EXHIBIT 10.1
12,500,000 Units
Churchill Ventures Ltd.
UNDERWRITING AGREEMENT
----------------------
New York, New York
February 28, 2007
Banc of America Securities LLC,
As
Representative of the Several Underwriters
40 W. 57th Street, 30th Floor
New York, New York 10019
Ladies and Gentlemen:
Churchill Ventures
Ltd., a Delaware corporation (the "Company"),
proposes to sell to
the several
underwriters
named on Schedule II
hereto for
which Banc of
America Securities LLC is acting as representative (in such
capacity, the
"Representative") an aggregate of 12,500,000 units (the
"Units"),
with each unit
consisting of one
share (the "Unit
Shares") of the
Company's
common stock,
$.001 par value
(the "Common Stock"), and one warrant (the
"Warrants") to
purchase Common
Stock (the "Firm
Units"). The Company also
proposes to sell at the Underwriters' option an aggregate of up to 1,250,000
additional units of
the Company (the "Option Units" and together with the
Firm
Units, the "Units") as
set forth below. The
terms of the Warrants are provided
for in the form of the Warrant Agreement (defined herein). The Units, the Unit
Shares, the Warrants
and the Common Stock underlying the Warrants (the "Warrant
Shares," and,
together with the Unit Shares, the "Shares") are herein
collectively called the "Securities."
The Unit Shares
and the Warrants included in the Units will not be
separately
transferable until
five business days
following the earlier of the
expiration or
termination
of the Underwriters' over-allotment option (as
described below) or
the exercise
in full of such
option, subject to (a) 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 such
audited balance
sheet with the Securities and Exchange Commission (the "Commission") on a Form
8-K or similar form by the Company which includes such balance
sheet and (b) the
Company issuing a
press release
announcing
when such separate trading will
begin. Each Warrant entitles its holder, upon exercise,
to purchase one
Warrant
Share for $6.00 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
(as hereinafter defined) under the Act (as
hereinafter defined)
and terminating on the four-year anniversary of the
Effective Date. As used herein, the term "Business Combination" (as described
more fully in the
Registration
Statement)
shall mean the
Company's initial
acquisition of one or more operating businesses through a merger,
capital stock
exchange, stock
purchase, asset acquisition or other similar business
combination in the communications, media or technology
industries.
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The Company and the Representative agree that up to 600,000 of the
Firm
Units to be purchased by the Representative (the "Directed Units") shall be
reserved for sale at the initial public offering price by the
Representative to
certain eligible
friends, directors or
officers of the Company (collectively,
the "DSP Participants"), as part of the distribution of the Units by the
Representative (the
"Directed Unit Program") subject to the terms of this
agreement, the applicable rules, regulations and interpretations of
the National
Association of Securities Dealers, Inc. (the "NASD") and all other
applicable
laws, rules and regulations. Banc of America Investment
Services, Inc. or its
designee, Legend
Merchant Group (collectively, "BAI") shall be selected to
process the sales to the DSP Participants under the Directed Unit Program.
To
the extent that such Directed Units are not orally confirmed for
purchase by the
DSP Participants by 8:00 A.M. New York City time on the first
business day after
the date of this Agreement, such Directed Units may be offered
to the public as
set forth in the
Prospectus (as defined
below). The Company has supplied BAI
with the names,
addresses and
telephone numbers of
the individuals
or other
entities that the
Company has designated
to be participants in the Directed
Units Program.
The Company has entered into an Investment Management Trust Agreement,
dated as of the date hereof, with JPMorgan Chase Bank, NA (the
"Trustee"),
as
trustee, in
substantially
the form filed as an
exhibit to the Registration
Statement (the "Trust
Agreement"),
pursuant to which
certain proceeds of
the
offering of the
Securities will be
deposited and held in
a trust account (the
"Trust Account")
for the benefit of the Company and holders
of the Firm Units
and the Option Units, if and when issued.
The Company has entered into a Warrant Agreement, dated as of the date
hereof, with respect
to the Warrants with
Continental Stock
Transfer &
Trust
Company (the "Warrant Agent"), as warrant agent, in substantially
the form filed
as an exhibit to the Registration Statement (the "Warrant
Agreement"),
pursuant
to which the Warrant
Agent will act as
warrant agent in
connection
with the
issuance,
registration,
transfer, exchange,
redemption
and exercise of the
Warrants and the Private Placement Warrants (as hereinafter
defined).
The Company
has entered into Amended and Restated Subscription
Agreements, effective
as of July 6, 2006 (the "Subscription Agreements"), with
Churchill Capital Partners LLC ("CCP"), Thomas Baxter, Shraga Brosh and
Gerhard
Weisschadel (the
"Initial Stockholders"), pursuant to which the Initial
Stockholders have
purchased an
aggregate of 3,125,000
shares of Common
Stock
(the "Founder Shares") at an aggregate price of $15,625.
The Company has entered into a Warrant Purchase Agreement,
dated as of
September 5, 2006,
with CCP, and a Warrant Purchase Agreement, dated as of
February 12, 2007 with CCP (collectively, the "Warrant Purchase Agreement"),
pursuant to which CCP has agreed to purchase an aggregate of
5,000,000 Warrants
(the "Private Placement Warrants") for a price per Warrant of
$1.00, for a total
of $5,000,000, in a
private placement to
be completed prior to the offering of
the Units (the "Private Placement"). The Private Placement Warrants possess
terms identical to the
Warrants underlying
the Units sold to the public in the
offering except with
respect to the
redemption
thereof and certain
transfer
restrictions applicable thereto, as set forth in the Warrant
Purchase Agreement.
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The Company has entered into an agreement (the "Services Agreement")
with CCP, the
Company's principal
stockholder,
pursuant to which the
Company
will pay an aggregate
monthly fee of $7,500 for general and administrative
services, including office space, utilities and secretarial support
for a period
of up to twenty-four (24) months following the Effective Date,
terminating upon
the completion of a Business Combination.
The Company has entered into a Registration Rights Agreement,
dated as
of the date hereof,
in substantially the form filed as an exhibit to the
Registration Statement (the "Registration Rights Agreement"),
pursuant to which
the Company has granted certain registration rights in respect of the
Founder
Shares, the Private
Placement Warrants and the Common Stock underlying the
Private Placement Warrants.
The Company has caused to be duly executed and delivered letters by
each Initial
Stockholder
and each of the
Company's directors, officers and
special advisors,
filed as exhibits to the Registration Statement (as the same
may be amended
or supplemented from time to time, the "Insider Letters"),
pursuant to which each of the Initial Stockholders and each of the Company's
directors, officers
and special advisors agrees to certain matters, including
but not limited to, certain matters relating to the voting of shares
of Common
Stock owned by them, if any, and certain other matters described as
being agreed
to by them under the "Proposed Business" section of the Statutory
Prospectus (as
defined below) and the Prospectus.
In
consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company
represents
and warrants to each of the
Underwriters
as
follows:
(a) A
registration
statement on Form S-1 (File No.
333-135741) with
respect to the
Securities has been prepared by the Company in
conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules
and regulations
(the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has been
filed with the Commission. Copies of such registration statement,
including any
amendments thereto,
the preliminary
prospectuses (meeting
the requirements of
the Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised,
have heretofore
been
delivered by the Company to the Representative. Such registration statement,
together with any
registration statement
filed by the Company pursuant to Rule
462(b) under the Act,
is herein referred to
as the "Registration
Statement,"
which shall be deemed to include all information omitted therefrom in reliance
upon Rules 430A or 430C under the Act and contained in the
Prospectus
referred
to below, has become effective under the Act and no post-effective
amendment to
the Registration
Statement has been filed as of the date of this
Agreement.
"Prospectus" means
the form of
prospectus
first filed with the Commission
pursuant to and within the time limits described in Rule 424(b) under the Act.
Each preliminary
prospectus included in the Registration Statement prior to the
time it becomes
effective is herein referred to as a "Preliminary Prospectus."
Any reference herein to the Registration Statement, any Preliminary Prospectus
or to the Prospectus
or to any amendment or
supplement to any of the foregoing
documents shall be deemed to refer to and include any
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<PAGE>
documents incorporated
by reference therein,
and, in the case of any reference
herein to the
Prospectus,
also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments
thereto,
filed with the Commission after the date of filing of the
Prospectus under Rule
424(b) under
the Act, and prior to the termination of the offering of the
Securities by the Underwriters. The Company has filed with the
Commission a Form
8-A (File Number 001-33327) providing for the registration
under the
Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of the
Securities.
(b) The Units,
the Warrants and the Common Stock have
been duly listed,
and admitted and authorized for trading, subject only to
official notice of
issuance, on the
American Stock
Exchange, and the
Company
knows of no reason or set of facts which is likely to adversely affect such
approval. Neither the
Commission nor any state regulatory authority has issued
any order preventing or suspending the use of any Preliminary
Prospectus or the
Prospectus relating to the proposed offering of the Securities or
has instituted
or, to the Company's
knowledge, threatened
to institute any
proceedings with
respect to such an
order. Neither
the Commission nor any state regulatory
authority has issued any order preventing or suspending the
effectiveness of the
Registration Statement and no proceeding for that purpose or
pursuant to Section
8A of the Act has been instituted or is pending or is contemplated
or threatened
by the Commission.
(c) As of the
Applicable
Time (as defined
below) and as
of the Closing
Date or the
Option Closing Date (each such term as defined
below), as the case may be, the Statutory Prospectus (as defined below) and
the
information included
in Schedule I hereto all included together (collectively,
the "General
Disclosure
Package") did not and will not include any 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, provided, however,
that the Company
makes no representations or warranties as to information
contained in or omitted from the General Disclosure Package, in reliance upon,
and in conformity with, written information furnished to the Company by or
on
behalf of the
Underwriters,
specifically for use therein, it being understood
and agreed
that the only such
information
is that described in Section 12
herein. As used in this subsection and elsewhere in this
Agreement:
(i)
"Applicable Time"
means 4:30 pm (New York
time) on the date of this Agreement or such other time as
agreed to by
the Company and the Representative.
(ii)
"Statutory Prospectus"
as of any time means
the Preliminary
Prospectus relating to the Securities that is included
in the Registration Statement immediately prior to that time.
(d) The
agreements
and documents described in the
Registration Statement, the Statutory Prospectus and the
Prospectus conform, to
the extent described
therein, in all material respects to the descriptions
thereof contained therein. There is no franchise, contract or other document of
a character required
to be described in the Registration Statement, Statutory
Prospectus or
Prospectus, or to be
filed as an exhibit
thereto, which is
not
described or filed as required (and the Statutory Prospectus contains in all
material respects the same
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<PAGE>
description of the
foregoing matters contained in the Prospectus); and the
statements in the Statutory Prospectus and the Prospectus under the headings
"Principal
Stockholders,"
"Certain Relationships
and Related
Transactions,"
"Description of
Securities"
and "Legal
Matters" insofar as such statements
summarize legal matters, agreements, documents or proceedings
discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or
proceedings.
(e) The
Company has been duly
organized and is validly
existing as a
corporation
in good standing under the laws of the State of
Delaware, with
corporate power and authority to own or lease its properties
and
conduct its
business as described in the Registration Statement and the
Prospectus. The
Company is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification.
The Company has no subsidiaries, direct or indirect.
(f) The
information
set forth under the caption
"Capitalization" in
the Registration
Statement and the
Prospectus is true and
correct. All of the
Securities conform to the description thereof contained in
the Registration Statement and the Prospectus. The form of certificates for
the
Securities is in valid and sufficient form.
(g) All issued
and outstanding shares of Common Stock
have been duly and validly authorized and issued and are fully paid and
nonassessable. The
offers and sales of the outstanding Common Stock were at all
relevant times either
registered under the Act, the applicable state securities
and Blue Sky laws (or the laws and regulations of jurisdictions outside the
United States in which
Directed Units are offered) or, based in part on the
representations and warranties of the purchasers of such shares of
Common Stock,
exempt from such registration requirements. The holders of
outstanding shares of
capital stock of the
Company are not entitled to preemptive or other rights to
subscribe for securities; and, except as set forth in the
Statutory
Prospectus
and the Prospectus, no options, warrants or other rights to
purchase, agreements
or other obligations
to issue, or rights to convert any
obligations
into or
exchange any securities for, shares of capital stock of or
ownership
interests
in the Company are outstanding.
(h) The Unit
Shares have been duly
authorized and,
when
executed by the
Company and
countersigned, and
issued and delivered
against
payment therefor by the Underwriters pursuant to this Agreement,
will be validly
issued, fully paid and non-assessable. The holders of such Common Stock
are not
and will not be subject to personal liability by reason of being such
holders;
such Common
Stock is not and will
not be subject to any
preemptive
or other
similar contractual
rights granted by the Company;
and all corporate
action
required to be taken
for the authorization,
issuance and sale of such Common
Stock (other than such execution, countersignature and delivery at the time of
issuance) has been duly and validly taken.
(i) The
Warrants included in
the Units, when
executed,
authenticated, issued
and delivered
in the manner set forth in the Warrant
Agreement against
payment therefor by the Underwriters pursuant to this
Agreement, will be
duly authorized, duly
executed,
authenticated, issued
and
delivered, and will
constitute
valid and binding
obligations of the
Company,
enforceable against
the Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, or
similar laws
affecting
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<PAGE>
creditors' rights
generally from time to time in effect and by equitable
principles of general applicability.
(j) The
Warrant Shares have been duly authorized and,
when executed by the Company and countersigned and issued and
delivered against
payment therefor
pursuant to the
Warrants and the Warrant Agreement, will be
validly issued, fully paid and non-assessable. The holders of such Common
Stock
are not and will not be subject to personal liability by reason of being such
holders; such Common
Stock is not and will not be subject to any preemptive or
other similar
contractual
rights granted by the Company;
and all corporate
action required to be
taken for the
authorization,
issuance and sale of
such
Common Stock (other than such execution, countersignature and delivery at the
time of issuance) has been duly and validly taken.
(k) The
Initial Stockholders have waived any and all
rights and
claims they may have with respect to the Founder Shares to
participate in any
distributions
occurring upon the Company's failure to
consummate a Business Combination.
(l) The
execution and delivery of, and the performance by
the Company of its obligations under, this Agreement has been duly and
validly
authorized by all
necessary corporate
action on the part of
the Company, and
this Agreement has been duly executed and delivered by the
Company.
(m) The
Trust Agreement has been duly authorized,
executed and delivered
by the Company and is
a valid and binding
agreement of
the Company, enforceable against the Company in accordance with its
terms except
as the enforceability
thereof may be limited by bankruptcy, insolvency, or
similar laws affecting
creditors' rights
generally from time to time in effect
and by equitable principles of general applicability.
(n) The
Warrant Agreement has been duly authorized,
executed and delivered
by the Company and is
a valid and binding
agreement of
the Company, enforceable against the Company in accordance with its
terms except
as the enforceability
thereof may be limited by bankruptcy, insolvency, or
similar laws affecting
creditors' rights
generally from time to time in effect
and by equitable principles of general applicability.
(o) The
Warrant Purchase Agreement has been duly
authorized, executed
and delivered by the Company and CCP,
and is a valid and
binding agreement of
the Company and CCP,
enforceable against
the Company and
CCP in accordance
with its terms except
as the enforceability
thereof may be
limited by bankruptcy,
insolvency, or similar
laws affecting creditors' rights
generally from time to
time in effect and by
equitable principles
of general
applicability. The
entire $5,000,000
of proceeds from the
sale of the Private
Placement Warrants has
been deposited in the
Trust Account in accordance with
the terms of the Warrant Purchase Agreement.
(p) Each
Subscription Agreement has been duly authorized,
executed and delivered by the Company and the respective Initial Stockholder,
and is a valid and binding agreement of the Company and the
respective Initial
Stockholder,
enforceable against
the Company and such Initial Stockholder in
accordance with its terms except as the enforceability
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<PAGE>
thereof may be limited by bankruptcy, insolvency, or similar laws affecting
creditors' rights
generally from time to time in effect and by equitable
principles of general applicability.
(q) The
Services Agreement has been duly authorized,
executed and delivered
by the Company and is
a valid and binding
agreement of
the Company, enforceable against the Company in accordance with its
terms except
as the enforceability
thereof may be limited by bankruptcy, insolvency, or
similar laws affecting
creditors' rights
generally from time to time in effect
and by equitable principles of general applicability.
(r) The
Registration
Rights Agreement has been duly
authorized, executed
and delivered by the Company and is a valid and
binding
agreement of the Company, enforceable against the Company in
accordance with its
terms except
as the enforceability thereof may be limited by bankruptcy,
insolvency, or similar
laws affecting
creditors' rights generally from time to
time in effect and by equitable principles of general
applicability.
(s) Each of
the Insider Letters has been duly authorized,
executed and delivered by each of the individuals party thereto and is a valid
and binding agreement of each of such parties, enforceable against each of
them
in accordance with its terms except as the enforceability thereof
may be limited
by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally
from time to time in effect and by equitable principles of general
applicability.
(t) The
Registration
Statement
contains,
and the
Prospectus and
any amendments or supplements thereto will contain, all
statements which are
required to be stated therein by, and will conform to, the
requirements of the
Act and the Rules and
Regulations. Neither
the Commission
nor any state regulatory authority has issued an order
preventing or suspending
the use of any Preliminary Prospectus or the Prospectus relating to
the proposed
offering of the Units, and no proceeding for that purpose or
pursuant to Section
8A of the Act has been instituted or to the Company's knowledge, threatened by
the Commission or any state regulatory authority (or any regulatory
authority in
any jurisdiction outside the United States in which Directed Units
are offered).
To the knowledge of the Company, neither the Commission nor any
state regulatory
authority has issued any order preventing or suspending the
effectiveness of the
Registration Statement and no proceeding for that purpose or
pursuant to Section
8A of the Act has been instituted or is pending or is contemplated
or threatened
by the Commission. The
Registration Statement
and any amendment thereto do not
contain, and will not
contain, any untrue
statement of a
material fact and do
not omit, and will not
omit, to state a
material fact
required to be stated
therein or
necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not contain,
and will
not contain, any
untrue statement of a material fact; and do not omit, and will
not 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; provided,
however, that the Company makes no
representations
or
warranties as to
information
contained in or omitted from the Registration
Statement or the
Prospectus, or any
such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the
Company by or
on behalf of any of the Underwriters, specifically for use therein, it being
understood and
agreed that the only such information is that described in
Section 12 herein.
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(u) The
Company
has not, directly or indirectly,
distributed and will not distribute any offering material in
connection with the
offering and sale of
the Units other than any Preliminary Prospectus and the
Prospectus.
(v) The
financial statements of the Company, together
with related notes and schedules as set forth in the Registration
Statement and
the Prospectus,
present fairly the financial position and the results of
operations and cash
flows of the
Company at the
indicated dates and for the
indicated periods.
Such financial
statements and related
schedules have
been
prepared in
accordance
with generally accepted principles of accounting
("GAAP"), consistently
applied throughout the periods involved, except as
disclosed therein,
and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary and selected
financial and
statistical data
included or
incorporated
by reference
in the Registration
Statement and the Prospectus present fairly the information shown therein and
such data has been compiled on a basis consistent with the
financial
statements
presented therein
and the books and records of the Company. The pro forma
financial statements
and other pro forma financial information included in the
Registration Statement
and the Prospectus
present fairly the information shown
therein, have been
prepared in accordance with the Commission's rules and
guidelines with
respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the
assumptions used in the preparation thereof are reasonable and
the
adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred
to therein. The Company does not have any material
liabilities or
obligations,
direct or contingent
(including
any off balance
sheet obligations
or any "variable
interest entities" within the meaning of
Financial Accounting
Standards Board
Interpretation No.
46), not disclosed in
the Registration Statement and the Prospectus. There are no
financial statements
(historical or pro
forma) that are required to be included in the Registration
Statement or the Prospectus that are not included as required.
(w) Eisner
LLP ("Eisner"), who has certified the
financial statements
that are filed with the Commission as part of the
Registration Statement
and the Prospectus, is
an independent registered public
accounting firm with
respect to the Company
within the meaning of
the Act and
the applicable Rules and Regulations and the Public Company
Accounting Oversight
Board (United States) (the "PCAOB"). Eisner has not, during the periods
covered
by the financial
statements
included in the Statutory Prospectus and the
Prospectus, provided to the Company any non-audit services, as such
term is used
in Section 10A(g) of the Exchange Act.
(x) The
Company is not aware of (i) any material weakness
in its internal
control over financial reporting or (ii) change in
internal
control over financial reporting that has materially affected,
or is reasonably
likely to materially
affect, the
Company's internal control over financial
reporting.
(y) Solely to
the extent that the
Sarbanes-Oxley Act
of
2002, as amended, and
the rules and
regulations
promulgated by the Commission
and the American
Stock Exchange thereunder (the "Sarbanes-Oxley Act") is
applicable to the
Company, there is and
has been no failure on the part of the
Company to
comply in all material respects with any provision of the
Sarbanes-Oxley Act.
The Company has taken all necessary actions to ensure that
it is in compliance
with all provisions of the Sarbanes-Oxley Act that are in
effect and with which the
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Company is required to
comply and is actively
taking steps to ensure that it
will be in compliance
with other provisions of the Sarbanes-Oxley Act not
currently in effect or which will become applicable to the
Company.
(z) The
Company has good and
marketable title to
all of
the properties
and assets
reflected in the
financial statements
hereinabove
described or described in the Registration Statement and the
Prospectus, subject
to no lien, mortgage,
pledge, charge or encumbrance of any kind except
those
reflected in
such financial statements or described in the Registration
Statement and the
Prospectus or which
are not material in amount. The Company
occupies its leased properties under valid and binding leases.
(aa)
The Company has filed all Federal, State, local and
foreign tax returns which have been required to be filed and have
paid all taxes
indicated by such returns and all assessments received by it to the extent
that
such taxes have become due. All tax liabilities have been adequately provided
for in the financial statements of the Company, and the Company
does not know of
any actual or proposed additional material tax assessments.
(bb)
Since the respective dates as of which information is
given in the Registration Statement and the Prospectus,
as each may be
amended
or supplemented,
there has not been any material adverse change or any
development involving
a prospective material adverse change in or affecting the
earnings, business,
management,
properties,
assets,
rights, operations,
condition (financial or otherwise), or prospects of the Company,
whether or not
occurring in the
ordinary course of business, and there has not been any
material transaction
entered into or any material transaction that is probable
of being entered into by the Company, other than transactions in the ordinary
course of business and changes and transactions described in the Registration
Statement and the
Prospectus,
as each may be
amended or supplemented. The
Company has no material contingent obligations which are not disclosed in the
Company's financial statements which are included in the
Registration
Statement
and the Prospectus.
(cc)
There is no action, suit, claim or proceeding
pending, or to the knowledge of the Company threatened,
against the Company
or,
pending, or to the
knowledge of the Company threatened, against any of the
Company's stockholders
immediately prior to
the offering of the Units, before
any court or administrative agency or otherwise which if determined
adversely to
the Company would either (i) have, individually or in the aggregate,
a material
adverse effect
on the earnings, business, management, properties, assets,
rights, operations,
condition (financial or otherwise) or prospects of the
Company or (ii) prevent the consummation of the transactions
contemplated hereby
(the occurrence
of any such
effect or any such
prevention
described in the
foregoing clauses
(i) and (ii) being referred to as a "Material Adverse
Effect"), except as set forth in the Registration Statement and the
Prospectus.
(dd)
The Company is not,
nor with the giving of notice or
lapse of time or both,
will it be,
(i) in violation of its certificate of
incorporation, by-laws or other organizational documents or (ii) in
violation of
or in default under any agreement, lease, contract, indenture or other
instrument or
obligation
to which it is a party
or by which it, or any of its
properties, is bound
and, solely
with respect to this clause (ii), which
violation or default
would have a Material
Adverse Effect.
The execution and
delivery of this
Agreement and the
consummation
of the transactions herein
contemplated and the
fulfillment of the
terms hereof
9
<PAGE>
will not conflict with
or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or
instrument
to which the Company
is a party or by which the
Company or
any of its properties is bound, or of the certificate of
incorporation or
by-laws of the Company or any law, order, rule or regulation
judgment, order, writ or decree applicable to the Company of any
court or of any
government, regulatory
body or administrative agency or other governmental body
having jurisdiction.
(ee)
The Company possesses
all licenses, certificates,
permits and other
authorizations issued
by the appropriate
federal, state or
foreign regulatory
authorities
necessary to conduct its business, and the
Company has not received any notice of proceedings relating to the
revocation or
modification of any such certificate, authorization or permit.
(ff)
Each approval,
consent,
order,
authorization,
designation, declaration or filing by or with any regulatory,
administrative or
other governmental
body necessary in connection with the execution and delivery
by the Company of this Agreement, the Trust Agreement, the Warrant Agreement,
the Subscription
Agreements, the
Warrant Purchase Agreement, the Registration
Rights Agreement,
the Services Agreement and the Insider Letters and the
consummation of the
transactions herein
contemplated
(except such
additional
steps as may be required by the Commission, the NASD, or such additional
steps
as may be necessary
to qualify the Securities for public offering by the
Underwriters under state securities or Blue Sky laws or the laws
and regulations
of jurisdictions
outside the United States in which Directed Units are offered)
has been obtained or made and is in full force and effect.
(gg)
Neither the Company
nor any of its
affiliates, has
taken or may take,
directly or
indirectly,
any action
designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the
stabilization
or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the
Securities.
(hh)
The Company is not nor, after giving effect to the
offering and sale of the Securities contemplated hereunder and the application
of the net proceeds from such sale as described in the Prospectus, will not be
an "investment
company" within the meaning of such term
under the
Investment
Company Act of 1940 as amended (the "1940 Act"), and the rules and regulations
of the Commission thereunder.
(ii)
The Company maintains a system of internal accounting
controls sufficient to
provide reasonable
assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii)
transactions are
recorded as
necessary to permit preparation of financial
statements in conformity with GAAP and to maintain
accountability
for assets;
(iii) access to assets is permitted only in accordance with
management's general
or specific
authorization; and
(iv) the recorded
accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is
taken with respect to any differences.
10
<PAGE>
(jj)
The Company has established and maintains "disclosure
controls and
procedures" (as defined in Rules 13a-14(c) and 15d-14(c) under
the
Exchange Act); the Company's "disclosure controls and procedures"
are reasonably
designed to ensure
that all information
(both financial and non-financial)
required to be
disclosed by the Company in the reports that it files or
submits
under the Exchange Act is recorded, processed, summarized and reported
within
the time periods specified in the rules and regulations of the
Exchange Act, and
that all such
information is
accumulated
and communicated to the Company's
management as
appropriate
to allow timely decisions regarding required
disclosure and to make the certifications of the Chairman and Chief
Financial
Officer of the Company
required under the
Exchange Act with respect to such
reports.
(kk)
The statistical,
industry-related and market-related
data included in the Registration Statement, the General Disclosure Package
and
the Prospectus are based on or derived from sources which the
Company reasonably
and in good faith
believes are reliable and accurate, and such data agree with
the sources from which they are derived.
(ll)
The operations
of the Company are and have been
conducted at all times in compliance with applicable financial record-keeping
and reporting
requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, applicable money laundering statutes and applicable
rules and regulations
thereunder
(collectively, the
"Money Laundering Laws"),
and no action, suit or proceeding by or before any court or
governmental agency,
authority or body or any arbitrator involving the Company with respect to
the
Money Laundering Laws is pending or, to the Company's knowledge,
threatened.
(mm)
Neither the Company nor any director, officer, agent,
employee or affiliate of the Company is currently subject to any
U.S. sanctions
administered by the
Office of Foreign Assets Control of the U.S. Treasury
Department ("OFAC");
and the Company will
not directly or
indirectly use the
proceeds of the offering, or lend, contribute or otherwise make
available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(nn)
The Company
does not carry,
and is not covered
by,
insurance.
(oo)
The Securities
have been approved for listing subject
to notice of issuance on the American Stock Exchange.
(pp)
There are
no relationships or related-party
transactions involving
the Company or any other person required to be described
in the Prospectus which have not been described as required.
(qq)
The Company has not
made any contribution
or other
payment to any
official of, or
candidate for,
any federal,
state or foreign
office in violation
of any law which
violation is required
to be disclosed in
the Prospectus.
(rr)
(i) The Registration Statement, the Prospectus, the
General Disclosure
Package and any Preliminary Prospectus comply, and any
further amendments or
11
<PAGE>
supplements thereto
will comply, with any
applicable
laws or regulations of
foreign jurisdictions in which the Prospectus, the General
Disclosure Package or
any Preliminary
Prospectus,
as amended or
supplemented,
if applicable,
are
distributed in
connection
with the Directed Unit Program, and (ii) no
authorization,
approval, consent,
license, order registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have
been obtained, is necessary under the securities laws and
regulations of foreign
jurisdictions
in which the Directed
Units are offered
outside the United States.
(ss)
The Company
has not offered, or caused the
Underwriters or their
affiliates to offer,
Units to any person pursuant to the
Directed Unit Program
with the specific
intent to unlawfully
influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level
or type of business with the Company, or (ii) a trade journalist or
publication
to write or publish favorable information about the Company or its
products.
(tt)
The execution,
delivery, and performance by the
Company of this
Agreement, the Warrant
Agreement,
the Trust Agreement, the
Subscription Agreements, the Warrant Purchase Agreement, the
Registration Rights
Agreement and the Services Agreement, the consummation by the Company of the
transactions herein
and therein
contemplated and the compliance by the Company
with the terms hereof
and thereof do not and will not,
with or without the
giving of notice or the lapse of time or both:
(i) result in a breach of, or
conflict with any of the terms and provisions of, or constitute a
default under,
or result in the creation, modification, termination or imposition of any
lien,
charge or encumbrance upon any property or assets of the Company
pursuant to the
terms of any agreement
or instrument to which the Company is a party
except
pursuant to the Trust Agreement; (ii) result in any violation of
the provisions
of the certificate
of incorporation or the by-laws of the Company;
or (iii)
violate any existing applicable law, rule, regulation, judgment,
order or decree
of any governmental
agency or court,
domestic or foreign,
having jurisdiction
over the Company or any of its properties or business.
(uu)
To the knowledge
of the Company, all information
contained in the
questionnaires
completed by the Initial Stockholders and the
directors, officer and special advisors and provided to the
Representative as an
exhibit to his or her
Insider Letter is true and correct in all material
respects and the
Company has not become
aware of any
information which
would
cause the information disclosed in the questionnaires completed by each Initial
Stockholder, director,
officer and special
advisor to become
inaccurate
and
incorrect in any material respect.
(vv)
Except as described in the Statutory Prospectus and
the Prospectus,
there are no claims, payments, arrangements, contracts,
agreements or understandings relating to the payment of a
brokerage
commission
or finder's,
consulting,
origination
or similar 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 any Initial
Stockholder that may affect the Underwriters' compensation, as
determined by the
NASD.
(ww)
Except as disclosed in the Registration Statement and
the Prospectus,
to the knowledge of the Company, no Initial Stockholder,
employee, officer or
director of the Company is subject to any non-competition
or non-solicitation
agreement with
12
<PAGE>
any employer or prior
employer which could materially adversely affect his
ability to be an Initial Stockholder, employee, officer and/or director of the
Company.
(xx)
The Company
has not made
any direct or indirect
payments (in cash,
securities or otherwise) to: (i) 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 12 months prior to the Effective Date.
(yy)
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 or
except as may be paid in connection with an
initial Business
Combination and/or one
or more other
transactions after
the
initial Business
Combination, including
without limitation in
connection with
the payment of
investment
banking fees, fees in connection with fairness
opinions and the like.
(zz)
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 if it learns
that any officer
or director is or becomes an affiliate or associated person of an NASD member
participating in the offering.
(aaa)
There are no business
relationships or related party
transactions involving
the Company or any other person required to be described
in the Registration Statement and the Prospectus that have not been
described as
required.
(bbb) Upon
delivery and payment for the Firm Units on
the
Closing Date, the Company will not be subject to Rule 419 under the
Act and none
of the Company's outstanding securities will be deemed to be a
"penny stock" as
defined in Rule 3a-51-1 under the Exchange Act.
(ccc) The
Company does not have any specific Business
Combination under
consideration and the Company does not (nor has anyone on its
behalf) contacted any prospective acquisition candidate or had any
discussions,
formal or otherwise, with respect to such a transaction.
(ddd) The
Company has not
prepared or used an
Issuer Free
Writing Prospectus,
as such term is defined in Rule 433 under the Act in
connection with the offering of the Units.
2.
PURCHASE, SALE AND DELIVERY OF THE FIRM SECURITIES.
(a) On the
basis of the
representations,
warranties and
covenants herein contained, and subject to the conditions
herein set forth, the
Company agrees to sell to the several Underwriters and the Underwriters agree
severally and not jointly, to purchase, at a price of $7.72 per unit
(including
$0.28 per Firm Unit to be held in the Trust Account as deferred
13
<PAGE>
discount and commissions (the "Deferred Underwriting Discount")),
the number of
Firm Units set forth on Schedule II subject to adjustments in accordance with
Section 9 hereof.
(b) Payment
for the Firm Units to be sold hereunder is to
be made in Federal (same day) funds against delivery of
certificates therefor to
the Representative
for the several
accounts of the Underwriters. Such payment
and delivery are to be
made through the
facilities
of The Depository Trust
Company, New York,
New York ("DTC") at
10:00 a.m., New York time, on the third
business day after
the date of this
Agreement (or the fourth business day
following the date of this Agreement, if the Registration Statement is
declared
effective after
4:30 p.m., New York time) or at such other
time and date not
later than five business days thereafter as the Representative and the Company
shall agree upon, such
time and date being
herein referred to as
the "Closing
Date." (As used herein, "business day" means a day on which the New
York Stock
Exchange is open
for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be
closed.) Payment
for the Firm Units shall be made on the Closing Date by wire
transfer in Federal
(same day) funds, as follows: ninety-five million dollars
($95,000,000) (without
giving effect to the
over-allotment
option) of the
proceeds received by the
Company for the Firm Units shall be deposited in the Trust
Account (including
three million five hundred thousand dollars ($3,500,000) to be held
in the Trust
Account as Deferred
Underwriting Discount)
and the remaining one
million five
hundred thousand dollars ($1,500,000) (representing $950,000 of the
proceeds not
required to be held in the trust account and $550,000 of offering
expenses) of
the proceeds shall be paid to the Company upon delivery to the
Representative of
certificates (in
form and substance satisfactory to the Underwriters)
representing the Firm
Units (or through the
facilities of DTC) for the several
accounts 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.
(c) 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 to purchase the
Option Units at the
price per unit as set forth in the first paragraph of this
Section 2. The option
granted hereby may be
exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and
(ii) only once
thereafter
within 30 days after the date of this Agreement, by the
Representative, to the
Company setting
forth the number of
Option Units as to
which the Underwriters
are exercising the option and the time and date at which
such certificates are to be delivered. The time and date at which
certificates
for Option Units are to be delivered shall be determined by the
Representative
but shall not be earlier than three nor later than 10 full
business days after
the exercise of such
option, nor in any event prior to the
Closing Date (such
time and date being herein referred to as the "Option
Closing Date"). If the
date of exercise of
the option is three or more days before the Closing Date,
the notice of exercise
shall set the Closing Date as the Option Closing Date.
The option with respect to the Option Units granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Units by the
Underwriters.
The Representative may cancel such option at any time prior to its
expiration by
giving written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Units
shall
14
<PAGE>
be made on the Option
Closing Date in
Federal (same day
funds) through the
facilities of DTC
drawn to the order of the Company. Payment for the Option
Units
