UNDERWRITING AGREEMENT
BETWEEN
INTERAMERICAN ACQUISITION GROUP INC.
AND
RODMAN & RENSHAW, LLC
Dated:
, 2006
-------------
INTERAMERICAN ACQUISITION GROUP INC.
UNDERWRITING AGREEMENT
, 2006
---------------
Rodman & Renshaw, LLC
1270 Avenue of the Americas, 16th Floor
New York, New York 10020
Dear Sirs:
The undersigned, InterAmerican Acquisition Group Inc., 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 7,500,000 units ("FIRM
UNITS") of the
Company at a purchase price (net of discounts and commissions, but
before
deduction of the non-accountable expense allowance referenced in
Section 3.13.2
hereof) of $5.64 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 $5.64 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 ("WARRANTS"). 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 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 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 1,125,000 units from the Company ("OVER-ALLOTMENT
OPTION"). Such
additional 1,125,000 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
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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, 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 in 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: $5.64 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. Contingent Portion of Underwriters' Discount. The
Representative, on
behalf of itself and the other Underwriters, agrees that 4% of the
gross
proceeds from the sale of the Firm Units (1,800,000) and the Option
Units (a
total amount of $2,070,000 if the over-allotment option is
exercised in full)
(the "Contingent Discount") will be deposited in and held in the
Trust Fund and
payable to the Underwriters, along with any interest accrued
thereon (net of
taxes payable), in respect of any IPO Shares (defined in Section
8.6 hereof)
which are not redeemed pursuant to Section 8.6 hereof, upon the
consummation of
a Business Combination. The Representative, on behalf of itself and
the other
Underwriters, agrees that in the event that the Company is unable
to consummate
a Business Combination and Continental Stock Transfer & Trust
Company, the
trustee of the Trust Fund, commences liquidation of the Trust Fund
as provided
in the Trust Agreement, the Representative, on behalf of itself and
the other
Underwriters, agrees that (i) the several Underwriters shall
forfeit any rights
or claims to the Contingent Discount and any interest accrued
thereon (net of
taxes payable); and (ii) the Contingent Discount, together with the
all other
amounts on deposit in the Trust Fund, and any accrued interest
thereon (net of
taxes payable), shall be distributed on a pro-rata basis among the
holders of
the shares of Common Stock included in the Units sold in the
Offering along with
any interest accrued thereon.
1.4. Representative's Purchase Option.
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1.4.1. 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 375,000
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 five-year anniversary of the
Effective Date
at an initial exercise price per Representative's Unit of $7.50,
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 first year
after the Effective Date, as set forth in Section 3 of the
Representative's
Purchase Option.
1.4.2. 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 Representative, 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 of the Applicable Time and as of
the Closing
Date and as of the Option Closing Date, if any, 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. 333-125558), including
any related
preliminary prospectus (including, without limitation, the Sale
Preliminary
Prospectus (as hereinafter defined) ("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. The
prospectus subject to completion dated _, 2006 is hereinafter
referred
to as the "Sale Preliminary Prospectus". 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 through the Applicable Time), 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
5
Rule 424 of the Regulations), is hereinafter called the
"PROSPECTUS." The
Registration Statement has been declared effective by the
Commission on the date
hereof. "APPLICABLE TIME" means the time of sale with respect to
each applicable
investor at or prior to the Closing Date.
2.1.2. Pursuant to the Exchange Act. The Company has filed with the
Commission a Form 8-A (File Number 000-51510) 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 respective times the
Registration
Statement , Prospectus and any post-effective amendments thereto
become
effective and at all times subsequent thereto up to the Applicable
Time, Closing
Date and the Option Closing Date, if any, the Registration
Statement, the Sale
Preliminary Prospectus and the Prospectus will contain all material
statements
that are required to be stated therein in accordance with the Act
and the
Regulations, and will in all material respects conform to the
requirements of
the Act and the Regulations and neither the Registration Statement
nor any
Preliminary Prospectus or the Prospectus, nor any amendment or
supplement
thereto, on such dates, nor the Sale Preliminary Prospectus as of
the Applicable
Time, did 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 have
been corrected
in the Sale Preliminary Prospectus and 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, the Sale Preliminary Prospectus or Prospectus or any
amendment
thereof or supplement thereto.
2.3.2. Disclosure of Agreements. The agreements and documents
described
in the Registration Statement, the Sale Preliminary Prospectus 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, the Sale Preliminary Prospectus or the Prospectus
6
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 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, the Sale
Preliminary
Prospectus 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, (iii) no member of the Company's
management has
resigned from any position with the Company, and (iv) no event or
occurrence has
taken place which materially impairs or would likely materially
impair, with the
passage of time, the ability of the members of the Company's board
of directors
or management to act in their capacities with the Company as
described in the
Registration Statement sent, the Sale Preliminary Prospectus and
the Prospectus.
7
2.4.2. Recent Securities Transactions, Etc. Subsequent to the
respective dates as of which information is given in the
Registration Statement,
the Sale Preliminary Prospectus 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. Goldstein Golub Kessler LLP ("GGK"),
whose
report is filed with the Commission as part of the Registration
Statement are
independent accountants as required by the Act and the Regulations.
GGK 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.
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, the Sale Preliminary Prospectus and the
Prospectus. The
offers and sales of the outstanding Common
8
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.
2.9. Registration Rights of Third Parties. Except as set forth in
the Sale
Preliminary Prospectus and the Prospectus, no holders of any
securities of the
Company or any rights exercisable for or convertible or
exchangeable into
securities of the Company have the right to require the Company to
register any
such securities of the Company under the 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
9
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.
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 Sale Preliminary Prospectus and 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 Sale Preliminary Prospectus and 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
10
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 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 Company's
outstanding shares of Common Stock is or becomes an affiliate or
associated
person of an NASD member participating in the offering.
11
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 & 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 10.8 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
12
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.
2.21.3. Private Placement. The Company has entered into an
agreement
with InterAmerican Capital Partners II LLC ("ICPII"), an entity
wholly-owned by
certain of the Initial Stockholders, for the purchase of $900,000
of Warrants in
a private placement to be completed on the 45th day after the date
on which
separate trading of the components of the Units commences (the
"Warrant Purchase
Agreement"). The proceeds will be deposited into the trust account
pursuant to
the terms of the Trust Agreement.
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 10.7 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 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.
13
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 or is acquired in a transaction approved by the
requisite number
of stockholders, 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 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.
14
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.
3.7.1. Busin
