements
or
employee benefit plans referred to in the Prospectus, or pursuant
to the
exercise of the Warrants or the Underwriters' Purchase Option). The
shares
of
issued and outstanding capital stock of the Company have been
duly
authorized and validly issued and are fully paid and
non-assessable; and
none
of the outstanding shares of capital stock of the Company was
issued
in
violation of preemptive or other similar rights of any
securityholder of
the
Company.
(x) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) Validity of Agreements. The Warrant Agreement, the Trust
Agreement, the Insider Letters, the Underwriters' Purchase Option
and the
Escrow Agreement have each been duly and validly authorized by the
Company
and,
assuming due authorization, execution and delivery of the other
parties thereto, 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
equitable
defenses and to the discretion of the court before which any
proceeding
therefor may be brought.
(xii) Authorization and Description of Securities. The Securities
have
been
duly authorized for issuance and sale to the Underwriters pursuant
to
this
Agreement and, when issued and delivered by the Company pursuant
to
this
Agreement against payment of the consideration set forth herein,
will
be
validly issued and fully paid and non-assessable; the Securities
conform
to
all statements relating thereto contained in the Prospectus and
such
description conforms to the rights set forth in the instruments
defining
the
same; no holder of the Securities is or will be subject to
personal
liability by reason of being such a holder; and the issuance of
the
Securities is not subject to preemptive or other similar rights of
any
securityholder of the Company.
(xiii) Absence of Defaults and Conflicts. The Company is not in
violation of its Amended and Restated Certificate of Incorporation
(the
"Charter") or its Amended and Restated Bylaws (the "By-laws"), or
in
default in the performance or observance of any obligation,
agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed
of
trust, loan or credit agreement, note, lease or other agreement
or
instrument to which the Company is a party or by which it may be
bound, or
to
which any of the property or assets of the Company is subject
(collectively, "Agreements and Instruments"); and the execution,
delivery
and
performance of this Agreement, the Warrant Agreement, the
Underwriters'
Purchase Option, the Trust Agreement and the Escrow Agreement and
the
consummation of the transactions contemplated herein, therein and
in the
Registration Statement and the Prospectus (including the issuance
and sale
of
the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the section
entitled "Use
of
Proceeds") and compliance by the Company with its obligations
hereunder
and
thereunder have been duly authorized by all
5
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necessary corporate action and do not and will not, whether with or
without
the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below)
under, or result in the creation or imposition of any lien, charge
or
encumbrance upon any property or assets of the Company pursuant to,
the
Agreements and Instruments, nor will such action result in any
violation of
the
provisions of the Charter or By-laws or any applicable law,
statute,
rule, regulation, judgment, order, writ or decree of any
government,
government instrumentality or court, domestic or foreign,
having
jurisdiction over the Company or any of its assets, properties
or
operations. As used herein, a "Repayment Event" means any event
or
condition that gives the holder of any note, debenture or other
evidence of
indebtedness (or any person acting on such holder's behalf) the
right to
require the repurchase, redemption or repayment of all or a portion
of such
indebtedness by the Company.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding,
inquiry or investigation before or brought by any court or
governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of
the
Company, threatened, against or affecting the Company, that is
required
to
be disclosed in the Registration Statement and the Prospectus
(other
than
as disclosed therein), or which might result in a Material
Adverse
Effect, or that might materially and adversely affect the
properties or
assets thereof or the consummation of the transactions contemplated
in this
Agreement or the performance by the Company of its obligations
hereunder;
the
aggregate of all pending legal or governmental proceedings to which
the
Company is a party or of which any of their respective property or
assets
is
the subject which are not described in the Registration Statement
and
the
Prospectus or the Questionnaires (as defined herein), including
ordinary routine litigation incidental to the business, could not
result in
a
Material Adverse Effect.
(xv) Accuracy of Exhibits and Disclosure of Agreements. There are
no
contracts or documents which are of a character required to be
described in
the
Registration Statement or the Prospectus or to be filed as
exhibits
thereto which have not been so described and filed as required.
The
agreements and documents described in the Registration Statement
and the
Prospectus conform to the descriptions thereof contained
therein.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency
is
necessary or required for the performance by the Company of its
obligations under this Agreement, the Underwriters' Purchase
Option, the
Warrant Agreement, the Trust Agreement and the Escrow Agreement,
in
connection with the offering, issuance or sale of the Securities
hereunder
or
the consummation of the transactions contemplated hereby and
thereby,
except such as have been already obtained or as may be required
under the
Securities Act or the Securities Act Regulations or state
securities laws.
(xvii) Absence of Stabilization or Manipulation. Neither the
Company
nor
any affiliate of the Company has taken, nor will the Company or
any
affiliate take, directly or indirectly, any action that is designed
to or
which has constituted or which would be expected to cause or result
in
stabilization or manipulation of the price of any security of the
Company
to
facilitate the sale or resale of the Securities.
(xviii) Possession of Licenses and Permits. The Company possesses
such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal,
state, local or foreign regulatory agencies or bodies necessary to
conduct
the
business now operated by them, except where the failure so to
possess
would not, singly or in the aggregate, result in a Material Adverse
Effect;
the
Company is in compliance with
6
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the
terms and conditions of all such Governmental Licenses, except
where
the
failure so to comply would not, singly or in the aggregate, result
in a
Material Adverse Effect; all of the Governmental Licenses are valid
and in
full
force and effect, except when the invalidity of such
Governmental
Licenses or the failure of such Governmental Licenses to be in full
force
and
effect would not, singly or in the aggregate, result in a
Material
Adverse Effect; and the Company has not received any notice of
proceedings
relating to the revocation or modification of any such
Governmental
Licenses which, singly or in the aggregate, if the subject of
an
unfavorable decision, ruling or finding, would result in a Material
Adverse
Effect.
(xix) Title to Property. The Company has good and marketable title
to
all
properties and assets owned by it material to its business, in
each
case, free and clear of all mortgages, pledges, liens, security
interests,
claims, restrictions or encumbrances of any kind except such as (a)
are
described in the Prospectus or (b) do not, singly or in the
aggregate,
materially affect the value of such property and do not
materially
interfere with the use made and proposed to be made thereof by the
Company;
and
all of the leases and subleases material to the business of the
Company
as
now conducted or proposed to be conducted, and under which the
Company
holds properties described in the Prospectus, are in full force and
effect,
and
the Company has not received any notice of any material claim of
any
sort
that has been asserted by anyone adverse to the rights of the
Company
under any of the leases or subleases mentioned above, or affecting
or
questioning the rights of the Company to the continued possession
of the
leased or subleased premises under any such lease or sublease.
(xx) Registration Rights. Except as set forth in the
Registration
Statement and the Prospectus, there are no persons with
registration rights
or
other similar rights to have any securities registered pursuant to
the
Registration Statement or to otherwise be registered by the Company
under
the
Securities Act.
(xxi) Investment Company Act. The Company is not required, and
upon
the
issuance and sale of the Securities as herein contemplated and
the
application of the net proceeds therefrom as described in the
Registration
Statement and the Prospectus will not be required, to register as
an
"investment company" under the Investment Company Act of 1940, as
amended
(the
"1940 Act").
(xxii) 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) (the
"Insider
Letters"), pursuant to which each of the Initial Stockholders of
the
Company agrees to certain matters with respect to the Company.
(xxiii) Finder's Fees. Except as set forth in the Registration
Statement and the Prospectus, there are no claims, payments,
arrangements,
agreements or understandings relating to the payment of a
finder's,
consulting or origination fee by the Company 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. (the "NASD").
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<PAGE>
(xxiv) 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 the
Underwriters.
(xxv) Use of Proceeds. None of the net proceeds of this 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.
(xxvi) 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.
(xxvii) D&O Questionnaires. To the best of the Company's
knowledge,
all
information contained in the director and officer questionnaires
and
NASD
supplemental questionnaires (the "Questionnaires") completed by
each
of
the Initial Stockholders and provided to the Underwriter as an
exhibit
to
his or her Insider Letter is true and correct and the Company has
not
become aware of any information that would cause the information
disclosed
in
the questionnaires completed by each Initial Stockholder to
become
inaccurate and incorrect.
(xxviii) Foreign Corrupt Practices Act. Neither the Company nor
any
Initial Stockholder 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.
(xxix) Covenants Not to Compete. No Initial Stockholder,
employee,
officer or director of the Company is subject to any
non-competition
agreement or non-solicitation agreement with any employer or prior
employer
which could materially affect his or her ability to be an
Initial
Stockholder, employee, officer and/or director of the Company.
(xxx) 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.
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(xxxi) Code of Ethics. The Company has (or prior to the Closing
Time
will
have) adopted a code of ethics that applies to its directors,
officers
and
employees, and has filed the code of ethics as an exhibit to
the
Registration Statement.
(xxxii) Free Writing Prospectuses; Improper Offering Materials.
The
Company has not prepared or used a free writing prospectus, as such
term is
defined in Rule 405 of the Securities Act Regulations (a "Free
Writing
Prospectus"), in connection with the offering and sale of the
Units. The
Company has satisfied the conditions in Rule 433 to avoid a
requirement to
file
with the Commission any electronic road show. The Company has
not
distributed and will not distribute any prospectus or other
offering
material (including content on the Company's website that may be
deemed to
be a
prospectus or other offering material) in connection with the
offering
and
sale of the Units other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Securities Act to
be
distributed by the Company.
(b)
Officer's Certificates. Any certificate signed by any officer of
the
Company delivered to the Representative or to counsel for the
Underwriters shall
be deemed a representation and warranty by the Company to each
Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a)
Initial Units. On the basis of the representations and
warranties
herein contained and subject to the terms and conditions herein set
forth, the
Company agrees to sell to each Underwriter, severally and not
jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at
the price per Unit set forth in Schedule B, the number of Initial
Units set
forth in Schedule A opposite the name of such Underwriter, plus any
additional
number of Initial Units which such Underwriter may become obligated
to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Option Units. In addition, on the basis of the representations
and
warranties herein contained and subject to the terms and conditions
herein set
forth, the Company hereby grants an option to the Underwriters,
severally and
not jointly, to purchase up to an additional 3,000,000 of Option
Units at the
price per unit set forth in Schedule B, less an amount per unit
equal to any
dividends or distributions declared by the Company and payable on
the Initial
Units but not payable on the Option Units. The option hereby
granted will expire
45 days after the date hereof and may be exercised in whole or in
part from time
to time only for the purpose of covering over-allotments which may
be made in
connection with the offering and distribution of the Initial Units
upon notice
by the Representative to the Company setting forth the number of
Option Units as
to which the several Underwriters are then exercising the option
and the time
and date of payment and delivery for such Option Units. Any such
time and date
of delivery (a "Date of Delivery") shall be determined by the
Representative,
but shall not be later than five full business days after the
exercise of such
option, nor in any event prior to the Closing Time, as hereinafter
defined. If
the option is exercised as to all or any portion of the Option
Units, each of
the Underwriters, acting severally and not jointly, will purchase
that
proportion of the total number of Option Units then being purchased
which the
number of Initial Units set forth in Schedule A opposite the name
of such
Underwriter bears to the total number of Initial Units, subject in
each case to
such adjustments as the Representative in its discretion shall make
to eliminate
any sales or purchases of fractional shares.
(c)
Underwriters' Purchase Option. The Company hereby agrees to issue
and
sell to the Representative (and/or its designees) on the Effective
Date an
option (the "Underwriters' Purchase Option") for the purchase of an
aggregate of
1,000,000 Units (the "Underwriters' Units") for an aggregate
purchase price of
$100.00. Each of the Underwriters' Units is identical to the
Initial Units
except that the Warrants included in the Representative's Units
(the
"Underwriters' Warrants") have an exercise price of $6.25 per share
(125% of the
exercise price of the Warrants included in the Units sold to the
public). The
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Underwriters' Purchase Option shall be exercisable, in whole or in
part,
commencing on the later of (i) one year from the Effective Date and
(ii) the
consummation of a Business Combination and expiring on the
four-year anniversary
of the Effective Date at an initial exercise price per
Underwriters' Unit of
$7.50 per Unit (125% of the initial public offering price of a Unit
sold to the
public). The Underwriters' Purchase Option, the Underwriters'
Units, the
Underwriters' Warrants and the shares of Common Stock issuable upon
exercise of
the Underwriters' Warrants are hereinafter referred to collectively
as the
"Underwriters' Securities." Delivery and payment for the
Underwriters' Purchase
Option shall be made at the Closing Time. The Company shall deliver
to the
Underwriters, upon payment therefor, certificates (if any) for the
Underwriters'
Purchase Option in the name or names and in such authorized
denominations as the
Representative may request.
(d)
Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Units shall be made by the
Representative and the
Company, at 9:00 A.M. (Eastern time) at the offices of counsel for
the
Representative or at such other place as shall be agreed upon, on
the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day)
business day after the date hereof (unless postponed in accordance
with the
provisions of Section 10), or such other time not later than ten
business days
after such date as shall be agreed upon by the Representative and
the Company
(such time and date of payment and delivery being herein called
"Closing Time").
Payment for the Initial Units shall be made at the Closing Time 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: $114,000,000 (or $5.70 per Initial Unit), including
deferred
underwriting discounts and commissions equal to $4,800,000, of the
proceeds
received by the Company for the Initial Units (or $131,460,000
(including
deferred underwriting discounts and commissions equal to
$5,520,000) if the
Underwriters' over-allotment option is exercised in full pursuant
to Section
2(b) of this Agreement) shall be deposited in the Trust Fund
established by the
Company for the benefit of the public stockholders as described in
the
Registration Statement pursuant to the terms of the Trust Agreement
and the
remaining proceeds (less commissions, expense allowances and actual
expense
payments or other fees) shall be paid to the order of the Company
upon delivery
to the Representative of certificates (in form and substance
satisfactory to the
Underwriters) representing the Initial Units (or through the
facilities of the
Depository Trust Company (the "DTC") for the account of the
Underwriters). The
Initial 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 Time. The Company will permit
the
Representative to examine and package the Initial Units for
delivery, at least
one (1) business day prior to the Closing Date. The Company shall
not be
obligated to sell or deliver the Initial Units except upon tender
of payment by
the Representative for all the Initial Units.
In
addition, in the event that any or all of the Option Units are
purchased
by the Underwriters, payment of the purchase price for, and
delivery of
certificates for, such Option Units shall be made at the
above-mentioned
offices, or at such other place as shall be agreed upon by the
Representative
and the Company, on each Date of Delivery as specified in the
notice from the
Representative to the Company.
Payment shall be made to the Company by wire transfer of Federal
(same day)
funds or by certified or bank cashier's check(s) in New York
Clearing House
funds to a bank account designated by the Company, against delivery
to the
Representative for the respective accounts of the Underwriters of
certificates
for the Units to be purchased by them. It is understood that each
Underwriter
has authorized the Representative, for its account, to accept
delivery of,
receipt for, and make payment of the purchase price for, the
Initial Units and
the Option Units, if any, which it has agreed to purchase. FTN,
individually and
not as representative of the Underwriters, may (but shall not be
obligated to)
make payment of the purchase price for the Initial Units or the
Option Units, if
any, to be purchased by any Underwriter whose funds have not been
received by
the Closing Time or the relevant Date of Delivery, as the case may
be, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
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<PAGE>
(e)
Denominations; Registration. Certificates for the Securities shall
be
in such denominations and registered in such names as the
Representative may
request in writing at least two full business days prior to the
Closing Time or
the relevant Date of Delivery, as the case may be. The certificates
for the
Securities will be made available for examination and packaging by
the
Representative in The City of New York not later than 10:00 A.M.
(Eastern time)
on the business day prior to the Closing Time or the relevant Date
of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each
Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests.
The
Company, subject to Section 3(b), will comply with the requirements
of Rule 430A
and will notify the Representative immediately, and confirm the
notice in
writing, (i) when any post-effective amendment to the Registration
Statement
shall become effective, or any supplement to the Prospectus or any
amended
Prospectus shall have been filed, (ii) of the receipt of any
comments from the
Commission, (iii) of any request by the Commission for any
amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for
additional information, and (iv) of the issuance by the Commission
of any stop
order suspending the effectiveness of the Registration Statement or
of any order
preventing or suspending the use of any preliminary prospectus, or
of the
suspension of the qualification of the Securities for offering or
sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of
such purposes. The Company will promptly effect the filings
necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to
ascertain
promptly whether the form of prospectus transmitted for filing
under Rule 424(b)
was received for filing by the Commission and, in the event that it
was not, it
will promptly file such prospectus. The Company will make every
reasonable
effort to prevent the issuance of any stop order and, if any stop
order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b)
Filing of Amendments. The Company will give the Representative
notice
of its intention to file or prepare any amendment to the
Registration Statement
(including any filing under Rule 462(b)) or any amendment,
supplement or
revision to either the prospectus included in the Registration
Statement at the
time it became effective or to the Prospectus and will furnish
the
Representative with copies of any s
