UNDERWRITING AGREEMENT between L&L ACQUISITION CORP. and MORGAN JOSEPH LLC Dated: November [•], 2010
Exhibit 1.1
between
L&L ACQUISITION CORP.
and
XXXXXX XXXXXX LLC
Dated: November [•], 2010
L&L ACQUISITION CORP.
Xxxxxx Xxxxxx LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
Several Underwriters named in Schedule I hereto
Several Underwriters named in Schedule I hereto
Re: Public Offering of Securities
Ladies and Gentlemen:
The undersigned, L&L Acquisition Corp., a Delaware corporation (“Company”), hereby
confirms its agreement with Xxxxxx Xxxxxx LLC (“Xxxxxx Xxxxxx LLC”) and with the other
underwriters named on Schedule I hereto for which Xxxxxx Xxxxxx LLC is acting as representative
(Xxxxxx Xxxxxx LLC, in its capacity as representative, is referred to herein variously as “you,” or
the “Representative”; the Representative and the other underwriters are collectively
referred to as 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 to the several Underwriters, an aggregate of 5,000,000 units (“Firm Units”)
of the Company, at a purchase price (net of discounts and commissions) of $[9.70] 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 $[9.70] per Firm Unit. The Firm
Units are to be offered initially to the public at the offering price of $10.00 per Firm Unit.
Each Firm Unit consists of one share of the Company’s common stock, par value $.0001 per share
(“Common Stock”), and one warrant (“Warrant”). The shares of Common Stock and the
Warrants included in the Firm Units will trade separately on the fifth business day following the
earlier to occur of the expiration of the Over-allotment Option (as defined in Section 1.2.1
hereof), which is 45 days from the date of the Prospectus (as defined in Section 2.1.1 hereof), its
exercise in full or the announcement by the Underwriters of their intention not to exercise all or
any remaining portion of the Over-allotment Option, but in no event will the shares of Common Stock
and the Warrants included in the Firm Units trade separately until the business day after (i) the
Company has filed with the Securities and Exchange Commission (the “Commission”) a Current
Report on Form 8-K which includes an audited balance sheet reflecting the Company’s receipt of the
proceeds of the offering of the Firm Units and the Private Placement (as defined in Section 1.3),
including any proceeds the
Company receives from the exercise of the Over-allotment Option if such option is exercised
prior to the filing of the Form 8-K, (ii) the Company has filed with the Commission a Current
Report on Form 8-K and issued a press release announcing when such separate trading will begin, and
(iii) the expiration of the Over-allotment Option or its exercise in full. Each Warrant entitles
its holder to exercise it to purchase one share of Common Stock for $11.50 during the period
commencing on the later of 30 days after the consummation by the Company of its Business
Combination or one year from the effective date (“Effective Date”) of the Registration
Statement (as defined in Section 2.1.1 hereof) and terminating on the five-year anniversary of the
consummation by the Company of its Business Combination. “Business Combination” shall mean
the Company’s initial acquisition of one or more operating businesses or assets through a merger,
capital stock exchange, asset acquisition, stock purchase, reorganization, exchangeable share
transaction or other similar business combination.
1.1.2 Payment and Delivery. Delivery and payment for the Firm Units shall be made at
10:00 a.m., New York City time, on the fourth Business Day (as defined below) following the
effective date of the Registration Statement or at such earlier time as shall be agreed upon by the
Representative and the Company at the offices of XxXxxxxxx Will & Xxxxx LLP (“XxXxxxxxx”)
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 the “Closing Time” and the date
on which the Closing Time occurs is called the “Closing Date.” Payment for the Firm Units
shall be made by wire transfer in Federal (same day) funds, payable as follows: $[•] of the
proceeds received by the Company for the Firm Units in the trust account established by the Company
and [•], a corporation qualified as a security corporation under Massachusetts General Laws Ch. 63,
sec. 38B and a wholly-owned subsidiary of the Company (the “Security Corp”), for the
benefit of the holders of shares of Common Stock included in the Units (as defined in Section
1.2.1) (such shares of Common Stock, the “Public Common Stock” and the holders of such
Public Common Stock, the “Public Stockholders”) as described in the Registration Statement
(“Trust Account”) pursuant to the terms of an Investment Management Trust Agreement
(“Trust Agreement”) between the Company, the Security Corp and Continental Stock Transfer &
Trust Company (“CST”) and the remaining proceeds shall be paid (subject to Section 3.10
hereof) to the order of the Company upon delivery to you of the Firm Units through the facilities
of the Depository Trust Company (“DTC”) for the account of the Underwriters or, at the
instruction of the Representative, by delivery of certificates in form and substance satisfactory
to 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. If the Representative has instructed that certificates be
delivered for the Firm Units, the Company will permit the Representative to examine and package the
Firm Units for delivery, at least one full Business Day prior to the Closing Date. The Company
shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the
Representative for all the Firm Units. “Business Day” shall mean any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
1.1.3 Contingent Fees. The following additional contingent fees (the “Contingent
Fees”) will become payable from the amounts held in the Trust Account solely in the event the
Company consummates the Business Combination: (a) Xxxxxx Xxxxxx LLC will be paid an advisory fee
equal to 1.5% of the gross proceeds from the sale of the Units; and (b) to the
extent that, in connection with a Business Combination, Xxxxxx Xxxxxx LLC assists in finding
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third parties to purchase shares of Public Common Stock held by Public Stockholders, and such third
parties purchase such shares and do not redeem such shares in connection with the Business
Combination, Xxxxxx Xxxxxx LLC will be paid a fee equal to 2.5% of the pro rata portion of the
Trust Account to which the shares that were sold to such third parties as a result of Xxxxxx Xxxxxx
LLC’s efforts would have been entitled to receive had they been redeemed. The Contingent Fees will
be payable from amounts on deposit in the Trust Account if and when the Company consummates a
Business Combination. Xxxxxx Xxxxxx LLC understands and agrees that if, in connection with a
Business Combination, other firms assist in finding third parties to purchase shares of Public
Common Stock held by Public Stockholders, and such third parties purchase such shares and do not
redeem such shares in connection with the Business Combination, the Company may pay such firms a
fee equal to 2.5% of the pro rata portion of the Trust Account to which the shares that were sold
to such third parties as a result of such firms’ efforts would have been entitled to receive had
they been redeemed. In the event that the Company is unable to consummate a Business Combination
and CST, the trustee of the Trust Account, commences liquidation of the Trust Account, Xxxxxx
Xxxxxx LLC hereby agrees to the following: (i) to forfeit any and all rights or claims to the
Contingent Fees; and (ii) that the Contingent Fees shall be distributed on a pro-rata basis among
the Public Stockholders along with any interest accrued thereon, net of taxes payable.
1.2 Over-Allotment Option.
1.2.1 Option Units. Solely 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 750,000 units from the Company
(“Over-allotment Option”). Such additional 750,000 units, the net proceeds of which will
be deposited in the Trust Account, are hereinafter referred to as “Option Units.” The Firm
Units and the Option Units are hereinafter collectively referred to as the “Units,” and the
Units, the shares of Common Stock and the Warrants included in the Units and the shares of Common
Stock issuable upon exercise of the Warrants are hereinafter referred to collectively as the
“Public Securities.” The purchase price to be paid for the Option Units will be the same
price per Option Unit as the price per Firm Unit set forth in Section 1.1.1 hereof.
1.2.2 Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1
hereof may be exercised by the Representative as to all (at any time) or any part (from time to
time) of the Option Units within 45 days after the Effective Date. The Underwriters will not be
under any obligation to purchase any Option Units prior to the exercise of the Over-allotment
Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to
the Company by the Representative, which must be confirmed in writing by overnight mail, facsimile
transmission or e-mail, setting forth the number of Option Units to be purchased and the date and
time for delivery of and payment for the Option Units (the “Option Closing Time” and the
date on which the Option Closing Time occurs the “Option Closing Date”), which will not be
later than five full Business Days after the date of the notice or such other time and in such
other manner as shall be agreed upon by the Company and the Representative, at the offices of
XxXxxxxxx or at such other place as shall be agreed upon by the Company and the Representative.
Upon exercise of the Over-allotment Option, the Company will become obligated to convey to the
Underwriters, and, subject to the terms and conditions set
forth herein, the Underwriters will become obligated to purchase, the number of Option Units
specified in such notice.
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1.2.3 Payment and Delivery. Payment for the Option Units shall be made on the Option
Closing Date by wire transfer in Federal (same day) funds payable as follows: $[•] per Option Unit
shall be deposited in the Trust Account pursuant to the Trust Agreement and the remaining proceeds
shall be paid (subject to Section 3.10 hereof) to the order of the Company upon delivery to you of
the Option Units through the facilities of DTC for the account of the Underwriters or, at the
instruction of the Representative, by delivery of certificates in form and substance satisfactory
to the Underwriters. The Option 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 Option Closing Date. If the Representative has instructed that certificates be
delivered for the Firm Units, the Company will permit the Representative to examine and package the
Firm Units for delivery, at least one full Business Day prior to the Option Closing Date.
1.3 Placement Warrants. Pursuant to a Warrant Purchase Agreement, annexed as Exhibit
[•] of the Registration Statement (the “Warrant Purchase Agreement”), the Company shall
issue and sell to (i) Xxxx X. Xxxxxxxx, (ii) LLM Structured Equity Fund L.P., a Delaware limited
partnership, (iii) LLM Investors L.P., a Delaware limited partnership (together with LLM Structured
Equity Fund L.P., the “LLM Sponsors”), (iv) certain directors and advisory board members of
the Company and (v) the Underwriters (the “Placement Warrant Holders”) an aggregate of
5,333,334 warrants having the terms described in the Warrant Purchase Agreement (the “Placement
Warrants”), for a purchase price of $0.50 per Placement Warrant, in a private placement
pursuant to Section 4(2) of the Act occurring at or prior to the Closing Time (the “Private
Placement”). The Company shall deposit the proceeds from the sale of the Placement Warrants in
the Trust Account at or prior to the Closing Time.
2. Representations and Warranties of the Company. The Company represents and warrants
to the Underwriters as follows:
2.1 Filing of Registration Statement.
2.1.1 Pursuant to the Act. The Company has filed with the Commission a registration
statement and an amendment or amendments thereto, on Form S-1 (File No. 333-168949), including any
related preliminary prospectus (“Preliminary Prospectus”), for the registration of the
Public Securities under the Securities Act of 1933, as amended (“Act”), which registration
statement and amendment or amendments have been prepared by the Company in conformity with the
requirements of the Act, and the rules and regulations (the “Regulations”) of the
Commission under the Act. The conditions for use of Form S-1 to register the offering of the Units
(the “Offering”) under the Act, as set forth in the General Instructions to such Form, have
been satisfied. Except as the context may otherwise require, such registration statement, as
amended, on file with the Commission at the time the registration statement becomes effective
(including the prospectus, financial statements, schedules, exhibits and all other documents filed
as a part thereof or incorporated therein and all information deemed to be a part thereof as of
such time pursuant to Rule 430A of the Regulations), is hereinafter called the “Registration
Statement,” and the form of the final prospectus dated the Effective Date filed by the Company
with the Commission pursuant to Rule 424 of the Regulations is hereinafter called the
“Prospectus.” For purposes of this Agreement, “Time of Sale” means 4:30 p.m. New
York City time, on the date of this Agreement. Prior to the Time of Sale, the Company prepared a
Preliminary Prospectus, which was included in the Registration Statement dated [•], 2010, for
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distribution by the Underwriters (such Preliminary Prospectus together with the Time of Sale
Information, if any, set forth on Schedule II hereto, the “Sale Preliminary Prospectus”).
If the Company has filed, or is required pursuant to the terms hereof to file, a Registration
Statement pursuant to Rule 462(b) under the Act registering additional Securities of any type (a
“Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes
effective upon filing, no other document with respect to the Registration Statement has heretofore
been filed with the Commission. All of the Public Securities have been registered for public sale
under the Act pursuant to the Registration Statement or, if any Rule 462(b) Registration Statement
is filed, will be duly registered for public sale under the Act with the filing of such Rule 462(b)
Registration Statement. The Registration Statement has been declared effective by the Commission
on the date hereof.
2.1.2 Pursuant to the Exchange Act. The Company has filed with the Commission a Form
8-A (File Number [•]) 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 is effective on the
date hereof.
2.2 No Stop Orders, Etc. The Commission has not issued any order or, to the Company’s
knowledge, threatened to issue any order preventing or suspending the use of any Sale Preliminary
Prospectus or Prospectus or has instituted or, to the Company’s knowledge, threatened to institute
any proceedings with respect to such an order.
2.3 Registration Statement and Prospectuses.
2.3.1 Compliance with the Act and Regulations. The Registration Statement, at the
time it became effective, complied in all material respects with the requirements of the Act and
the Regulations. Each Preliminary Prospectus, at the time it was filed, complied as to form in all
material respects with the Act and the Regulations. The Sale Preliminary Prospectus, at the time
when it was filed, complied in all material respects with the Act and the Regulations. The
Prospectus, at the time when it is filed and at the Closing Time and any Option Closing Time, will
comply in all material respects with the Act and the Regulations.
2.3.2 10b-5 Representation. The Registration Statement, at the time it became
effective, did not 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. Neither the Sale Preliminary Prospectus,
at the Time of Sale, nor the Prospectus (including any amendment thereof or supplement thereto), as
of its date and on the Closing Date and any Option Closing Date, contained 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. The representations and warranties made
in this Section 2.3.2 do 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
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Preliminary Prospectus
or the Prospectus or any amendment thereof or supplement thereto, it being understood and agreed
that the only such information furnished by the Representative consists of the information
described as such in Section 5.2 hereof.
2.3.3 Disclosure of Agreements. The agreements and documents described in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus conform in all material
respects 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 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 Sale Preliminary Prospectus or 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 Company’s knowledge, any other party is in breach or default thereunder and, to
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 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, except to the extent that any such violation would not reasonably
be expected to have a material adverse effect on the business, properties, prospects, assets,
results of operations or condition (financial or otherwise) of the Company and the Security Corp
considered as one enterprise (“Material Adverse Effect”).
2.3.4 Prior Securities Transactions. No securities of the Company have been sold by
the Company or by or on behalf of, or for the benefit of, any person or persons controlling,
controlled by, or under common control with the Company since the Company’s formation, except as
disclosed in the Registration Statement.
2.3.5 Regulations. The disclosures in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus concerning the effects of Federal, State and local
regulation on the Company’s business as currently contemplated are correct in all material
respects.
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
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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 (i) as contemplated pursuant to this
Agreement, (ii) in the ordinary course of business and (iii) transactions described in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus and (iii) no member of
the Company’s management has resigned from any position with the Company.
2.4.2 Recent Securities Transactions; Etc. Subsequent to the respective dates as of
which information is given in the Registration Statement, 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 liability or obligation, direct or contingent,
for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in
respect to its equity securities.
2.5 Independent Accountants. To the Company’s knowledge, Xxxxxxxxx, Kass & Company,
P.C. (“RK & Co.”), whose report is filed with the Commission as part of the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus and included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, are independent registered public
accountants as required by the Act and the Regulations.
2.6 Financial Statements. The financial statements of the Company, including the
related notes thereto and supporting schedules included in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus present fairly the financial position, the results of
operations and the cash flows of the Company at the dates and for the periods to which they apply;
such financial statements have been prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods involved. The Registration Statement, the
Sale Preliminary Prospectus and the Prospectus disclose 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. There are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus that are not included as required.
2.7 Authorized Capital; Options; Etc. The Company had at the date or dates indicated
in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus duly authorized,
issued and outstanding capitalization as set forth in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus. Based on the assumptions stated in the Registration
Statement, the Sale Preliminary Prospectus 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, the Sale Preliminary Prospectus 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.
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2.8 Valid Issuance of Securities; Etc.
2.8.1 Outstanding Securities.
(i) All issued and outstanding securities of the Company (including, without
limitation, the Placement Warrants) have been duly authorized and validly issued and
are fully paid and non-assessable; the holders thereof are not and will not be
subject to personal liability by reason of being such holders; such securities have
been issued in compliance with all federal and state securities laws; and none of
such securities were issued in violation of any preemptive rights of any holders of
any security of the Company or similar contractual rights granted by the Company.
The authorized Common Stock and Warrants conform 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
securities of the Company were at all relevant times either registered under the Act
and the applicable state securities or Blue Sky laws or exempt from such
registration requirements.
(ii) All issued and outstanding securities of the Security Corp have been duly
authorized and validly issued and are fully paid and non-assessable.
2.8.2 Securities Sold Pursuant to this Agreement. The Public 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 Public 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 Public Securities has been duly and validly taken. The certificates for the Public Securities
are in valid and proper form. The Securities conform in all material respects to all statements
with respect thereto contained in the Registration Statement, the Sale Preliminary Prospectus and
the Prospectus.
2.8.3 Warrants and Placement Warrants The Warrants and the Placement Warrants
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 the Warrants and the Placement
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 federal and
state securities laws; and (iii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought. The shares of Common Stock issuable
upon exercise of the Warrants and the Placement Warrants have been reserved for issuance upon the
exercise of the Warrants and the Placement Warrants and, when issued in accordance with the terms
of the Warrants and the Placement Warrants, will be duly and validly authorized, validly issued,
fully paid and non-assessable; the holders thereof are not and will not
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be subject to personal
liability by reason of being such holders; such shares of Common Stock 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 such shares of Common Stock has been duly and validly taken.
2.8.4 No Integration. Neither the Company nor any of its affiliates has, prior to the
date hereof, made any offer or sale of any securities that are required to be “integrated” pursuant
to the Act or the Regulations with the offer and sale of the Public Securities pursuant to the
Registration Statement.
2.9 Registration Rights of Third Parties. Except as set forth in the Registration
Statement, 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 Entry into Agreements.
2.10.1 Warrant Agreement. The Company has entered into a warrant agreement with
respect to the Warrants with CST substantially in the form annexed as Exhibit [•] to the
Registration Statement (“Warrant Agreement”).
2.10.2 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 [•] to the Registration Statement.
2.10.3 Escrow Agreement. The Company, the holders of the shares of Common Stock
initially purchased by Xxxx X. Xxxxxxxx and the LLM Sponsors in July 2010 (the “Initial
Shares”) and the Placement Warrant Holders have entered into an escrow agreement (“Escrow
Agreement”) with CST (“Escrow Agent”) with respect to the Initial Shares and the
Private Placement Warrants substantially in the form annexed as Exhibit [•] to the Registration
Statement.
2.10.4 Warrant Purchase Agreement. The Company has entered into the Warrant Purchase
Agreement with the Placement Warrant Holders with respect to the purchase of the Placement
Warrants.
2.10.5 Insider Letters. The Company has entered into letter agreements with the LLM
Sponsors and each of its officers and directors substantially in the forms annexed
as Exhibits [•] to the Registration Statement (“Insider Letters”), pursuant to which
each of the Insiders 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
Sale Preliminary Prospectus and the Prospectus.
2.10.6 Right of First Refusal Agreement. The Company has entered into the Right of
First Refusal Agreement with the LLM Sponsors and LLM Capital Partners LLC
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substantially in the
form annexed as Exhibit [•] to the Registration Statement (“Right of First Refusal
Agreement”).
2.11 Validity and Binding Effect of Agreements.
2.11.1 All Agreements with Respect to the Company. This Agreement, the Warrant
Agreement, the Trust Agreement, the Escrow Agreement, the Warrant Purchase Agreement, the Insider
Letters and the Right of First Refusal Agreement have been duly and validly authorized, executed
and delivered by the Company and 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. The execution, delivery, and performance by the Company of this Agreement, the Warrant
Agreement, the Trust Agreement, the Escrow Agreement, the Warrant Purchase Agreement, the Insider
Letters and the Right of First Refusal Agreement and 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;
and except as would not reasonably be expected to have a Material Adverse Effect, (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, except as would not reasonably be expected to have a Material Adverse
Effect.
2.11.2 Trust Agreement. The Trust Agreement has been duly and validly authorized,
executed and delivered by the Security Corp, and constitutes the valid and binding agreement of the
Security Corp, enforceable against the Security Corp in accordance with its 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. The execution, delivery, and performance by the Security Corp of the
Trust Agreement and the consummation by the Security Corp of the transactions therein
contemplated and the compliance by the Security Corp with the terms 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 Security Corp pursuant to the terms of any agreement or instrument to
which the Security Corp is a party except pursuant to the Trust Agreement and except as would not
reasonably be expected to have a Material Adverse Effect; (ii) result in any violation of the
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provisions of the Certificate of Incorporation or the Bylaws of the Security Corp; 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 Security Corp or any of its properties
or business except as would not reasonably be expected to have a Material Adverse Effect.
2.11.3 Escrow Agreement. The Escrow Agreement has been duly and validly authorized,
executed and delivered by each of the LLM Sponsors and, to the Company’s knowledge, the other
holders of the Initial Shares and the other Placement Warrant Holders (other than the
Underwriters), and is enforceable against each of the LLM Sponsors and, to the Company’s knowledge,
the other holders of the Initial Shares and the other Placement Warrant Holders (other than the
Underwriters) in accordance with its 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.
2.11.4 Warrant Purchase Agreement. The Warrant Purchase Agreement has been duly and
validly authorized, executed and delivered by each of the LLM Sponsors and, to the Company’s
knowledge, the other Placement Warrant Holders (other than the Underwriters), and is enforceable
against each of the LLM Sponsors and, to the Company’s knowledge, the other Placement Warrant
Holders (other than the Underwriters) in accordance with its 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.
2.11.5 Insider Letters. The Insider Letter to which it or he is a party has been duly
and validly authorized, executed and delivered by each of the LLM Sponsors and, to the Company’s
knowledge, the Company’s officers and directors, and is enforceable against each of the LLM
Sponsors and, to the Company’s knowledge, the Company’s offers and directors in accordance with its
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.
2.11.6 Right of First Refusal Agreement. The Right of First Refusal Agreement has
been duly and validly authorized, executed and delivered by each of the LLM Sponsors and LLM
Capital Partners LLC, and is enforceable against each of the LLM Sponsors and LLM Capital Partners
LLC in accordance with its 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
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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.
2.12 No Defaults; Violations.
(i) No 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, except for any
such default that would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Company is not in violation of any term
or provision of its Certificate of Incorporation or Bylaws. The Company is not 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, except for any such violations that would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(ii) No 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 Security Corp is a party or by which the Security Corp may
be bound or to which any of the properties or assets of the Security Corp is
subject, except for any such default that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The Security Corp is
not in violation of any term or provision of its Certificate of Incorporation or
Bylaws. The Securities Corp. is not 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
Security Corp or any of its properties or businesses, except for any such violations
that would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
2.13 Corporate Power; Licenses; Consents.
2.13.1 Conduct of Business.
(i) The Company has all requisite corporate power and authority to conduct its
business as described in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus. The disclosures in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus concerning the effects of Federal, state
and local regulation on this Offering and
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the Company’s business purpose as
currently contemplated are correct in all material respects.
(ii) The Security Corp has all requisite corporate power and authority to
conduct its business as described in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus.
2.13.2 Transactions Contemplated Herein. The Company has all corporate power and
authority to enter into this Agreement and to carry out the provisions and conditions hereof, and
all consents, authorizations, approvals and orders required in connection therewith have been
obtained. No consent, authorization or order of, and no filing with, any court, government agency
or other body is required for the valid issuance, sale and delivery, of the Public Securities and
the consummation of the transactions and agreements contemplated by this Agreement, the Warrant
Agreement, the Trust Agreement, the Escrow Agreement and the Warrant Purchase Agreement and as
contemplated by the Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
except with respect to applicable Federal and state securities laws and the rules and regulations
promulgated by the Financial Industry Regulatory Authority (“FINRA”).
2.14 D&O Questionnaires. To the Company’s knowledge, all information contained in the
questionnaires (“Questionnaires”) completed by each of the Company’s stockholders, officers
and directors (“Insiders”) and provided to the Representative is true and correct and the
Company has not become aware of any information which would reasonably be expected to cause the
information disclosed in the questionnaires completed by each Insider to become inaccurate or
incorrect.
2.15 Litigation; Governmental Proceedings. There is no action, suit, proceeding,
inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the
Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge,
any Insider that is required to be disclosed and has not been so disclosed in the Registration
Statement, the Sale Preliminary Prospectus, the Prospectus or the Questionnaires.
2.16 Good Standing. The Company and the Security Corp have been duly organized and
are validly existing as corporations and are in good standing under the laws of each of their
respective states of incorporation, and are duly qualified to do business and are in good standing
as a foreign corporation in each jurisdiction in which such entity’s ownership or lease of property
or the conduct of business requires such qualification, except where the failure to qualify would
not reasonably be expected to have a Material Adverse Effect.
2.17 Transactions Affecting Disclosure to FINRA.
2.17.1 Finder’s Fees. There are no claims, payments, arrangements, agreements or
understandings relating to the payment of a finder’s, consulting or origination fee by the Company,
the Security Corp or any Insider with respect to the sale of the Public Securities hereunder or any
other arrangements, agreements or understandings of the Company, the Security Corp or any Insider
that may affect the Underwriters’ compensation, as determined by FINRA.
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2.17.2 Payments Within Twelve Months. Neither the Company nor the Security Corp has
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 FINRA member or (iii) to any person or entity that has any direct or indirect affiliation or
association with any FINRA member, within the twelve months prior to the Effective Date, other than
payments to the Representative in connection with the Offering.
2.17.3 Use of Proceeds. None of the net proceeds of the Offering and Private
Placement will be paid by the Company to any participating FINRA 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 Sale Preliminary Prospectus.
2.17.4 Insiders’ FINRA Affiliation. Except as disclosed in the Registration
Statement, the Sale Preliminary Prospectus, or the Prospectus, no officer, director or any
beneficial owner of the Company’s unregistered securities has any direct or indirect affiliation or
association with any FINRA member, as determined in accordance with the rules and regulations of
FINRA. The Company will advise the Representative and its counsel if it learns that any officer,
director or owner of at least 5% of the Company’s outstanding Common Stock is or becomes an
affiliate or associated person of a FINRA member participating in the Offering.
2.18 Foreign Corrupt Practices Act; Patriot Act.
2.18.1 Foreign Corrupt Practices Act. None of the Company, the Security Corp or to
the knowledge of the Company, any of the Insiders or any other person acting on behalf of the
Company has, while acting on behalf of the Company, (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; or (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977.
2.18.2 Patriot Act. Neither the Company nor any Company affiliates (including the
Security Corp) have violated: (i) the Bank Secrecy Act, as amended, (ii) the Money Laundering
Control Act of 1986, as amended, or (iii) the Uniting and Strengthening of America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,
and/or the rules and regulations promulgated under any such law, or any successor law.
2.19 Officers’ Certificate. Any certificate signed by any duly authorized officer of
the Company or the Security Corp, as applicable, and delivered to you or to your counsel shall be
deemed a representation and warranty by the Company or the Security Corp, as applicable, to the
Underwriters as to the matters covered thereby.
2.20 No Existing Non-Competition Agreements. No Insider or other employee of the
Company is subject to any non-competition agreement or non-solicitation agreement with any employer
or prior employer which could reasonably be expected to materially affect his ability to be an
employee, officer and/or director of the Company.
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2.21 Investments. The Company is not and, after giving effect to the Offering and
sale of the Public Securities and the application of the proceeds thereof as described in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended.
2.22 Subsidiaries.
(i) Other than the Security Corp, the Company does not own an interest in any
corporation, partnership, limited liability company, joint venture, trust or other
business entity.
(ii) The Security Corp does not own an interest in any corporation,
partnership, limited liability company, joint venture, trust or other business
entity.
2.23 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 Registration
Statement, the Sale Preliminary Prospectus or the Prospectus that have not been described as
required.
2.24 Data. The statistical, industry-related and market-related data included in the
Registration Statement, the Sale Preliminary Prospectus 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.
2.25 Business Combinations. The Company has not identified any target to acquire in a
Business Combination and has not, nor has anyone on its behalf, initiated any discussions, directly
or indirectly, with respect to identifying any target to acquire in a Business Combination.
2.26 Distribution of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the later of the Closing Date and the completion of
the Underwriters’ distribution of the Units, any offering material in connection with the offering
and sale of the Units other than the Sale Preliminary Prospectus and the Prospectus, in each case
as supplemented and amended.
2.27 No Transfer Taxes. There are no transfer taxes or other similar fees or charges
under federal law or the laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this Agreement or the issuance by
the Company or sale by the Company of the Units.
2.28 Tax Law Compliance.
(i) The Company has filed all federal, state, local and foreign income and
franchise tax returns that are required to be filed by it or has requested
extensions thereof (except in any case in which the failure to so file would not
reasonably be expected to have a Material Adverse Effect) and has paid all taxes
required to be paid by it and, if due and payable, any related or similar
assessment, fine or penalty levied against it, except for any taxes, assessments,
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fines or penalties as may be being contested in good faith and by appropriate
proceedings or as would not reasonably be expected to have a Material Adverse
Effect.
(ii) The Security Corp has filed all federal, state, local and foreign income
and franchise tax returns that are required to be filed by it or has requested
extensions thereof (except in any case in which the failure to so file would not
reasonably be expected to have a Material Adverse Effect) and has paid all taxes
required to be paid by it and, if due and payable, any related or similar
assessment, fine or penalty levied against it, except for any taxes, assessments,
fines or penalties as may be being contested in good faith and by appropriate
proceedings or as would not reasonably be expected to have a Material Adverse
Effect.
2.29 Ineligible Issuer. At the time of filing the Registration Statement and at the
date hereof, the Company was and is an “ineligible issuer,” as defined in Rule 405 under the
Securities Act. The Company has not made any offer relating to the Public Securities that would
constitute an “issuer free writing Prospectus,” as defined in Rule 433, or that would otherwise
constitute a “free writing Prospectus,” as defined in Rule 405.
2.30 Business Purposes. The nature of the business, or purposes to be conducted or
promoted by the Security Corp, shall be limited solely to hold and invest in permissible securities
as described in the Prospectus and make distributions to the Company and its stockholders in
accordance with the provisions in the Trust Agreement and the Prospectus. The charter of the
Security Corp is limited to such purposes and may not be amended or modified except upon the
consummation of a Business Combination.
3. Covenants of the Company. The Company covenants and agrees with the Underwriters
as follows:
3.1 Amendments or Supplements to Registration Statement or Prospectus. The Company
will deliver to the Representative, prior to filing, any amendment or supplement to the
Registration Statement or Prospectus or Rule 462(b) Registration Statement proposed to be filed
after the Effective Date and the Company shall not file any such amendment or supplement or Rule
462(b) Registration Statement to which the Representative shall reasonably object.
3.2 Federal Securities Laws.
3.2.1 Compliance.
(i) During the time when a prospectus relating to the Public Securities 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.
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(ii) If at any time prior to the filing of the Prospectus pursuant to the
requirements of Rule 424 of the Regulations any event shall have occurred as a
result of which, in the reasonable opinion of counsel for the Company or counsel for
the Underwriters, the Sale Preliminary 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, the Company will
notify the Representative promptly so that the use of the Sale Preliminary
Prospectus may cease until it is amended or supplemented and prepare and file with
the Commission, subject to Section 3.1 hereof, an appropriate amendment or
supplement in accordance with the Act.
(iii) If at any time when a prospectus relating to the Public Securities is
required to be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Act), any event shall
have occurred as a result of which, in the reasonable 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 Registration Statement or 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 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. The Company will use its best efforts to maintain
the registration of the Public Securities under the provisions of the Exchange Act (except in
connection with a going-private transaction) for a period of five years from the Effective Date, or
until the Company is required to be liquidated if earlier, or, in the case of the Warrants, until
the Warrants expire and are no longer exercisable. The Company will not
deregister the Public Securities under the Exchange Act without the prior written consent of
the Representative.
3.3 Ineligible Issuer. The Company will not make any offer relating to the Public
Securities that would constitute an “issuer free writing Prospectus,” as defined in Rule 433, or
that would otherwise constitute a “free writing Prospectus,” as defined in Rule 405.
3.4 Blue Sky Filings. 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
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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. The Company shall pay all filings fees in connection
with the qualification of the securities under the securities laws of such jurisdictions as the
Representative may reasonably designate.
3.5 Delivery to Underwriters of Preliminary Prospectus, Sale Preliminary Prospectus and
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, Sale Preliminary
Prospectus and 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 a copy
of all original executed consents of certified experts.
3.6 Effectiveness and Events Requiring Notice to the Representative. The Company will
use its reasonable efforts to cause the Registration Statement to remain effective and will notify
the Representative immediately and confirm the notice in writing (i) of the effectiveness of the
Registration Statement and any amendment thereto, (ii) of the issuance by the Commission of any
stop order or of the initiation, or the threatening, of any proceeding for that purpose, (iii) of
the issuance by any state securities commission of any proceedings for the suspension of the
qualification of the Public Securities for offering or sale in any jurisdiction or of the
initiation, or the threatening, of any proceeding for that purpose, (iv) of the mailing and
delivery to the Commission for filing of any amendment or supplement to the Registration Statement
or Prospectus, (v) of the receipt of any comments or request for any additional information from
the Commission, and (vi) of the happening of any event during the period described in Section
3.2.1(i) hereof that, in the judgment of the Company or its counsel, makes any statement of a
material fact made in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus
untrue or that requires the making of any changes in the Registration Statement, the Sale
Preliminary Prospectus 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.
3.7 Review of Quarterly Financial Statements. Until the earlier of five years from
the consummation of Business Combination, or such time upon which the Company is required to cease
all operations and redeem all of the Public Common Stock, the Company, at its expense, shall cause
its regularly engaged independent registered public accounting firm 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.
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3.8 Affiliated Transactions.
3.8.1 Business Combinations. The Company will not consummate a Business Combination
with any entity which is affiliated with any Insider unless the Company obtains an opinion from an
independent investment banking firm that is a member of FINRA that the Business Combination is fair
to the Company’s stockholders from a financial perspective. No Insider or any affiliate of an
Insider shall receive any fees of any type (other than reimbursement of ordinary and customary
expenses incurred on behalf of the Company) in connection with any Business Combination.
3.8.2 Compensation to Insiders. Other than payments made pursuant to the terms of
that certain Administrative Services Agreement, dated as of _________, 2010 and except as set forth
above in this Section 3.8, the Company shall not pay any of the Insiders or any of their affiliates
any fees or compensation from the Company, for services rendered to the Company prior to, or in
connection with, the consummation of a Business Combination; provided that the Insiders shall be
entitled to reimbursement from the Company for their reasonable out-of-pocket expenses incurred in
connection with seeking and consummating a Business Combination and may be repaid loans as
described in the Registration Statement.
3.9 Reports to the Representative.
3.9.1 Periodic Reports, Etc. For a period of five years from the consummation of a
Business Combination or until such earlier time upon which the Company is required to cease all
operations and redeem all of the Public Common Stock, the Company will furnish to the
Representative (Attn: Xxxx Xxxxxx) and its counsel copies of such financial statements and other
periodic and special reports as the Company from time to time furnishes generally to holders of any
class of its securities, and promptly furnish to the Representative (i) a copy of each periodic
report the Company shall be required to file with the Commission, (ii) a copy of every press
release and every news item and article with respect to the Company or its affairs which was
released by the Company, (iii) a copy of each Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4
received or prepared by the Company, and (iv) two (2) copies of each registration statement filed
by the Company with the Commission under the Securities Act. Documents filed with the Commission
pursuant to its XXXXX system and press releases, news
items or articles that are released over newswires, or are otherwise made publicly available
shall be deemed to have been delivered to the Representative and its counsel pursuant to this
Section.
3.9.2 Transfer Sheets. For a period of two years following the Effective Date or
until such earlier time upon which the Company is required to be liquidated, the Company shall
retain CST or another transfer and warrant agent acceptable to the Representative (“Transfer
Agent”) and will furnish to the Underwriters at the Company’s sole cost and expense, for a
period of one year following the Effective Date, such transfer sheets of the Company’s securities
as the Representative may request, including the daily and monthly consolidated transfer sheets of
the Transfer Agent and DTC. The Underwriters acknowledge that CST is an acceptable Transfer Agent.
3.9.3 Secondary Market Trading Maintenance. Unless the Public Securities are listed
or quoted, as the case may be, on the New York Stock Exchange, the American Stock Exchange or
quoted on the NASDAQ Global Market or NASDAQ Capital
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Market, until such earlier time upon which the
Company is required to cease all operations and redeem all of the Public Common Stock or upon
consummation of a Business Combination, the Company shall at the beginning of each fiscal quarter
determine whether there has been any change in the states in which the Public Securities may be
traded in non-issuer transactions under the Blue Sky laws of the fifty States and provide the
Representative with a written report of any such change.
3.9.4 Trading Reports. During such time as any of the Public Securities are quoted on
the OTC Bulletin Board (or any successor trading market such as the Bulletin Board Exchange) or the
Pink Sheets, LLC (or similar publisher of quotations) and no other automated quotation system prior
to the fifth anniversary of the consummation of a Business Combination, the Company shall provide
to the Representative, at its expense, such reports published by the OTC Bulletin Board or the Pink
Sheets, LLC relating to price trading of the Public Securities, as the Representative shall
reasonably request.
3.9.5 Disqualification of Form S-3. Until the earlier of six years and six months
from the date hereof or until the Warrants have expired and are no longer exercisable, the Company
will not take any action or actions which are reasonably likely to prevent or disqualify the
Company’s use of Form S-3 for the registration of the shares of Common Stock issuable upon exercise
of the Warrants (except in connection with a going-private transaction).
3.10 Payment of Expenses.
3.10.1 General Expenses Related to the Offering. The Company hereby agrees to pay on
each of the Closing Date and the Option Closing Date, if any, to the extent not paid at Closing
Date, all expenses incident to the performance of the obligations of the Company under this
Agreement, including but not limited to (i) the preparation, printing, filing and mailing
(including the payment of postage with respect to such mailing) of the Registration Statement, each
Preliminary Prospectus and the Prospectus and the printing and mailing of this Agreement and
related documents, including the cost of all copies thereof and any amendments thereof or
supplements thereto supplied to the Underwriters in quantities as may be reasonably required by the
Underwriters, (ii) the printing, engraving, issuance and delivery of the Units, the shares of
Common Stock and the Warrants included in the Units, including any transfer or other taxes
payable thereon, (iii) filing fees and reasonable legal fees and expenses of counsel incurred in
(A) making required filings with FINRA and (B) qualifying the Public Securities under state or
foreign securities or Blue Sky laws, (iv) fees, costs and expenses incurred in procuring the
quotation of the Public Securities on the OTC Bulletin Board, (v) fees and disbursements of the
transfer and warrant agent, (vi) the Company’s expenses associated with “due diligence” and “road
show” meetings arranged by the Representative, (vii) the preparation, binding and delivery of one
(1) velo-bound transaction closing sets,” to the extent that such closing sets are also being
prepared for the Company, and (viii) all other actual documented costs and expenses customarily
borne by an issuer incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 3.10.1. The Company also agrees that, if requested by
the Representative, it will engage and pay up to an aggregate amount of $5,000 for an investigative
search firm of the Representative’s choice to conduct an investigation of the principals of the
Company as shall be mutually selected by the Representative and the Company, which aggregate amount
shall also cover such other amounts for additional investigative work that the Company and the
Representative mutually agree requires further clarification and/or
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documentation. The
Representative may deduct from the net proceeds of the Offering payable to the Company on the
Closing Date, or the Option Closing Date, if any, the expenses set forth in this Agreement to be
paid by the Company to the Representative and others.
3.10.2 If the Offering is not Consummated. If the Offering contemplated by this
Agreement is not consummated because any condition to the obligations of the Underwriters set forth
in Section 4 hereof is not satisfied, because of any termination pursuant to Section 9.2(i) or (ii)
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through the Representative
on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel,
“road show” and due diligence expenses) that shall have been incurred by them in connection with
the proposed Offering.
3.10.3 Expenses Related to Business Combination. The Company further agrees that, in
the event the Representative assists the Company in connection with the consummation of a proposed
Business Combination, the Company agrees to reimburse the Representative for all reasonable
out-of-pocket expenses, including, but not limited to, “road-show” and due diligence expenses,
provided that the Representative shall have received the Company’s prior written consent with
respect to any individual expense greater than $1,000.
3.11 Application of Net Proceeds. The Company will cause the Security Corp to apply
the net proceeds from the Offering and Private Placement received by it in a manner consistent with
the application described under the caption “Use of Proceeds” in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus.
3.12 Delivery of Earnings Statements to Security Holders. The Company will make
generally available to its security holders as soon as practicable, but not later than the first
day of the fifteenth full calendar month following the Effective Date, an earnings statement (which
need not be certified by independent public or independent certified public accountants unless
required by the Act or the Regulations, but which shall satisfy the provisions of Rule
158(a) under Section 11(a) of the Act) covering a period of at least twelve consecutive months
beginning after the Effective Date.
3.13 Notice to FINRA. For a period of 90 days following the Effective Date, in the
event any person or entity (regardless of any FINRA affiliation or association) is engaged to
assist the Company in its search for a merger candidate or to provide any other merger and
acquisition services, the Company will provide the following to FINRA and to the Representative
prior to the consummation of the Business Combination: (i) complete details of all services and
copies of agreements governing such services; and (ii) justification as to why the person or entity
providing the merger and acquisition services should not be considered an “underwriter and related
person” with respect to the Company’s initial public offering, as such term is defined in Rule 5110
of the FINRA Manual. The Company also agrees that proper disclosure of such arrangement or
potential arrangement will be made in the tender offer documents or proxy statement which the
Company will file in connection with the Business Combination.
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3.14 Stabilization. Neither the Company, nor, to its knowledge, any of its
employees, directors or stockholders (without the consent of the Representative) has taken or will
take, directly or indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Public Securities.
3.15 Existing Lock-Up Agreement. The Company will use reasonable efforts to enforce
all existing agreements between the Company and any of its security holders that prohibit the sale,
transfer, assignment, pledge or hypothecation of any of the Public Securities in connection with
the Offering. In addition, the Company will direct the Transfer Agent to place stop transfer
restrictions upon any such Securities of the Company that are bound by such existing “lock-up”
agreements for the duration of the periods contemplated in such agreements.
3.16 Payment of Contingent Fees on Business Combination. Upon the consummation of a
Business Combination, the Company agrees that it will pay the Contingent Fees out of funds in the
Trust Account delivered to the Company in accordance with Section 1.1.3.
3.17 Internal Controls. The Company will maintain 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 in order to permit preparation of financial statements in accordance with generally
accepted accounting principles 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.
3.18 Accountants. Until the earlier of five years from the Effective Date or until
such earlier time upon which the Company is required to cease all operations and redeem the Public
Common Stock, the Company shall retain RK & Co. or another independent registered public accounting
firm reasonably acceptable to the Representative.
3.19 Form 8-K. The Company shall, on the date hereof, retain its independent
registered public accounting firm to audit the financial statements of the Company as of the
Closing Date (“Audited Financial Statements”) reflecting the receipt by the Company of the
proceeds of the Offering. As soon as the Audited Financial Statements become available, the
Company shall as soon as practicable file a Current Report on Form 8-K with the Commission, which
Report shall contain the Company’s Audited Financial Statements.
3.20 FINRA. The Company shall advise FINRA if it is aware that any 5% or greater
stockholder of the Company becomes an affiliate or associated person of a FINRA member
participating in the distribution of the Public Securities.
3.21 Investment Company. The Company shall cause the proceeds of the Offering to be
held in the Trust Account to be invested only in “government securities” with specific maturity
dates or in money market funds as set forth in the Trust Agreement and disclosed in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus. The
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Company will
otherwise conduct its business in a manner so that it will not become subject to
the Investment Company Act of 1940, as amended. Furthermore, once the Company consummates a
Business Combination, it will be engaged in a business other than that of investing, reinvesting,
owning, holding or trading securities.
3.22 Colorado Trust Filing. In the event the Public Securities are registered in the
State of Colorado, the Company will cause a Colorado Form ES to be filed with the Commissioner of
the State of Colorado no less than 10 days prior to the distribution of the Trust Account in
connection with a Business Combination and will do all things necessary to comply with Section
00-00-000 and Rule 51-3.4 of the Colorado Securities Act.
3.23 Amendments to Certificate of Incorporation.
3.23.1 The Company covenants and agrees, that prior to its initial Business Combination it
will not seek to amend or modify its Certificate of Incorporation, including, but not limited to
provisions (A) through (K) of Article Sixth of its Certificate of Incorporation without the prior
written consent of the Representative.
3.23.2 The Company acknowledges that the purchasers of the Public Securities in the Offering
shall be deemed to be third party beneficiaries of this Agreement and specifically this Section
3.23.
3.23.3 The Representative specifically advises the Company that it will not waive this Section
3.23 under any circumstances.
3.24 Amendments to Agreements. The Company shall not amend, modify or otherwise
change the Warrant Agreement, Trust Agreement, Escrow Agreement, Warrant Purchase Agreement, any
Insider Letter or the Right of First Refusal Agreement without the prior written consent of the
Representative.
3.25 Private Placement Proceeds. At or prior to the Closing Time, the Company shall
deposit $2,666,667 of the proceeds from the Private Placement in the Trust Account and shall
provide the Representative with evidence of the same.
3.26 Mergers, Consolidations, etc. The Company shall not cause the Security Corp to,
and the Security Corp shall not be permitted to, (i) merge into or consolidate with any person or
entity or, to the fullest extent permitted by law, dissolve, terminate or liquidate in whole or in
part, transfer or otherwise dispose of all or substantially all of its assets or change its legal
structure, except (a) in connection with the consummation of Business Combination, or (b) in
connection with the liquidation of the Company in the event Business Combination is not completed
within 18 months from the closing of the Company’s initial public offering; (ii) commingle its
assets with the assets of, or participate in a cash management system with, the Company, the LLM
Sponsors, their affiliates, or any other person or entity; (iii) guarantee or become obligated for
the debts of any other person or entity or hold itself out to be responsible for the debts of
another person or entity; (iv) make any loans or advances to any third party, including the
Company, the LLM Sponsors, and each of their affiliates; or (v) pledge its assets for the benefit
of any other person or entity.
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4. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters to purchase and pay for the Units, as provided herein, shall be subject to the
continuing accuracy of the representations and warranties of the Company as of the date hereof
and as of each of the Closing Time and the Option Closing Time, if any, to the accuracy of the
statements of officers of the Company made in certificates delivered pursuant to the provisions
hereof and to the performance by the Company of its obligations hereunder and to the following
conditions:
4.1 Regulatory Matters.
4.1.1 Effectiveness of Registration Statement and Filing of Prospectus.
(i) The Registration Statement shall have become effective not later than 5:00
p.m., New York time, on the date of this Agreement or such later date and time as
shall be consented to in writing by you, and, at each of the Closing Time and the
Option Closing Time;
(ii) No stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or shall have been threatened in writing by the Commission and any
request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of XxXxxxxxx, counsel to the
Underwriters;
(iii) No order suspending the sale of the Units in any jurisdiction designated
by you pursuant to Section 3.4 hereof shall be in effect either on the Closing Date
or the Option Closing Date, and no proceedings for that purpose shall have been
instituted or shall have been threatened in writing; and
(iv) The Prospectus, and any supplement thereto, shall have been filed in the
manner and within the time period required by Rule 424(b).
4.1.2 FINRA Clearance. By the Effective Date, the Representative shall have received
clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as
described in the Registration Statement.
4.1.3 The OTC Bulletin Board. The Securities shall have been approved for quotation
on the OTC Bulletin Board.
4.2 Company Counsel Matters.
4.2.1 Closing Date and Option Closing Date Opinion of Counsel. At the Closing Time
and the Option Closing Time, if any, the Representative shall have received the favorable opinion
of Xxxxxxx Procter LLP, dated the Closing Date or the Option Closing Date, as the case may be,
addressed to the Representative and in form and substance reasonably satisfactory to XxXxxxxxx.
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4.2.2 Reliance. In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws other than the laws of the United States and jurisdictions in
which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to XxXxxxxxx) of other counsel reasonably acceptable to
XxXxxxxxx, familiar with the applicable laws, and (ii) as to matters of fact, to the extent they
deem proper, on certificates or other written statements of officers of the Company and officers of
departments of various jurisdictions having custody of documents respecting the corporate existence
or good standing of the Company, provided that copies of any such statements or certificates shall
be delivered to the Underwriters’ counsel if requested.
4.3 Cold Comfort Letter. At the time this Agreement is executed, and at each of the
Closing Time and the Option Closing Time, if any, you shall have received a letter, addressed to
the Representative and in form and substance satisfactory in all respects (including the
non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to you
and to XxXxxxxxx from RK & Co. dated, respectively, as of the date of this Agreement and as of the
Closing Date and the Option Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the
Company within the meaning of the Act and the applicable Regulations and that they
have not, during the periods covered by the financial statements included in the
Preliminary Prospectus, Sale Preliminary 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;
(ii) Stating that in their opinion the financial statements of the Company
included in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus comply as to form in all material respects with the applicable accounting
requirements of the Act and the published Regulations thereunder;
(iii) Stating that, on the basis of their review which included a reading of
the latest available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the stockholders and board
of directors and the various committees of the board of directors, consultations
with officers and other employees of the Company responsible for financial and
accounting matters and other specified procedures and inquiries, nothing has come to
their attention which would lead them to believe that (a) the unaudited financial
statements of the Company included in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the Regulations
or are not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements of the Company included in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, or (b) at a date not later than five days
prior to the Effective Date, Closing Date or Option Closing Date, as the case may
be, there was any change in the capital stock or long-term debt of the Company, or
any decrease in the stockholders’
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equity of the Company as compared with amounts
shown in the [•], 2010 balance sheet included in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus, other than as set forth in or
contemplated by the Registration Statement, the Sale Preliminary Prospectus and the Prospectus or, if there was
any decrease, setting forth the amount of such decrease, and (c) during the period
from [•], 2010 to a specified date not later than five days prior to the Effective
Date, Closing Date or Option Closing Date, as the case may be, there was any
decrease in revenues, net earnings or net earnings per share of Common Stock, in
each case as compared with the corresponding period in the preceding year and as
compared with the corresponding period in the preceding quarter, other than as set
forth in or contemplated by the Registration Statement the Sale Preliminary
Prospectus and the Prospectus, or, if there was any such decrease, setting forth the
amount of such decrease;
(iv) Setting forth, at a date not later than five days prior to the Effective
Date, the amount of liabilities of the Company (including a break-down of commercial
papers and notes payable to banks);
(v) Stating that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, statements and other financial information
pertaining to the Company set forth in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus in each case to the extent that such
amounts, numbers, percentages, statements and information may be derived from the
general accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results obtained
from the application of specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an examination in accordance with
generally accepted auditing standards) set forth in the letter and found them to be
in agreement;
(vi) Stating that they have not, since the Company’s incorporation, brought to
the attention of the Company’s management any reportable condition related to
internal structure, design or operation as defined in the Statement on Auditing
Standards No. 60 “Communication of Internal Control Structure Related Matters Noted
in an Audit,” in the Company’s internal controls; and
(vii) Statements as to such other matters incident to the transaction
contemplated hereby as you may reasonably request.
4.4 Officers’ Certificates.
4.4.1 Officers’ Certificate. At each of the Closing Time and the Option Closing Time,
if any, the Representative shall have received a certificate of the Company signed by the Chairman
of the Board or the President and the Secretary or Assistant Secretary of the Company (in their
capacities as such), dated the Closing Date or the Option Closing Date, as the case may be,
respectively, to the effect that:
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(i) the Company has performed all covenants and complied with all conditions
required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date, or the Option Closing Date,
as the case may be;
(ii) that the conditions set forth in Section 4.1.1(ii) and (iii) and Section
4.5 hereof have been satisfied as of such date and that, as of the Closing Time and
the Option Closing Time, as the case may be; and
(iii) the representations and warranties of the Company set forth in Section 2
hereof are true and correct as of the Closing Time and the Option Closing Time, as
the case may be.
4.4.2 Secretary’s Certificate. At each of the Closing Time and the Option Closing
Time, if any, the Representative shall have received a certificate of the Company signed by the
Secretary or Assistant Secretary of the Company, dated the Closing Date or the Option Date, as the
case may be, respectively, certifying (i) that the Bylaws and Certificate of Incorporation of the
Company are true and complete, have not been modified and are in full force and effect, (ii) that
the resolutions relating to the public offering contemplated by this Agreement are in full force
and effect and have not been modified, (iii) all correspondence between the Company or its counsel
and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents
referred to in such certificate shall be attached to such certificate.
4.5 No Material Changes. Prior to and on each of the Closing Date and the Option
Closing Date, if any, no events or circumstances shall have occurred which have, or are reasonably
expected to have, a Material Adverse Effect.
4.6 Delivery of Agreements and other Information.
4.6.1 Effective Date Deliveries. On the Effective Date, the Company shall have
delivered to the Representative executed copies of the Escrow Agreement, the Trust Agreement, the
Warrant Agreement, all of the Insider Letters, the Warrant Purchase Agreement and the Right of
First Refusal Agreement.
4.6.2 Other Information. At each of the Closing Time and the Option Closing Time, if
any, the Representative will have received such other and further information, certificates of
officers of the Company (in their capacities as such) and documents as the Representative may
reasonably request.
4.7 Opinion of Counsel for the Underwriters. All proceedings taken in connection with
the authorization, issuance or sale of the Public Securities as herein contemplated shall be
reasonably satisfactory in form and substance to you and to XxXxxxxxx and you shall have received
from such counsel a favorable opinion, dated the Closing Date and the Option Closing Date, if any,
with respect to such of these proceedings as you may reasonably require. On or prior to the
Effective Date, the Closing Date and the Option Closing Date, as the case may be, counsel for the
Underwriters shall have been furnished such documents, certificates and opinions as they may
reasonably require for the purpose of enabling them to review or pass
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upon the matters referred to
in this Section 4.7, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein
contained.
4.8 Secondary Market Trading. On or before the Effective Date, the Company shall
provide the Representative with a written report detailing those states in which the Public
Securities may be traded in non-issuer transactions under the Blue Sky laws of the fifty States.
5. Indemnification.
5.1 Indemnification of Underwriters.
5.1.1 General. Subject to the conditions set forth below, the Company agrees to
indemnify and hold harmless each of the Underwriters, and each of their respective directors,
officers and employees and each person, if any, who controls any such Underwriter (“controlling
person”) within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all loss, liability, claim, damage and expense whatsoever as incurred to which they or any
of them may become subject under the Act, the Exchange Act or any other Federal or state statute or
at common law or otherwise or under the laws of foreign countries, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Sale Preliminary Prospectus, the Prospectus (as from
time to time each may be amended and supplemented, including, but not limited to any information
deemed to be a part thereof pursuant to Rule 430A, Rule 430B or Rule 430C, as applicable) or any
materials or information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Public Securities, including any “road show”
or investor presentations made to investors by the Company (whether in person or electronically),
or the omission or alleged omission from any Preliminary Prospectus, the Registration Statement,
the Sale Preliminary Prospectus, the Prospectus or such other materials or information of a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and to reimburse each
Underwriter, and each of their respective directors, officers and employees and each controlling
person, if any, for any and all expenses (including the fees and disbursements of one counsel
chosen by Xxxxxx Xxxxxx LLC) as such expenses are reasonably incurred by such Underwriter, or each
of their respective directors, officers and employees or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim damage, liability,
expense or action; provided however, that the foregoing indemnity agreement shall not apply to any
loss, claim, damage, liability or expenses to the extent, but only to the extent, arising out of or
based upon (x) any untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to the Company with
respect to an Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary
Prospectus, the Registration Statement, the Sale Preliminary Prospectus, the Prospectus or such
other materials or information, or any amendment thereof or supplement thereto, as the case may be,
it being understood and agreed that the only such information furnished by the Representative
consists of the information described as such in Section 5.2 hereof; or (y) the use of the Sale
Preliminary Prospectus or Prospectus in violation of any stop order or other notice received by any
Underwriter indicating the then current Prospectus is not to
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be used in connection with the sale of
any Securities. The Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or
any of its officers, directors or controlling persons in connection with the issue and sale of the
Public Securities or in connection with the Registration Statement, the Sale Preliminary Prospectus
or the Prospectus. The indemnity agreement set forth in this Section 5.1 shall be in addition to
any liabilities that the Company may otherwise have.
5.2 Indemnification of the Company. Each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the foregoing indemnity from the Company to the
several Underwriters, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions made in any Preliminary Prospectus, the Registration
Statement, the Sale Preliminary Prospectus, the Prospectus or any amendment thereof or supplement
thereto, in reliance upon, and in strict conformity with, written information furnished to the
Company with respect to such Underwriter by or on behalf of the Underwriter expressly for use in
such Preliminary Prospectus, the Registration Statement, the Sale Preliminary Prospectus, the
Prospectus or any amendment thereof or supplement thereto; and to reimburse the Company or any such
director, officer or controlling person, if any, for any and all expenses as such expenses are
reasonably incurred, in connection with investigating, defending, settling, compromising or paying
any such loss, claim damage, liability, expense or action. The Company hereby acknowledges that
the only information that the Underwriters have furnished to the Company expressly for use in the
Preliminary Prospectus, the Registration Statement, the Sale Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto or in any such application, are the statements set forth in
the paragraphs entitled “Pricing of Securities,” “Over Allotment and Stabilizing Transactions,” and
“Commissions and Discounts” under the caption “Underwriting” in the Prospectus. The indemnity
agreement set forth in this Section 5.2 shall be in addition to any liabilities that each
Underwriter may otherwise have.
5.3 Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 5 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 5, notify the indemnifying party in writing of the commencement thereof, but the
failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph
5.1 or 5.2 above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph 5.1 or 5.2 above. In case any
such action is brought against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate
in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the indemnifying party and
the indemnified party in
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conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party’s election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 5 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the provision to the
preceding sentence reasonably approved by the indemnifying party (or by Xxxxxx Xxxxxx LLC in the
case of Section 5.2), representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
5.4 Settlements. The indemnifying party under this Section 5 shall not be liable for
any settlement of any proceeding effected without its written consent, which shall not be withheld,
delayed or conditioned unreasonably, but if settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 5.3 hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
5.5 Contribution.
5.5.1 Contribution Rights. In order to provide for just and equitable contribution
under the Act in any case in which (i) any person entitled to indemnification under this Section 5
makes claim for indemnification pursuant hereto but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 5 provides for indemnification in such case, or
(ii) contribution under the Act, the Exchange Act or otherwise may be required on the part of any
such person in circumstances for which indemnification is provided under this Section 5, then, and
in each such case, the Company and the Underwriters shall contribute to the
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aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus bears to the initial
offering price appearing thereon and the Company is responsible for the balance; provided, that, no
person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriters shall contribute in such proportion as is
appropriate to reflect the relative fault of the Company and the Underwriters in connection with
the actions or omissions which resulted in such loss, claim, damage, liability or action, as well
as any other relevant equitable considerations. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the provisions of this Section 5.5.1, no Underwriter shall be required
to contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Public Securities underwritten by it and distributed to the public. For
purposes of this Section, each director, officer and employee of an Underwriter or the Company, as
applicable, and each person, if any, who controls an Underwriter or the Company, as applicable,
within the meaning of Section 15 of the Act shall have the same rights to contribution as the
Underwriters or the Company, as applicable.
5.5.2 Contribution Procedure. Within fifteen days after receipt by any party to this
Agreement (or its representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made against another party
(“contributing party”), notify the contributing party of the commencement thereof, but the
omission to so notify the contributing party will not relieve it from any liability which it may
have to any other party other than for contribution hereunder. In case any such action, suit or
proceeding is brought against any party, and such party notifies a contributing party or its
representative of the commencement thereof within the aforesaid fifteen days, the contributing
party will be entitled to participate therein with the notifying party and any other contributing
party similarly notified. Any such contributing party shall not be liable to any party seeking
contribution on account of any settlement of any claim, action or proceeding effected by such party
seeking contribution on account of any settlement of any claim, action or proceeding effected by
such party seeking contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to supersede, to the extent
permitted by law, any right to contribution under the Act, the Exchange Act or otherwise available.
The Underwriters’ obligations to contribute pursuant to this Section 5.5 are several and not
joint.
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6. Default by an Underwriter.
6.1 Default Not Exceeding 10% of Firm Units or Option Units. If any Underwriter or
Underwriters shall default in its or their obligations to purchase the Firm Units or the Option
Units, if the Over-Allotment Option is exercised, hereunder, and if the number of the Firm Units or
Option Units with respect to which such default relates does not exceed in the aggregate 10% of the
number of Firm Units or Option Units that all Underwriters have agreed to purchase hereunder, then
such Firm Units or Option Units to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default Exceeding 10% of Firm Units or Option Units. In the event that the
default addressed in Section 6.1 above relates to more than 10% of the Firm Units or Option Units,
you may in your discretion arrange for yourself or for another party or parties to purchase such
Firm Units or Option Units to which such default relates on the terms contained herein. If within
one Business Day after such default relating to more than 10% of the Firm Units or Option Units you
do not arrange for the purchase of such Firm Units or Option Units, then the Company shall be
entitled to a further period of one Business Day within which to procure another party or parties
to purchase said Firm Units or Option Units on such terms, unless you are not the defaulting
Underwriter and you reasonably conclude that the purchase by such other party or parties would
result in a violation by any Underwriter of any law or regulation applicable to it. In the event
that neither you nor the Company arrange for the purchase of the Firm Units or Option Units to
which a default relates as provided in this Section 6, this Agreement will be terminated by you or
the Company without liability on the part of the Company (except as provided in Sections 3.10.2 and
5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided, however,
that if such default occurs with respect to the Option Units, this Agreement will not terminate as
to the Firm Units; and provided further that nothing herein shall relieve a defaulting Underwriter
of its liability, if any, to the other several Underwriters and to the Company for damages
occasioned by its default hereunder.
6.3 Postponement of Closing Date. In the event that the Firm Units or Option Units to
which the default relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties as aforesaid, you or the Company shall have the right to
postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event
exceeding five Business Days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any amendment to the
Registration Statement or the Prospectus that in the opinion of counsel for the Underwriters may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include
any party substituted under this Section 6 with like effect as if it had originally been a party to
this Agreement with respect to such Securities.
7. Additional Covenants.
7.1 Additional Shares or Options. The Company hereby agrees that until the
consummation of a Business Combination, it shall not issue any shares of Common Stock (except with
respect to any exercise of Warrants) or any options or other securities convertible into Common
Stock, or any shares of preferred stock or other Securities of the Company which
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participate in any manner in the Trust Account or which vote as a class with the Common Stock
on a Business Combination.
7.2 Trust Account Waiver Acknowledgment. The Company hereby agrees that it will use
its reasonable efforts prior to engaging in discussions with any person or entity with which the
Company seeks to consummate a Business Combination (“Target”) or prior to the Company or
the Security Corp obtaining the services of any vendor to acknowledge in writing whether through a
letter of intent, memorandum of understanding or other similar document (and subsequently
acknowledges the same in any definitive document replacing any of the foregoing), that (a) it has
read the Prospectus and understands that the Company has established the Trust Account, initially
in an amount of $[•] (without giving effect to any exercise of the Over-allotment Option) for the
benefit of the public stockholders and that, except for a portion of the interest earned on the
amounts held in the Trust Account, the Company may disburse monies from the Trust Account only (i)
to the holders of the Public Common Stock in the event they elect to redeem their shares of Public
Common Stock in connection with the consummation of a Business Combination, (ii) to the holders of
the Public Common Stock if the Company fails to consummate a Business Combination within 18 months
from the date of the Prospectus, or (iii) to the Company after or concurrently with the
consummation of a Business Combination and (b) for and in consideration (i) of the Company agreeing
to evaluate such Target for purposes of consummating a Business Combination with it or (ii) of the
Company or the Security Corp agreeing to engage the services of the vendor, as the case may be,
such Target or vendor agrees that it does not have any right, title, interest or claim of any kind
in or to any monies in the Trust Account (“Claim”) and waives any Claim it may have in the
future as a result of, or arising out of, any negotiations, contracts or agreements with the
Company or the Security Corp and will not seek recourse against the Trust Account for any reason
whatsoever. The foregoing letters shall substantially be in the form attached hereto as Exhibits A
and B respectively. The Company may forego obtaining such waivers only if the Company shall have
received the approval of its Chief Executive Officer and the approving vote or written consent of
at least a majority of its Board of Directors.
7.3 Insider Letters. The Company shall not take any action or omit to take any action
which would reasonably be expected to cause a breach of any of the Insider Letters and will not
allow any amendments to, or waivers of, such Insider Letters without the prior written consent of
the Representative.
7.4 Certificate of Incorporation and Bylaws. The Company shall not take any action or
omit to take any action that would reasonably be expected to cause the Company to be in breach or
violation of its Certificate of Incorporation or Bylaws.
7.5 Acquisition/Liquidation Procedure. The Company agrees that it will comply with
provisions (A) through (K) of Article Sixth of its Certificate of Incorporation in connection with
the consummation of a Business Combination or the failure to consummate a Business Combination
within eighteen (18) months from the date of the Prospectus.
7.6 Rule 419. The Company agrees that it will use its reasonable efforts to prevent
the Company from becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including but not limited to using its reasonable
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efforts to prevent any of the Company’s outstanding securities from being deemed to be a
“xxxxx stock” as defined in Rule 3a-51-1 under the Exchange Act during such period.
7.7 Tender Offer Documents, Proxy Materials and Other Information. The Company shall
provide counsel to the Representative with ten copies of all tender offer documents or proxy
information and all related material filed with the commission in connection with a Business
Combination concurrently with such filing with the commission. In addition, the Company shall
furnish any other state in which its initial public offering was registered, such information as
may be requested by such state.
8. Representations and Agreements to Survive Delivery. Except as the context
otherwise requires, all representations, warranties and agreements contained in this Agreement
shall be deemed to be representations, warranties and agreements as of the Closing Dates and such
representations, warranties and agreements of the Underwriters and the Company, including the
indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter, the Company or any
controlling person, and shall survive termination of this Agreement or the issuance and delivery of
the Public Securities to the several Underwriters until the earlier of the expiration of any
applicable statute of limitations and the seventh anniversary of the later of the Closing Date or
the Option Closing Date, if any, at which time the representations, warranties and agreements shall
terminate and be of no further force and effect.
9. Effective Date of This Agreement and Termination Thereof.
9.1 Effective Date. This Agreement shall become effective on the Effective Date at
the time the Registration Statement is declared effective by the Commission.
9.2 Termination. You shall have the right to terminate this Agreement at any time
prior to the Closing Date if (i) trading in the Company’s Units, Common Stock or Warrants shall
have been suspended by the Commission, (ii) any events or circumstances shall have occurred which
have, or are reasonably expected to have, a Material Adverse Effect, (iii) the United States shall
have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been
an outbreak of or escalation in hostilities involving the United States, or there shall have been a
declaration of a national emergency or war by the United States, or other calamity or crisis the
effect of which on the financial markets is such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the Offering or delivery of the Units as
contemplated by the Sale Preliminary Prospectus or the Prospectus, (iv) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market,
the NASDAQ Capital Market or on the OTC Bulletin Board (or successor trading market or quotation
system) shall have been suspended, or minimum or maximum prices for trading shall have been
established, or maximum ranges for prices for securities shall have been fixed, or (v) if a banking
moratorium has been declared by a New York State or Federal authority.
9.3 Indemnification. Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way effected
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by such election or termination or failure to carry out the terms of this Agreement or any
part hereof.
10. Miscellaneous.
10.1 Notices. All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and shall be mailed, delivered or telecopied and confirmed and shall
be deemed given when so delivered or telecopied and confirmed or if mailed, two days after such
mailing
If to the Representative:
Xxxxxx Xxxxxx LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Copy to:
XxXxxxxxx Will & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
L&L Acquisition Corp.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Copy to:
Xxxxxxx Procter LLP
The New York Times Building
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
The New York Times Building
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
10.2 Headings. The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or interpretation of any of the
terms or provisions of this Agreement.
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10.3 Amendment. This Agreement may only be amended by a written instrument executed
by each of the parties hereto.
10.4 Entire Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersede all prior agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof.
10.5 Binding Effect. This Agreement shall inure solely to the benefit of and shall be
binding upon the Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any
provisions herein contained. This agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said controlling persons and
their respective successors, officers, directors, heirs and legal representatives, and it is not
for the benefit of any other person. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of securities from any of the Underwriters.
10.6 No Fiduciary Relationship in Pricing. The Company acknowledges and agrees that:
(i) the sale and issuance of the securities pursuant to this Agreement, including the determination
of the initial public offering price of the Securities and any related discounts and commissions,
is an arm’s-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand; (ii) in connection therewith and with the process leading to the
Offering, each Underwriter is and has been acting solely as a principal and not the agent or
fiduciary of the Company; (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the Offering or the process leading thereto, including any
negotiation related to the pricing of the securities (irrespective of whether such Underwriter has
advised or is currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the Offering except for the obligations expressly set
forth in this Agreement; (iv) the Underwriters and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Company and (v)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the Offering and the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate in connection with this Agreement and the Offering.
10.7 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of another jurisdiction.
The Company hereby agrees that any action, proceeding or claim against it arising out of, or
relating in any way to this Agreement shall be brought and enforced in the courts of the State of
New York or the United States of America for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any
such process or summons to be served upon the Company may be served by transmitting a copy thereof
by registered or certified mail, return receipt requested,
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postage prepaid, addressed to it at the address set forth in Section 11.1 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the Company in any
action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such action
shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and
expenses relating to such action or proceeding and/or incurred in connection with the preparation
therefor.
10.8 Execution in Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart
of this Agreement by fax or email/pdf transmission shall constitute valid and sufficient delivery
thereof.
10.9 Waiver, Etc. The failure of any of the parties hereto to at any time enforce any
of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such
provision, nor to in any way affect the validity of this Agreement or any provision hereof or the
right of any of the parties hereto to thereafter enforce each and every provision of this
Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of
this Agreement shall be effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other
or subsequent breach, non-compliance or non-fulfillment.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the understanding between the Underwriters and the
Company, please so indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between us.
| Very truly yours, L&L ACQUISITION CORP. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted on the date first
above written. XXXXXX XXXXXX LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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SCHEDULE I
L&L ACQUISITION CORP.
5,000,000 Units
| Number of Firm Units | ||||
| Underwriter | to be Purchased | |||
Xxxxxx Xxxxxx LLC |
||||
EarlyBirdCapital, Inc. |
||||
SCHEDULE II
TIME OF SALE INFORMATION
EXHIBIT A
FORM OF TARGET BUSINESS LETTER
L&L Acquisition Corp.
Gentlemen:
Reference is made to the Final Prospectus of L&L Acquisition Corp. (the “Company”),
dated [•], 2010 (the “Prospectus”). Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account,
initially in an amount of at least $[•]for the benefit of the Public Stockholders and the
Underwriters of the Company’s initial public offering (the “Underwriters”) and that, except
for a portion of the interest earned on the amounts held in the Trust Account, the Company may
disburse monies from the Trust Account only: (i) to the Public Stockholders in the event they elect
to redeem their public shares in connection with the consummation of a Business Combination, (ii)
to the Public Stockholders if the Company fails to consummate a Business Combination within 18
months from the date of the Prospectus or (iii) to the Company after or concurrently with the
consummation of a Business Combination.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of
consummating a Business Combination with it, the undersigned hereby agrees that it does not have
any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a
“Claim”) and hereby waives any Claim it may have in the future as a result of, or arising
out of, any negotiations, contracts or agreements with the Company and will not seek recourse
against the Trust Account for any reason whatsoever.
| Print Name of Target Business | ||
| Authorized Signature of Target Business |
EXHIBIT B
FORM OF VENDOR LETTER
L&L Acquisition Corp.
Gentlemen:
Reference is made to the Final Prospectus of L&L Acquisition Corp. (the “Company”),
dated [•], 2010 (the “Prospectus”). Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account,
initially in an amount of at least $[•]for the benefit of the Public Stockholders and the
Underwriters of the Company’s initial public offering (the “Underwriters”) and that, except
for a portion of the interest earned on the amounts held in the Trust Account, the Company may
disburse monies from the Trust Account only: (i) to the Public Stockholders in the event they elect
to redeem their public shares in connection with the consummation of a Business Combination, (ii)
to the Public Stockholders if the Company fails to consummate a Business Combination within 18
months from the date of the Prospectus or (iii) to the Company after or concurrently with the
consummation of a Business Combination.
For and in consideration of the Company agreeing to engage the services of the undersigned,
the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind
in or to any monies in the Trust Account (each, a “Claim”) and hereby waives any Claim it
may have in the future as a result of, or arising out of, any services provided to the Company and
will not seek recourse against the Trust Account for any reason whatsoever.
| Print Name of Vendor | ||
| Authorized Signature of Vendor |
