Lambert’s Cove Acquisition Corporation [10,000,000] Units Common Stock ($0.0001 par value per Share) and one Warrant Underwriting Agreement
Xxxxxxx’x
Cove Acquisition Corporation
[10,000,000]
Units
Common
Stock ($0.0001 par value per Share)
and
one
Warrant
[pricing
date]
[pricing
date]
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Xxxxxx
Xxxxxx & Co., Inc.
[_____________]
[_____________]
As
Representatives to the several underwriters listed
in
Schedule A
annexed
hereto (the “Underwriters”)
Ladies
and Gentlemen:
Xxxxxxx’x
Cove Acquisition Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell, to the Underwriters for whom you are acting as
representatives (the “Representatives”),
an
aggregate of [10,000,000] Units (the “Units”)
of the
Company (the “Firm
Securities”).
In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company
up
to an additional [1,500,000] Units (the “Additional
Securities”).
The
Firm Securities and the Additional Securities are hereinafter collectively
sometimes referred to as the “Securities.”
The
Securities are described in the Prospectus which is referred to
below.
Each
Unit
consists of one share of the Company’s common stock, par value $0.0001 per share
(the “Common
Stock”),
and
one warrant to purchase one share of Common Stock (the “Warrants”).
The
shares of Common Stock and the Warrants included in the Units will not
be
separately transferable until five days following the earlier to occur
of
(a) the expiration of the Over-Allotment Option (as herein defined),
(b) the exercise in full of the Over-Allotment Option or (c) the
announcement by the Underwriters of their intention not to exercise all
or any
remaining portion of the Over-Allotment Option, subject to (i) the
preparation of an audited balance sheet of the Company reflecting receipt
by the
Company of the proceeds of the offering of the Securities and the filing
by the
Company of such audited balance sheet with the Commission on a Current
Report on
Form 8-K or similar form and (ii) the Company issuing a press release
announcing when such separate trading will begin. Each Warrant entitles
its
holder, upon exercise, to purchase one share of Common Stock for $7.50,
subject
to certain adjustments, during the period commencing on the later of the
completion by the Company of its Initial Business Combination or one year
from
the date of the Prospectus and terminating on the five-year anniversary
of the
date of the Prospectus or earlier upon redemption or liquidation of the
Trust
Account (as defined below). As used herein, the term “Initial
Business Combination”
shall
mean any acquisition, through a merger, capital stock exchange, asset or
stock
acquisition, exchangeable share transaction, joint venture or other similar
type
of transaction of one or more operating businesses or assets.
Pursuant
to a Securities Subscription Agreement, dated as of March 11, 2008 (the
“Founder’s
Securities Purchase Agreement”),
the
Company sold in a private placement to Xxxxxxx’x Cove Holdings, LLC, and
Xxxxxxx’x Cove Holdings, LLC purchased from the Company 2,875,000 Units (the
“Founder’s
Units”),
each
such Founder’s Unit consisting of one share of Common Stock (the “Founder’s
Shares”)
and
one Warrant to purchase one share of Common Stock (the “Founder’s
Warrants”,
and
collectively with the Founder’s Units and the Founder’s Shares, the
“Founder’s
Securities”),
for
an aggregate purchase price of $25,000. [Describe
any subsequent transfers to other holders].
The
Company has entered into a Subscription Agreement, dated as of March 11,
2008
(the “Private
Placement Agreement”),
with
Xxxxxxx’x Cove Holdings, LLC where the Company agreed to sell, and Xxxxxxx’x
Cove Holdings, LLC agreed to purchase immediately prior to the date of
the
Prospectus (as defined below) 3,050,000 warrants to purchase one share
of Common
Stock (the “Insider
Warrants”)
for an
aggregate purchase price of $3,050,000. The Founder’s Units (and underlying
Founder’s Shares and Founder’s Warrants) include 375,000 Founder’s Units which
are subject to forfeiture by Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
(the
“Forfeit
Units”)
and
are subject to forfeiture to the extent the Over-Allotment Option is not
exercised or is exercised in part so that the holder[s] of the Founder’s Units
will [collectively] own 20% of the Company’s Units after the offering of the
Securities. The Founder’s Shares are identical to the shares of Common Stock
contained in the Units except that Xxxxxxx’x Cove Holdings, LLC [and
other
stockholders]
has
agreed (i) to vote the Founder's Shares in accordance with the majority of
the shares of Common Stock voted by the Public Stockholders (as herein
defined)
in connection with the vote on the Extended Period (as herein defined)
or any
Initial Business Combination, and (ii) to waive any right to receive a
liquidation distribution in the event the Company fails to consummate an
Initial
Business Combination. The Founder’s Warrants are identical to the Warrants
contained in the Units except that (i) they only become exercisable after
the consummation of an Initial Business Combination, (ii) they are exercisable
on a cashless basis, if held by Xxxxxxx’x Cove Holdings, LLC or its permitted
assigns, and (iii) they are not redeemable by the Company so long as they
are held by Xxxxxxx’x Cove Holdings, LLC or its permitted assigns. The Insider
Warrants are identical to the Warrants contained in the Units except that
(i) they are exercisable on a cashless basis at
any
time after the consummation of an Initial Business Combination,
if held
by Xxxxxxx’x
Cove Holdings, LLC
or its
permitted
assigns
and
(ii) they are not redeemable by the Company so long as they are held by
Xxxxxxx’x Cove Holdings, LLC or its permitted assigns. Pursuant to a Securities
Escrow Agreement, dated [____] (the “Escrow
Agreement”),
among
the Company, Xxxxxxx’x Cove Holdings, LLC[, other
stockholders]
and
American Stock Transfer & Trust Company (the “Escrow
Agent”),
all
of the Founder’s Securities and the Insider Warrants will be placed in escrow
with the Escrow Agent and will not be released from escrow until (i) with
respect to the Founder’s Securities (including the shares of Common Stock to be
issued upon the exercise of the Founder’s Warrants), one year after the
consummation of an Initial Business Combination, and (ii) with respect to
the Insider Warrants (including the shares of Common Stock to be issued
upon
exercise of the Insider Warrants), until 30 days after the consummation
of an
Initial Business Combination. The Founder’s Securities (including the shares of
Common Stock to be issued upon the exercise of the Founder’s Warrants) and the
Insider Warrants (including the shares of Common Stock to be issued upon
exercise of the Insider Warrants) may be released from escrow earlier than
such
dates if the Over-Allotment Option is not exercised in full or in part
in order
to have up to 375,000 Forfeit Units cancelled as described above or if,
subsequent to an Initial Business Combination, the Company consummates
a
subsequent liquidation, merger, stock exchange or other similar transaction
which results in all of the Company’s stockholders having the right to exchange
their shares of Common Stock for cash, securities or other property. During
the
escrow period, Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
(the
“Initial
Holder[s]”)
will
not be able to sell, transfer or dispose of its Founder’s Securities, Insider
Warrants or the shares of Common Stock issuable upon exercise of the Founder’s
Warrants and Insider Warrants except (i) to an entity’s members upon
liquidation (ii) by gift to a member of Initial Holder’s immediate family
or to a trust or other entity, the beneficiary of which is an Initial Holder
or
a member of an Initial Holder’s immediate family, (iii) by virtue of the
laws of descent and distribution upon the death of any Initial Holder,
(iv) pursuant to a qualified domestic relations order, (v) to an
entity that is an Initial Holder, (vi) to any person or entity controlling,
controlled by, or under common control with, an Initial Holder or
(vii) with respect to an Initial Holder who is an individual, to an entity
controlled by such Initial Holder, in each case where the transferee agrees
to
the terms of the Escrow Agreement and of the Insider Letter (as described
below)
signed by such Initial Holder.
The
Company has entered into a Warrant Agreement, dated as of
[ ], with respect to the
Warrants, the Founder’s Warrants and the Insider Warrants with American Stock
Transfer & Trust Company, as warrant agent (the “Warrant
Agent”),
in
substantially the form filed as an exhibit to the Registration Statement
(the
“Warrant
Agreement”).
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2 -
The
Company will enter into an Investment Management Trust Agreement, dated
no later
than the Closing Date (as defined herein), with American Stock Transfer
&
Trust Company (the “Trustee”),
as
trustee, in substantially the form filed as an exhibit to the Registration
Statement (the “Trust
Agreement”),
pursuant to which the proceeds from the sale of the Insider Warrants and
certain
proceeds of the offering of the Securities will be deposited and held in
a trust
account at JPMorgan Chase Bank NA (the “Trust
Account”)
for
the benefit of the Company, the Underwriters and holders of the
Securities.
The
Company has entered into an Administrative Services Agreement, dated
[ ], with Xxxxxxx’x Cove
Holdings, LLC (the “Services
Agreement”)
substantially in the form filed as an exhibit to the Registration Statement,
pursuant to which the Company will pay an aggregate monthly fee of $10,000
for
office space and certain general and administrative services, including
but not
limited to receptionist, secretarial and general office services, from
the date
hereof until the earlier of (i) the consummation of the Initial Business
Combination or (ii) the liquidation of the Company.
The
Company will enter into a Registration Rights Agreement, dated no later
than the
Closing Date, in substantially the form filed as an exhibit to the Registration
Statement (the “Registration
Rights Agreement”),
pursuant to which the Company has granted certain registration rights to
Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
and its
permitted transferees in respect of the Founder’s Securities, the Insider
Warrants and the shares of Common Stock issuable upon the exercise of the
Founder’s Warrants and the Insider Warrants.
The
Company will cause Xxxxxxx’x Cove Holdings, LLC and each of the Company’s
directors and executive officers to enter into letter agreements dated
no later
than the Closing Date, in substantially the form filed as exhibits to the
Registration Statement (the “Insider
Letters”),
pursuant to which each of Xxxxxxx’x Cove Holdings, LLC and the Company’s
directors and executive officers agrees to certain matters described as
being
agreed to by them under the “Proposed Business” section of the Disclosure
Package and the Prospectus. [Include
any other holders of securities]
[add
other agreements, if applicable]
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-1 (File No. 333-[_______]) under the Act,
including a prospectus, relating to the Securities.
Except
where the context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, as amended at the time of
such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the “Effective
Time”),
including (i) all documents filed as a part thereof, (ii) any
information contained in a prospectus filed with the Commission pursuant
to
Rule 424(b) under the Act, to the extent such information is deemed,
pursuant to Rule 430A or Rule 430C under the Act, to be part of the
registration statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of the Securities pursuant
to
Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by dealers
in
connection with the offering of the Securities, copies of one or more
preliminary prospectuses relating to the Securities. Except where the context
otherwise requires, “Preliminary
Prospectus,”
as
used herein, means each such preliminary prospectus, in the form so
furnished.
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3 -
Except
where the context otherwise requires, “Prospectus,”
as
used herein, means the prospectus, relating to the Securities, filed by
the
Company with the Commission pursuant to Rule 424(b) under the Act on or
before
the second business day after the date hereof (or such earlier time as
may be
required under the Act), or, if no such filing is required, the final prospectus
included in the Registration Statement at the time it became effective
under the
Act, in each case in the form furnished by the Company to you for use by
the
Underwriters and by dealers in connection with the offering of the
Securities.
“Disclosure
Package,”
as
used herein, means any Preliminary Prospectus together with the information
contained in Schedule B
hereto.
As
used
in this Agreement, “business
day”
shall
mean a day on which the New York Stock Exchange (the “NYSE”)
is
open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement. The term “or,” as used herein, is not
exclusive.
The
Company has prepared and filed, in accordance with Section 12 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the “Exchange
Act”),
a
registration statement (as amended, the “Exchange
Act Registration Statement”)
on
Form 8-A (File No. [_________]) under the Exchange Act to register, under
Section 12(b) of the Exchange Act, the classes of securities consisting
of the
Units, the Common Stock and the Warrants.
The
Company and the Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms
and
conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not
jointly,
agrees to purchase from the Company the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule A
attached
hereto, subject to adjustment in accordance with Section 8 hereof, in each
case
at a purchase price of $[9.625] per Unit. The Company is advised by you
that the
Underwriters intend (i) to make a public offering of their respective
portions of the Firm Securities as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Securities upon the terms set forth in the Prospectus.
You may
from time to time increase or decrease the public offering price after
the
initial public offering to such extent as you may determine.
In
addition, the Company hereby grants to the several Underwriters the option
(the
“Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and
subject
to the terms and conditions herein set forth, the Underwriters shall have
the
right to purchase, severally and not jointly, from the Company, ratably
in
accordance with the number of Firm Securities to be purchased by each of
them,
all or a portion of the Additional Securities as may be necessary to cover
over-allotments made in connection with the offering of the Firm Securities,
at
the same purchase price per Unit to be paid by the Underwriters to the
Company
for the Firm Securities. The Over-Allotment Option may be exercised by
UBS
Securities LLC (“UBS”)
on
behalf of the several Underwriters at any time and from time to time on
or
before the thirtieth day following the date of the Prospectus, by written
notice
to the Company. Such notice shall set forth the aggregate number of Additional
Securities as to which the Over-Allotment Option is being exercised and
the date
and time when the Additional Securities are to be delivered (any such date
and
time being herein referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date
on which
the Over-Allotment Option shall have been exercised nor later than the
tenth
business day after the date on which the Over-Allotment Option shall have
been
exercised. The number of Additional Securities to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number
of
Additional Securities being purchased as the number of Firm Securities
set forth
opposite the name of such Underwriter on Schedule A
hereto
bears to the total number of Firm Securities (subject, in each case, to
such
adjustment as UBS may determine to eliminate fractional Securities), subject
to
adjustment in accordance with Section 8 hereof.
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4 -
In
addition to the discount from the public offering price of $[10.00] per
Unit
represented by the purchase price set forth above, the Company hereby agrees
to
pay to the Underwriters a deferred discount of $[0.325]
per
Unit (for both Firm Securities and Additional Securities) purchased hereunder
(the “Deferred
Discount”).
The
Deferred Discount will be payable from amounts on deposit in the Trust
Account
as described in the Registration Statement if and when the Company consummates
an Initial Business Combination. The Underwriters hereby agree that if
no
Initial Business Combination is consummated within the time period provided
in
the Trust Agreement and the funds held under the Trust Agreement are distributed
to the Public Stockholders, (i) the Underwriters will forfeit any rights or
claims to the Deferred Discount and (ii) the Trustee under the Trust
Agreement is authorized to distribute the Deferred Discount as described
in the
Registration Statement. The Company hereby agrees that it will not make
any
amendments to the Trust Agreement or to schedules or exhibits to the Trust
Agreement in such a manner as to adversely affect the right of the Underwriters
to receive the Deferred Discount as contemplated herein and therein without
the
written consent of the Underwriters.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Securities shall be made to the Company
by
Federal Funds wire transfer against delivery of the certificates for the
Firm
Securities to you through the facilities of The Depository Trust Company
(“DTC”)
for
the respective accounts of the Underwriters. Such payment and delivery
shall be
made at 10:00 A.M., New York City time, on [closing date] (unless another
time
shall be agreed to by you and the Company or unless postponed in accordance
with
the provisions of Section 8 hereof). The time at which such payment and
delivery
are to be made is hereinafter sometimes called the “time
of purchase.”
Electronic transfer of the Firm Securities shall be made to you at the
time of
purchase in such names and in such denominations as you shall
specify.
Payment
for the Firm Securities shall be made as follows: $[95,450,000] shall be
deposited in the Trust Account pursuant to the terms of the Trust Agreement
and
$[800,000], shall be paid to the order of the Company upon delivery to
the
Representatives of certificates (in form and substance satisfactory to
the
Representatives) representing the Firm Securities (or through the facilities
of
the DTC) for the account of the Underwriters. The Firm Securities shall
be
registered in such name or names and in such authorized denominations as
the
Representatives may request in writing at least two (2) business days prior
to the time of purchase. The Company will permit the Representatives to
examine
and package the Firm Securities for delivery, at least one (1) business day
prior to the time of purchase. The Company shall not be obligated to sell
or
deliver the Firm Securities except upon tender of payment by the Representatives
for all the Firm Securities.
Payment
of the purchase price for the Additional Securities shall be made at the
additional time of purchase in the same manner and at the same office as
the
payment for the Firm Securities. Electronic transfer of the Additional
Securities shall be made to you at the additional time of purchase in such
names
and in such denominations as you shall specify.
Deliveries
of the documents described in Section 6 hereof with respect to the purchase
of
the Securities shall be made at the offices of Xxxxxxxx Chance US LLP at
00 Xxxx
00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on the date
of the
closing of the purchase of the Firm Securities or the Additional Securities,
as
the case may be.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
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5 -
(a) the
Registration Statement has heretofore become effective under the Act or,
with
respect to any registration statement to be filed to register the offer
and sale
of Securities pursuant to Rule 462(b) under the Act, will be filed with
the
Commission and become effective under the Act no later than 10:00 P.M.,
New York
City time, on the date of determination of the public offering price for
the
Securities; no stop order of the Commission preventing or suspending the
use of
any Preliminary Prospectus, or the effectiveness of the Registration Statement,
has been issued, and no proceedings for such purpose have been instituted
or, to
the Company’s knowledge, are contemplated by the Commission; the Exchange Act
Registration Statement has become effective as provided in Section 12 of
the
Exchange Act;
(b) the
Registration Statement complied when it became effective, complies as of
the
date hereof and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any
sale of
Securities, will comply, in all material respects, with the requirements
of the
Act; the Registration Statement did not, as of the Effective Time, contain
an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading;
each Preliminary Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects
with
the requirements of the Act; at no time during the period that begins on
the
earlier of the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the Commission and ends at the time of purchase
did or
will any Preliminary Prospectus, as then amended or supplemented, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, and at no time during such period
did or
will any Preliminary Prospectus, as then amended or supplemented, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; the Prospectus will comply, as of
its
date, the date that it is filed with the Commission, the time of purchase,
each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any
sale of
Securities, in all material respects, with the requirements of the Act
(including, without limitation, Section 10(a) of the Act); at no time during
the
period that begins on the earlier of the date of the Prospectus and the
date the
Prospectus is filed with the Commission and ends at the later of the time
of
purchase, the latest additional time of purchase, if any, and the end of
the
period during which a prospectus is required by the Act to be delivered
(whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Securities did or will the Prospectus,
as
then amended or supplemented, include an untrue statement of a material
fact or
omit to state a material fact necessary in order to make the statements
therein,
in the light of the circumstances under which they were made, not misleading;
provided,
however,
that
the Company makes no representation or warranty in this Section 3(b) with
respect to any statement contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus in reliance upon and in conformity
with
information concerning an Underwriter and furnished in writing by or on
behalf
of such Underwriter through you to the Company expressly for use in the
Registration Statement, such Preliminary Prospectus or the
Prospectus;
(c) prior
to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Securities by means of any “prospectus” (within the meaning
of the Act) or used any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Securities, in each case other
than the
Preliminary Prospectuses;
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6 -
(d) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement,
the
Preliminary Prospectuses and the Prospectus entitled “Capitalization” and
“Description of Securities”, and, as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an authorized
and
outstanding capitalization as set forth in the sections of the Registration
Statement, the Preliminary Prospectuses and the Prospectus entitled
“Capitalization” and “Description of Securities”; all of the issued and
outstanding shares of capital stock of the Company have been duly authorized
and
validly issued and are fully paid and non-assessable, have been issued
in
compliance with all applicable securities laws and were not issued in violation
of any preemptive right, resale right, right of first refusal or similar
right;
and the Amended and Restated Certificate of Incorporation of the Company
and the
Bylaws of the Company, each in the form filed as an exhibit to the Registration
Statement, have been heretofore duly authorized and approved in accordance
with
the Delaware General Corporation Law and shall become effective and in
full
force and effect at or before the time of purchase; the Units are duly
listed,
and admitted and authorized for trading, subject to official notice of
issuance
and evidence of satisfactory distribution, on the American Stock Exchange
(the
“AMEX”);
(e) the
holders of any outstanding securities of the Company have no rights of
rescission with respect thereto, and are not subject to personal liability
by
reason of being such holders; and none of such securities were issued in
violation of the preemptive rights of any holders of any other security
of the
Company or similar contractual rights granted by the Company. The offers
and
sales of the Founder’s Securities and the Insider Warrants were at all relevant
times, based in part on the representations and warranties of the purchaser
of
such securities, exempt from registration under the Act. The holders of
outstanding securities of the Company are not entitled to preemptive or
other
rights to subscribe for the Securities; and, except for the Founder’s Warrants
and the Insider Warrants, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(f) the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Preliminary Prospectuses, the Registration
Statement and the Prospectus and the certificates for the Securities are
in due
and proper form;
(g)
(1) The
Securities have been duly authorized and when executed by the Company and
countersigned and issued and delivered against payment therefor by the
Underwriters pursuant to this Agreement will be validly issued, fully paid
and
non-assessable.
(2) The
Common Stock included in the Units has been duly authorized and, when issued
and
delivered against payment for the Securities by the Underwriters pursuant
to
this Agreement, will be validly issued, fully paid and non-assessable.
The
holders of such Common Stock are not and will not be subject to personal
liability by reason of being such holders; such Common Stock is not and
will not
be subject to any preemptive or other similar contractual rights granted
by the
Company.
(3) The
Warrants included in the Units have been duly authorized and, when executed,
authenticated, issued and delivered in the manner set forth in the Warrant
Agreement against payment for the Securities by the Underwriters pursuant
to
this Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the
enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws
affecting creditors’ rights generally from time to time in effect and by
equitable principles of general applicability.
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7 -
(4) The
shares of Common Stock issuable upon exercise of the Warrants included
in the
Units have been duly authorized and reserved for issuance and, when issued
and
delivered against payment therefor pursuant to the Warrants and the Warrant
Agreement, will be validly issued, fully paid and non-assessable. The holders
of
such Common Stock are not and will not be subject to personal liability
by
reason of being such holders; such Common Stock is not and will not be
subject
to any preemptive or other similar contractual rights granted by the
Company;
(h) except
as
set forth in the Registration Rights Agreement, 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;
(i)
(1) 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 from its inception through and including
the date hereof, except as disclosed in the Registration Statement.
(2) Neither
the Company nor any of its affiliates has, prior to the date hereof, made
any
offer or sale of any securities which are required to be “integrated” pursuant
to the Act with the offer and sale of the Securities pursuant to the
Registration Statement;
(j) the
Founder’s Units have been duly authorized and are validly issued and are fully
paid and non-assessable. The Founder’s Shares have been duly authorized and are
validly issued and are fully paid and non-assessable. The Founder’s Warrants
have been duly authorized, executed, authenticated, issued, delivered,
and
constitute valid and binding obligations of the Company, enforceable against
the
Company in accordance with their terms, except as the enforceability thereof
may
be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles
of
general applicability. The Insider Warrants have been duly authorized and,
when
executed, authenticated, issued and delivered in the manner set forth in
the
Private Placement Agreement against payment therefor by Xxxxxxx’x Cove Holdings,
LLC pursuant to the Private Placement Agreement, will constitute valid
and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited
by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability. The shares of Common Stock issuable upon exercise of the
Founder’s Warrants and the Insider Warrants have been duly authorized and
reserved for issuance and, when issued and delivered against payment therefor
pursuant to the Founder’s Warrants and the Insider Warrants, as the case may be,
and the Warrant Agreement will be validly issued, fully paid and non-assessable.
Prior to the time of purchase, the entire $3,050,000 of the proceeds from
the
sale of the Insider Warrants shall have been deposited in the Trust Account.
Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
has
(1) waived any and all rights and claims it may have to any proceeds, and
any interest thereon, held in the Trust Account in respect of the Founder’s
Shares and the shares of Common Stock issuable upon exercise of the Founder’s
Warrants and the Insider Warrants in the event that an Initial Business
Combination is not consummated and the Trust Account is liquidated in accordance
with the terms of the Trust Agreement, and (2) agreed to vote the Founder’s
Shares in accordance with the majority of the shares of Common Stock voted
by
the Public Stockholders (as defined below) in connection with the vote
on the
Extended Period (as defined below) or any Initial Business Combination;
Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
has
agreed, during the applicable escrow periods of the Escrow Agreement, not
to
sell, transfer or dispose of its Founder’s Securities, Insider Warrants or the
shares of Common Stock issuable upon exercise of its Founder’s Warrants and its
Insider Warrants except (i) to an entity’s members upon liquidation
(ii) by gift to a member of Initial Holder’s immediate family or to a trust
or other entity, the beneficiary of which is an Initial Holder or a member
of an
Initial Holder’s immediate family, (iii) by virtue of the laws of descent
and distribution upon the death of any Initial Holder, (iv) pursuant to a
qualified domestic relations order, (v) to an entity that is an Initial
Holder, (vi) to any person or entity controlling, controlled by, or under
common control with, an Initial Holder or (vii) with respect to an Initial
Holder who is an individual, to an entity controlled by such Initial Holder,
in
each case where the transferee agrees to the terms of the Escrow Agreement
and
of the Insider Letter signed by such Initial Holder; Xxxxxxx’x Cove Holdings,
LLC and each of the Company’s directors and officers have agreed to vote any
shares of Common Stock acquired in the offering of the Securities or in
the
aftermarket in favor of the Extended Period or an Initial Business Combination
submitted to the Company’s stockholders for approval.
-
8 -
(k) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware with full corporate
power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Preliminary Prospectuses,
the
Registration Statement and the Prospectus, to execute and deliver this
Agreement
and to issue, sell and deliver the Securities as contemplated herein, and
is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification.
(l) the
Company has no subsidiaries (as defined under the Act); the Company does
not
own, directly or indirectly, any shares of stock or any other equity interests
or long-term debt securities of any corporation, firm, partnership, joint
venture, association or other entity. Complete and correct copies of the
charter
and the bylaws of the Company and all amendments thereto have been delivered
to
you, and, except as set forth in the exhibits to the Registration Statement,
no
changes therein will be made on or after the date hereof through and including
the time of purchase or, if later, any additional time of purchase;
(m)
(1) This
Agreement has been duly authorized, executed and delivered by the
Company.
(2) The
Trust
Agreement has been duly authorized, and upon execution and delivery by
the
Company on or before the Closing Date, will be a valid and binding agreement
of
the Company, enforceable against the Company in accordance with its terms
except
as the enforceability thereof may be limited by bankruptcy, insolvency,
or
similar laws affecting creditors’ rights generally from time to time in effect
and by equitable principles of general applicability.
-
9 -
(3) The
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable
against
the Company in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles
of
general applicability.
(4) The
Private Placement Agreement has been duly authorized, executed and delivered
by
each of the Company and Xxxxxxx’x Cove Holdings, LLC and is a valid and binding
agreement of each of the Company and Xxxxxxx’x Cove Holdings, LLC, enforceable
against each of the Company and Xxxxxxx’x Cove Holdings, LLC in accordance with
its terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditor’s rights generally from time to
time in effect and by equitable principles of general
applicability.
(5) The
Services Agreement has been duly authorized, executed and delivered by
the
Company and Xxxxxxx’x Cove Holdings, LLC and is a valid and binding agreement of
the Company and Xxxxxxx’x Cove Holdings, LLC, enforceable against the Company
and Xxxxxxx’x Cove Holdings, LLC, in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws
affecting creditors’ rights generally from time to time in effect and by
equitable principles of general applicability.
(6) The
Registration Rights Agreement has been duly authorized, and upon execution
and
delivery by each of the Company and Xxxxxxx’x Cove Holdings, LLC [and
other
stockholders]
on or
before the Closing Date, will be a valid and binding agreement of the Company
and Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
enforceable against the Company and Xxxxxxx’x Cove Holdings, LLC [and
other
stockholders]
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability.
(7) The
Founder’s Securities Purchase Agreement has been duly authorized, executed and
delivered by each of the Company and Xxxxxxx’x Cove Holdings, LLC and is a valid
and binding agreement of each of the Company and Xxxxxxx’x Cove Holdings, LLC,
enforceable against each of the Company and Xxxxxxx’x Cove Holdings, LLC in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditor’s rights generally
from time to time in effect and by equitable principles of general
applicability.
(8) The
Escrow Agreement has been duly authorized, executed and delivered by each
of the
Company and Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
and is
a valid and binding agreement of each of the Company and Xxxxxxx’x Cove
Holdings, LLC [and other
stockholders],
enforceable against each of the Company and Xxxxxxx’x Cove Holdings, LLC [and
other
stockholders]
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditor’s rights generally
from time to time in effect and by equitable principles of general
applicability.
-
10 -
(9) Each
of
the Insider Letters has been duly authorized, executed and delivered by
Xxxxxxx’x Cove Holdings, LLC and each of the Company’s directors and executive
officers respectively and is a valid and binding agreement of Xxxxxxx’x Cove
Holdings, LLC and each of the Company’s directors and executive officers
respectively, enforceable against Xxxxxxx’x Cove Holdings, LLC and each of the
Company’s directors and executive officers respectively in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors’ rights generally from time to
time in effect and by equitable principles of general
applicability.
(10) [add
other appropriate agreements, if applicable]
(n) no
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein or in the Trust Agreement, the Warrant Agreement, the
Private Placement Agreement, the Services Agreement, the Registration Rights
Agreement, the Founder’s Securities Purchase Agreement, the Escrow Agreement, or
the Insider Letters, except such as have been obtained under the Act[,
such as
have been obtained under the federal and provincial securities laws of
Canada,]
and such as may be required under the blue sky laws of any jurisdiction
in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Registration
Statement, the Preliminary Prospectuses and the Prospectus [add
other appropriate agreements, if applicable];
(o) neither
the issue and sale of the Securities nor the consummation of any other
of the
transactions herein contemplated nor the fulfillment of the terms hereof
or of
the Trust Agreement, the Warrant Agreement, the Private Placement Agreement,
the
Services Agreement, the Registration Rights Agreement, the Founder’s Securities
Purchase Agreement, the Escrow Agreement or the Insider Letters will conflict
with, result in a breach or violation of, or imposition of any lien, charge
or
encumbrance upon any property or assets of the Company or Xxxxxxx’x Cove
Holdings, LLC pursuant to (i) the charter or by-laws or other
organizational documents of the Company or Xxxxxxx’x Cove Holdings, LLC, as the
case may be, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or Xxxxxxx’x Cove
Holdings, LLC is a party or bound or to which their respective property
is
subject, or (iii) any statute, law, rule, or regulation, judgment, order or
decree applicable to the Company or Xxxxxxx’x Cove Holdings, LLC of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other
authority having jurisdiction over the Company or Xxxxxxx’x Cove Holdings, LLC
any of their respective properties [add
other appropriate agreements];
(p) neither
the Company nor Xxxxxxx’x Cove Holdings, LLC is in violation or default of
(i) any provision of its charter or bylaws or other organizational
documents, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which
its property is subject, or (iii) any statute, law, rule, regulation, or
judgment, order or decree of any court, regulatory body, administrative
agency,
governmental body, arbitrator or other authority having jurisdiction over
the
Company or Xxxxxxx’x Cove Holdings, LLC, as applicable;
(q) except
as
described in the Registration Statement (excluding the exhibits thereto),
each
Preliminary Prospectus and the Prospectus, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to it any
shares
of Common Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of Common
Stock
or shares of any other capital stock of or other equity interests in the
Company
and (iii) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale
of the
Securities;
-
11 -
(r) the
Company has all necessary licenses, authorizations, consents and approvals
and
has made all necessary filings required under any applicable law, regulation
or
rule, and has obtained all necessary licenses, authorizations, consents
and
approvals from other persons, in order to conduct its business; the Company
is
not in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign
law,
regulation or rule or any decree, order or judgment applicable to the
Company;
(s) there
are
no actions, suits, claims, investigations or proceedings pending or, to
the
Company’s knowledge, threatened or contemplated to which the Company, Xxxxxxx’x
Cove Holdings, LLC or any of their respective directors, officers, managers
or
members is or would be a party or of which any of their respective properties
is
or would be subject at law or in equity, before or by any federal, state,
local
or foreign governmental or regulatory commission, board, body, authority
or
agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
AMEX);
(t) Xxxxxxxxx
Xxxx (“RK”)
are
independent public accountants with respect to the Company within the meaning
of
the Act and the applicable published rules and regulations thereunder and
the
Public Company Accounting Oversight Board (including the rules and regulations
promulgated by such entity). RK has not, during the periods covered by
the
financial statements included in the Disclosure Package and the Prospectus,
provided to the Company any non-audit services, as such term is used in
Section
10A(g) of the Exchange Act;
(u) the
Company has obtained for the benefit of the Underwriters the agreement
(a
“Lock-Up
Agreement”),
in
the form set forth as Exhibit A
hereto,
of (i) each of its directors and “officers” (within the meaning of
Rule 16a-1(f) under the Exchange Act) and (ii) each other person named
in Exhibit A-1
hereto;
(v) the
financial statements, including the notes thereto and the supporting schedules,
if any, of the Company included in the Preliminary Prospectuses, the Prospectus
and the Registration Statement present fairly the financial condition,
results
of operations and cash flows of the Company as of the dates and for the
periods
indicated, comply as to form with the applicable accounting requirements
of the
Act and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except
as otherwise noted therein). There are no pro forma or as adjusted financial
statements that are required to be included in the Preliminary Prospectuses,
the
Registration Statement and the Prospectus in accordance with Regulation
S-X that
have not been included as so required;
(w) the
Company is not party to any off-balance sheet transactions, arrangements,
obligations (including contingent obligations), or other relationships
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;
-
12 -
(x) the
statistical, industry-related and market-related data included in the
Registration Statement, the Preliminary Prospectuses and the Prospectus
are
based on or derived from sources that the Company reasonably and in good
faith
believes are reliable and accurate, and such data agree with the sources
from
which they are derived;
(y) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Preliminary Prospectuses and the Prospectus, in each case
excluding any amendments or supplements to the foregoing made after the
execution of this Agreement, there has not been (i) any material adverse
change, or any development involving a prospective material adverse change,
in
the business, properties, management, financial condition or results of
operations of the Company, (ii) any transaction which is material to the
Company, (iii) any obligation or liability, direct or contingent (including
any off-balance sheet obligations), incurred by the Company, which is material
to the Company, (iv) any change in the capital stock or outstanding
indebtedness of the Company or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company;
(z) the
Company is not, and at no time during which a prospectus is required by
the Act
to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Securities
will the Company be, and, after giving effect to the offering and sale
of the
Securities, the Company will not be, an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(aa) the
Company is not and, after giving effect to the offering and sale of the
Securities, the Company will not be a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of a “holding company” or of a
“subsidiary company,” as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended (the “Public
Utility Holding Company Act”);
(bb) the
Company and its properties, assets and operations are in compliance with,
and
the Company holds all permits, authorizations and approvals required under,
Environmental Laws (as defined below); there are no past, present or, to
the
Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans that
could
reasonably be expected to give rise to any material costs or liabilities
to the
Company under, or to interfere with or prevent compliance by the Company
with,
Environmental Laws; the Company (i) is not the subject of any
investigation, (ii) has not received any notice or claim, (iii) is not
a party to or affected by any pending or, to the Company’s knowledge, threatened
action, suit or proceeding, (iv) is not bound by any judgment, decree or
order or (v) has not entered into any agreement, in each case relating to
any alleged violation of any Environmental Law or any actual or alleged
release
or threatened release or cleanup at any location of any Hazardous Materials
(as
defined below) (as used herein, “Environmental
Law”
means
any federal, state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or
other
binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous
Materials”
means
any material (including, without limitation, pollutants, contaminants,
hazardous
or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
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13 -
(cc) all
tax
returns required to be filed by the Company have been timely filed, and
all
taxes and other assessments of a similar nature (whether imposed directly
or
through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have been
timely
paid, other than those being contested in good faith and for which adequate
reserves have been provided;
(dd) the
Company maintains insurance covering its properties, operations, personnel
and
businesses as the Company reasonably deems adequate; such insurance insures
against such losses and risks to an extent which is adequate in accordance
with
customary industry practice to protect the Company and its business; all
such
insurance is fully in force on the date hereof and will be fully in force
at the
time of purchase and each additional time of purchase, if any; the Company
has
no reason to believe that it will not be able to renew any such insurance
as and
when such insurance expires;
(ee) the
Company maintains a system of internal accounting controls sufficient to
provide
reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with 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;
(ff) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company is made known to the Company’s Chief Executive Officer
and its [Principal Financial Officer] by others within the Company, and
such
disclosure controls and procedures are effective to perform the functions
for
which they were established; the Company’s independent auditors and the Audit
Committee of the board of directors of the Company have been advised of:
(i) all significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s ability to record,
process, summarize and report financial data; and (ii) all fraud, if any,
whether or not material, that involves management or other employees who
have a
role in the Company’s internal controls; all material weaknesses, if any, in
internal controls have been identified to the Company’s independent auditors;
since the date of the most recent evaluation of such disclosure controls
and
procedures and internal controls, there have been no significant changes
in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses; and the Company has taken all necessary
actions to ensure that, upon and at all times after the filing of the
Registration Statement, the Company and its officers and directors, in
their
capacities as such, will be in compliance in all material respects with
the
applicable provisions of the Xxxxxxxx-Xxxxx Act of
2002
(the “Xxxxxxxx-Xxxxx
Act”)
and
the rules and regulations promulgated thereunder;
(gg) “each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement,
the
Preliminary Prospectuses and the Prospectus has been made or reaffirmed
with a
reasonable basis and in good faith;
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14 -
(hh) the
issuance and sale of the Securities as contemplated hereby will not cause
any
holder of any shares of capital stock, securities convertible into or
exchangeable or exercisable for capital stock or options, warrants or other
rights to purchase capital stock or any other securities of the Company
to have
any right to acquire any shares of preferred stock of the Company;
(ii) neither
the Company nor any of its directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which
has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of the Securities;
(jj) 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
or
sale by the Company of the Securities;
(kk) the
Company owns or leases all such properties as are necessary to the conduct
of
its operations as presently conducted;
(ll) the
Company has fulfilled its obligations, if any, under Section 515 of the
Employee
Retirement Income Security Act of 1974, as amended, and the regulations
and
published interpretations thereunder (“ERISA”);
the
Company does not maintain nor is it required to contribute to a “welfare plan”
(as defined in Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than “continuation
coverage” (as defined in Section 602 of ERISA)); and the Company has not
incurred nor could it reasonably be expected to incur any withdrawal liability
under Section 4201 of ERISA, any liability under Section 4062, 4063, or
4064 of
ERISA, or any other liability under Title IV of ERISA;
(mm)
(1) Neither
the Company or Xxxxxxx’x Cove Holdings, LLC, nor any director, officer, agent or
affiliate of the Company is aware of or has taken any action, directly
or
indirectly, that would result in a violation by such persons of the FCPA
(as
defined below), including, without limitation, making use of the mails
or any
means or instrumentality of interstate commerce corruptly in furtherance
of an
offer, payment, promise to pay or authorization of the payment of any money,
or
other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate
for
foreign political office, in contravention of the FCPA and the Company
and, to
the knowledge of the Company, its affiliates have conducted their businesses
in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue
to
ensure, continued compliance therewith. “FCPA”
means
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
(2) The
operations of the Company are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money
laundering statutes of all jurisdictions, including the Money Laundering
Control
Act of 1986, as amended, the rules and regulations thereunder and any related
or
similar rules, regulations or guidelines, issued, administered or enforced
by
any governmental agency (collectively, the “Money
Laundering Laws”)
and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect
to the
Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
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15 -
(3) Neither
the Company or Xxxxxxx’x Cove Holdings, LLC, nor any director, officer, agent or
affiliate of the Company is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”);
and
the Company (either directly or through the Trust) will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or
other
person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(4) Neither
the Company or Xxxxxxx’x Cove Holdings, LLC, nor any officer or director has
violated: (a) the Bank Secrecy Act, as amended, (b) the Money
Laundering Laws, or (c) 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;
(nn) all
information contained in the questionnaires (the “Questionnaires”)
completed by Xxxxxxx’x Cove Holdings, LLC, and each of the Company’s officers
and directors and provided to the Underwriters as an exhibit to its, his
or her
Insider Letter is true and correct and the Company has not become aware
of any
information which would cause the information disclosed in the Questionnaires
completed by Xxxxxxx’x Cove Holdings, LLC, and each of the Company’s officers or
directors to become inaccurate and incorrect;
(oo) prior
to
the date hereof, none of the Company, its officers and directors nor Xxxxxxx’x
Cove Holdings, LLC, or any affiliates thereof had, and as of the Closing
Date,
the Company and such officers and directors, Xxxxxxx’x Cove Holdings, LLC and
their affiliates will not have had: (a) any specific Initial Business
Combination under consideration or contemplation or (b) any interactions or
discussions with any target business relating to a possible Initial Business
Combination;
(pp)
(1) Except
as
described in the Registration Statement, the Preliminary Prospectuses and
the
Prospectus, there are no claims, payments, arrangements, contracts, agreements
or understandings relating to the payment of a brokerage commission or
finder’s,
consulting, origination or similar fee by the Company or Xxxxxxx’x Cove
Holdings, LLC, with respect to the sale of the Securities hereunder or
any other
arrangements, agreements or understandings of the Company or, to the knowledge
of the Company, Xxxxxxx’x Cove Holdings, LLC that may affect the Underwriters’
compensation, as determined by the Financial Industry Regulatory Authority
(the
“FINRA”).
(2) The
Company has not made any direct or indirect payments (in cash, securities
or
otherwise) to: (i) any person, as a finder’s fee, consulting fee or
otherwise, in consideration of such person raising capital for the Company
or
introducing to the Company persons who raised or provided capital to the
Company; (ii) to any 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 of the Registration
Statement, other than payments to the Underwriters.
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16 -
(3) No
officer, director, or beneficial owner of any class of the Company’s securities
(whether debt or equity, registered or unregistered, regardless of the
time
acquired or the source from which derived) (any such individual or entity,
a
“Company
Affiliate”)
is a
member, a person associated, or affiliated with a member of the
FINRA.
(4) No
Company Affiliate is an owner of stock or other securities of any member
of the
FINRA (other than securities purchased on the open market).
(5) No
Company Affiliate has made a subordinated loan to any member of the
FINRA.
(6) No
proceeds from the sale of the Securities (excluding underwriting compensation
as
disclosed in the Disclosure Package and the Prospectus) will be paid to
any
FINRA member, or any persons associated or affiliated with a member of
the
FINRA.
(7) The
Company has not issued any warrants or other securities, or granted any
options,
directly or indirectly to anyone who is a potential underwriter in the
offering
or a related person (as defined by FINRA rules) of such an underwriter
within
the 180-day period prior to the initial filing date of the Registration
Statement.
(8) No
person
to whom securities of the Company have been privately issued within the
180-day
period prior to the initial filing date of the Registration Statement has
any
relationship or affiliation or association with any member of the
FINRA.
(9) No
FINRA
member intending to participate in the offering of the Securities has a
conflict
of interest with the Company. As used herein, “participating in the offering,”
or words of like import, means participation in the preparation of the
offering
or other documents, participation in the distribution of the offering on
an
underwritten, non-underwritten, or any other basis, furnishing of customer
and/or broker lists for solicitation, or participation in any advisory
or
consulting capacity to the Company related to the offering. For this purpose,
a
“conflict of interest” exists when a member of the FINRA and/or its associated
persons, parent or affiliates in the aggregate beneficially own 10% or
more of
the Company’s outstanding subordinated debt or common equity, or 10% or more of
the Company’s preferred equity. “FINRA member participating in the offering”
includes any associated person of an FINRA member that is participating
in the
offering, any members of such associated person’s immediate family, and any
affiliate of an FINRA member that is participating in the offering;
(qq) neither
Xxxxxxx’x Cove Holdings, LLC nor any director or officer of the Company is
subject to a non-competition agreement, non-solicitation agreement or other
agreement with any employer or prior employer or any other person which
could
materially affect its ability to be and act in the capacity of stockholder,
officer, director or service provider of the Company or to refer business
opportunities to the Company;
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17 -
(rr) the
agreements and documents described in the Preliminary Prospectuses, the
Registration Statement and the Prospectus conform in all material respects
to
the descriptions thereof contained therein. There is no franchise, contract
or
other document of a character required to be described in the Registration
Statement, the Preliminary Prospectuses or the Prospectus, or to be filed
as an
exhibit to the Registration Statement, which is not described or filed
as
required (and the Preliminary Prospectuses contain in all material respects
the
same description of the foregoing matters contained in the Prospectus);
and the
statements in the Preliminary Prospectuses and the Prospectus under the
headings
“Proposed Business,” “Principal Stockholders,” “Certain Relationships and
Related Transactions,” “Description of Securities,” and “Material U.S. Federal
Income Tax Considerations,” insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and
fair
summaries of such legal matters, agreements, documents or
proceedings;
(ss) no
relationship, direct or indirect, exists between or among any of the Company
or
any affiliate of the Company, on the one hand, and any director, officer,
stockholder, special advisor, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Act
or the
Exchange Act to be described in the Preliminary Prospectuses or the Prospectus
which is not described as required. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit
of
any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement, the
Preliminary Prospectuses and the Prospectus. The Company has not extended
or
maintained credit, arranged for the extension of credit, or renewed an
extension
of credit, in the form of a personal loan to or for any director or officer
of
the Company;
(tt) the
Company has not offered, or caused the Underwriters to offer, the Securities
to
any person or entity with the intention of unlawfully influencing: (a) a
customer or supplier of the Company or any affiliate of the Company to
alter the
customer’s or supplier’s level or type of business with the Company or such
affiliate or (b) a journalist or publication to write or publish favorable
information about the Company or any such affiliate;
(uu) the
Company has not prepared or used a Free Writing Prospectus;
(vv) upon
delivery and payment for the Securities on the time of purchase and any
additional time of purchase, the Company will not be subject to Rule 419
under
the Act and none of the Company’s outstanding securities will be deemed to be a
“xxxxx stock” as defined in Rule 3a51-1 under the Exchange
Act.
In
addition, any certificate signed by any officer, director or affiliate
of the
Company and delivered to the Underwriters or counsel for the Underwriters
in
connection with the offering of the Securities shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby,
to
each Underwriter.
4. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate
in
qualifying the Securities
for
offering and sale under the securities or blue sky laws of such states
or other
jurisdictions as you may designate and to maintain such qualifications
in effect
so long as you may request for the distribution of the Securities; provided,
however,
that
the Company shall not be required to qualify as a foreign corporation or
to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the
Securities); and to promptly advise you of the receipt by the Company of
any
notification with respect to the suspension of the qualification of the
Securities for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
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18 -
(b) to
make
available to the Underwriters in New York City, as soon as practicable
after
this Agreement becomes effective, and thereafter from time to time to furnish
to
the Underwriters, as many copies of the Prospectus (or of the Prospectus
as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement)
as
the Underwriters may request for the purposes contemplated by the Act;
in case
any Underwriter is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection with the
sale of
the Securities, a prospectus after the nine-month period referred to in
Section
10(a)(3) of the Act, the Company will prepare, at its expense, promptly
upon
request such amendment or amendments to the Registration Statement and
the
Prospectus as may be necessary to permit compliance with the requirements
of
Section 10(a)(3) of the Act;
(c) if,
at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement,
or a
Registration Statement under Rule 462(b) under the Act, to be filed with
the
Commission and become effective before the Securities may be sold, the
Company
will use its best efforts to cause such post-effective amendment or such
Registration Statement to be filed and become effective, and will pay any
applicable fees in accordance with the Act, as soon as possible; and the
Company
will advise you promptly and, if requested by you, will confirm such advice
in
writing, (i) when such post-effective amendment or such Registration
Statement has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the Commission pursuant to
Rule 424(b) under the Act (which the Company agrees to file in a timely
manner in accordance with such Rules);
(d) to
advise
you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement
or the
Exchange Act Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information with respect thereto, or of notice
of
institution of proceedings for, or the entry of a stop order, suspending
the
effectiveness of the Registration Statement and, if the Commission should
enter
a stop order suspending the effectiveness of the Registration Statement,
to use
its best efforts to obtain the lifting or removal of such order as soon
as
possible; to advise you promptly of any proposal to amend or supplement
the
Registration Statement or the Exchange Act Registration Statement, any
Preliminary Prospectus or the Prospectus, and to provide you and Underwriters’
counsel copies of any such documents for review and comment a reasonable
amount
of time prior to any proposed filing and to file no such amendment or supplement
to which you shall object in writing;
(e) subject
to Section 4(d) hereof, to file promptly all reports and documents and
any
preliminary or definitive proxy or information statement required to be
filed by
the Company with the Commission in order to comply with the Exchange Act
for so
long as a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule)
in
connection with any sale of Securities; and to provide you, for your review
and
comment, with a copy of such reports and statements and other documents
to be
filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange
Act
during such period a reasonable amount of time prior to any proposed filing,
and
to file no such report, statement or document to which you shall have objected
in writing; and to promptly notify you of such filing;
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19 -
(f) to
advise
the Underwriters promptly of the happening of any event within the period
during
which a prospectus is required by the Act to be delivered (whether physically
or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Securities, which event could require the making
of
any change in the Prospectus then being used so that the Prospectus would
not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and to advise
the
Underwriters promptly if, during such period, it shall become necessary
to amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to
Section hereof, to prepare and furnish, at the Company’s expense, to the
Underwriters promptly such amendments or supplements to such Prospectus
as may
be necessary to reflect any such change or to effect such
compliance;
(g) if,
at
any time prior to the filing of the Prospectus pursuant to Rule 424(b)
under the Act, any event occurs as a result of which the Disclosure Package
would include any untrue statement of a material fact or omit to state
any
material fact necessary to make the statements therein in the light of
the
circumstances under which they were made at such time not misleading, the
Company will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct such statement
or omission; and (iii) supply any amendment or supplement to you in such
quantities as you may reasonably request.
(h) to
make
generally available to its security holders, and to deliver to you, an
earnings
statement of the Company (which will satisfy the provisions of Section
11(a) of
the Act) covering a period of twelve months beginning after the effective
date
of the Registration Statement (as defined in Rule 158(c) under the Act)
as soon
as is reasonably practicable after the termination of such twelve-month
period
but in any case not later than [to
be inserted: due date of 10-K/10-Q that would qualify under Rule 158 as an
earnings statement covering 12 months after effectiveness];
(i) to
furnish to you copies of the Registration Statement, as initially filed
with the
Commission, and of all amendments thereto (including all exhibits thereto)
and
sufficient copies of the foregoing (other than exhibits) for distribution
of a
copy to each of the other Underwriters;
(j) to
apply
the net proceeds from the sale of the Securities in the manner set forth
under
the caption “Use of Proceeds” in the Prospectus and Disclosure Package and to
file such reports with the Commission with respect to the sale of the Securities
and the application of the proceeds therefrom as may be required by Rule
463
under the Act;
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20 -
(k) to
pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Preliminary Prospectus,
the
Prospectus, and any amendments or supplements thereto, and the printing
and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Securities including any stock or transfer taxes
and
stamp or similar duties payable upon the sale, issuance or delivery of
the
Securities to the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing
of
copies of each thereof to the Underwriters and (except closing documents)
to
dealers (including costs of mailing and shipment), (iv) the qualification
of the Securities for offering and sale under state or foreign laws and
the
determination of their eligibility for investment under state or foreign
law
(including the legal fees and filing fees and other disbursements of counsel
for
the Underwriters) and the printing and furnishing of copies of any blue
sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Securities on any securities exchange or
qualification of the Securities for quotation on the AMEX and any registration
thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Securities by the FINRA, including the legal fees and filing
fees and other disbursements of counsel to the Underwriters relating to
FINRA
matters, (vii) the fees and disbursements of any transfer agent or
registrar for the Securities, (viii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Securities to prospective investors
and the Underwriters’ sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers
of
the Company and any such consultants, and the cost of any aircraft chartered
in
connection with the road show, (ix) the costs and expenses of qualifying
the Securities for inclusion in the book-entry settlement system of the
DTC,
(x) the preparation and filing of the Exchange Act Registration Statement,
including any amendments thereto and (xi) the performance of the Company’s other
obligations hereunder;
(l) beginning
on the date hereof and ending on, and including, the date that is 180 days
after
the date of the Prospectus (the “Lock-Up
Period”),
without the prior written consent of the Representatives, not to (i) issue,
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any
option to purchase or otherwise dispose of or agree to dispose of, directly
or
indirectly, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of
the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, with respect to, any Units, Common Stock, Warrants or any other
securities of the Company that are substantially similar to Units, Common
Stock,
Warrants or any securities convertible into or exchangeable or exercisable
for,
or any warrants or other rights to purchase, the foregoing, (ii) file or
cause to become effective a registration statement under the Act relating
to the
offer and sale of any Units, Common Stock, Warrants or any other securities
of
the Company that are substantially similar to Units, Common Stock, Warrants
or
any securities convertible into or exchangeable or exercisable for, or
any
warrants or other rights to purchase, the foregoing, (iii) enter into any
swap or other arrangement that transfers to another, in whole or in part,
any of
the economic consequences of ownership of Units, Common Stock, Warrants
or any
other securities of the Company that are substantially similar to Units,
Common
Stock, Warrants or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Units, Common
Stock, Warrants or such other securities, in cash or otherwise or
(iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, the registration of the
offer and sale of the Securities as contemplated by this Agreement; provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15)
calendar days plus three (3) business days before the last day of the
Lock-Up Period and ends on the last day of the Lock-Up Period, the Company
issues an earnings release or material news or a material event relating
to the
Company occurs; or (b) prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the
sixteen (16) day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Section 4(l) shall continue to apply
until the expiration of the date that is fifteen (15) calendar days plus
three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs;
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21 -
(m) prior
to
the time of purchase or any additional time of purchase, as the case may
be, to
issue no press release or other communication directly or indirectly and
hold no
press conferences with respect to the Company, the financial condition,
results
of operations, business, properties, assets, or liabilities of the Company,
or
the offering of the Securities, without your prior consent;
(n) not,
at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Securities by means of any “prospectus” (within
the meaning of the Act), or use any “prospectus” (within the meaning of the Act)
in connection with the offer or sale of the Securities, in each case other
than
the Prospectus;
(o) not
to
directly or indirectly, any action designed, or which will constitute,
or has
constituted, or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of the Securities;
(p) to
use
its best efforts to cause the Units, Common Stock and Warrants to be listed
on
the AMEX and to maintain such listing of the Units, Common Stock and Warrants
on
the AMEX;
(q) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Units, Common Stock and
Warrants;
(r) not
to
make any offer relating to the Securities that would constitute an Issuer
Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433;
(s) for
a
period of at least four (4) years from the effective date of the
Registration Statement, or until such earlier time upon which the Company
is
required to be liquidated or, in the case of the Warrants, until all of
the
Warrants have expired or are redeemed, to use its best efforts to maintain
the
registration of the Units, Common Stock and Warrants under the provisions
of the
Exchange Act. The Company will not deregister the Units, Common Stock or
Warrants under the Exchange Act without the prior written consent of the
Representatives;
(t) to,
on
the date hereof, retain its registered independent public accountants to
audit
the financial statements of the Company as of the time of purchase (the
“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds for the offering
of the
Securities and the Insider Warrants. As soon as the Audited Financial Statements
become available, the Company shall immediately file a Current Report on
Form 8-K with the Commission, which Report shall contain the Company’s
Audited Financial Statements. Additionally, upon the Company’s receipt of the
proceeds from the exercise of all or any portion of the Over-Allotment
Option,
the Company shall immediately file a Current Report on Form 8-K with the
Commission, which report shall disclose the Company’s sale of the Additional
Securities and its receipt of the proceeds therefrom;
(u) for
a
period of at least three (3) years from the effective date of the
Registration Statement or until such earlier time that the Company is required
to be liquidated, to, at its expense, 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, if any, of quarterly financial
information to stockholders;
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22 -
(v) for
a
period of five (5) years from the effective date of the Registration
Statement or until such earlier time that the Company is required to be
liquidated, to furnish to the Representatives such copies of 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
such
additional documents and information with respect to the Company as the
Representatives may from time to time reasonably request;
(w) that,
(i) In
no
event will the fees payable under the Services Agreement be more than $10,000
per month in the aggregate.
(ii) Except
as
set forth in this subsection (ii), the Company shall not pay Xxxxxxx’x Cove
Holdings, LLC or any of the Company’s directors or officers or any of their
affiliates any fees, reimbursements, cash payments or compensation of any
kind
(including finder’s and consulting fees and the issuance of securities of the
Company) for services rendered to the Company prior to, or in connection
with,
the consummation of the Initial Business Combination; provided
that the
Company’s officers and directors shall be entitled to reimbursement from the
Company for their out-of-pocket expenses incurred in connection with seeking
and
consummating an Initial Business Combination from the amounts not held
in the
Trust Account and interest income of up to $2,500,000 which may be released
to
the Company from the Trust Account.
(iii) The
Company shall not consummate an Initial Business Combination with any
Underwriter, or selling group member, or any of their affiliates;
(x) that
the
Trust Agreement, Warrant Agreement, Insider Letters, Private Placement
Agreement, Founder’s Securities Purchase Agreement, and Escrow Agreement shall
not be amended, modified or otherwise changed without the prior written
consent
of the Representatives [add
other agreements, if applicable];
(y)
(i) 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 or acquisition
candidate or to provide any other merger and acquisition services, the
Company
will provide the following to the FINRA and the Representatives prior to
the
consummation of the Initial 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 2710 of the FINRA’s Conduct Rules. The Company also agrees
that proper disclosure of such arrangement or potential arrangement will
be made
in the proxy statement which the Company will file for purposes of soliciting
stockholder approval for the Initial Business Combination;
(ii) to
advise
the 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 Securities;
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23 -
(z) to
cause
the proceeds to be held in the Trust Account to be invested only in United
States “government securities” within the meaning of Section 2(a)(16) of the
Investment Company Act having a maturity of 180 days or less, and/or in
any open
ended investment company registered under the Investment Company Act that
holds
itself out as a money market fund selected by the Company meeting the conditions
of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated under
the
Investment Company Act, as set forth in the Trust Agreement and disclosed
in the
Preliminary Prospectuses and the Prospectus. The Company will otherwise
conduct
its business in a manner so that it will not become subject to the Investment
Company Act. Furthermore, once the Company consummates the Initial Business
Combination, it will be engaged in a business other than that of investing,
reinvesting, owning, holding or trading securities;
(aa) during
the period prior to the Company’s Initial Business Combination, the Company may
instruct the Trustee under the Trust Agreement to release (1) to the
Company from the Trust Account interest income earned on the Trust Account
balance to pay any taxes incurred by the Company, (2) to the Company’s
redeeming stockholders voting against the Extended Period (as defined below)
from the Trust Account, as described in the Preliminary Prospectuses and
the
Prospectus, and (3) to the Company from the Trust Account interest income
earned of up to $2,500,000 on the amounts held in the Trust Account to
fund the
Company’s working capital requirements. After an aggregate of $2,500,000 is
released to the Company, any interest income earned on the amounts held
in the
Trust Account (net of taxes payable and amounts paid to redeeming stockholders
voting against the Extended Period) will remain in the Trust Account until
the
earlier of the consummation of the Company’s Initial Business Combination or its
liquidation;
(bb) to
reserve and keep available that maximum number of its authorized but unissued
securities which are issuable upon exercise of any of the Founder’s Warrants,
the Insider Warrants, or the Warrants outstanding from time to
time;
(cc) prior
to
the consummation of the Initial Business Combination or the liquidation
of the
Trust Account, not to issue any shares of Common Stock, Warrants or any
options
or other securities convertible into or exchangeable for Common Stock or
any
shares of preferred stock which participate in any manner in the Trust
Account
or which vote as a class with the Common Stock on the Extended Period or
an
Initial Business Combination;
(dd) not
to
consummate any other business combination, merger, capital stock exchange,
asset
acquisition, stock purchase, reorganization or similar transaction prior
to the
Initial Business Combination;
(ee) prior
to
the consummation of the Initial Business Combination or the liquidation
of the
Trust Account, to cause the Company’s audit committee to review and approve all
payments made to Xxxxxxx’x Cove Holdings, LLC, the Company’s officers, directors
or the Company’s or their affiliates and to cause any payments made to members
of the Company’s audit committee or their affiliates to be reviewed and approved
by the Company’s board of directors, with any interested directors abstaining
from such review and approval;
(ff) prior
to
the consummation of the Initial Business Combination or the liquidation
of the
Trust Account, to cause the Company’s audit committee to monitor compliance on a
quarterly basis with the terms of the offering of the Securities and, if
any
noncompliance is identified, immediately to take all action necessary to
rectify
such noncompliance or otherwise cause compliance with the terms of the
offering
of the Securities;
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24 -
(gg) prior
to
the consummation of the Initial Business Combination or the liquidation
of the
Trust Account, not to enter into any transaction with any of the Company’s
officers or directors or any of the Company’s or their respective affiliates,
including loans by the Company’s officers and directors and any forgiveness of
loans, (1) without the prior approval by a majority of the Company’s
disinterested, “independent” (as defined below) directors or the members of the
Company’s board of directors who do not have an interest in the transaction, in
either case who had access, at the Company’s expense, to the Company’s attorneys
or independent legal counsel, and (2) unless the Company’s disinterested,
“independent” (as defined below) directors determine that the terms of such
transaction are no less favorable to the Company than those that would
be
available to the Company with respect to such a transaction from unaffiliated
third parties (as used herein “independent”
means
a
director who qualifies as (a) an “independent director” under Section 121
of the AMEX’s AMEX Company Guide and (b) independent under Rule 10A-3 under
the Exchange Act).
(hh) to
use
its best efforts to prevent the Company from becoming subject to Rule 419
under
the Act prior to the consummation of the Initial Business Combination,
including, but not limited to, using its best efforts to prevent any of
the
Company’s outstanding securities from being deemed to be a “xxxxx stock” as
defined in Rule 3a51-1 under the Exchange Act during such period;
(ii) to
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (1) transactions are executed in accordance
with management’s general or specific authorization, (2) transactions are
recorded as necessary in order to permit preparation of financial statements
in
accordance with U.S. generally accepted accounting principles and to maintain
accountability for assets, (3) access to assets is permitted only in
accordance with management’s general or specific authorization, and (4) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(jj) as
soon
as it is legally required to do so, the Company and any of the Company’s
directors or officers, in their capacities as such, shall take all actions
necessary to (1) comply with any provision of the Xxxxxxxx-Xxxxx Act and
the rules and regulations promulgated in connection therewith, including
Section
402 related to loans and Sections 302 and 906 related to certifications
and
(2) comply with the requirements of the AMEX’s AMEX Company
Guide;
(kk) not
to
take any action or omit to take any action that would cause the Company
to be in
breach or violation of its Amended and Restated Certificate of Incorporation,
as
amended, or Bylaws, as amended. Prior to the consummation of an Initial
Business
Combination or until the distribution of the Trust Account, the Company
will not
amend its Amended and Restated Certificate of Incorporation without the
prior
written consent of the Representatives; provided,
that
the Company may amend its Amended and Restated Certificate of Incorporation
as
provided below in Section 4(ll);
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25 -
(ll) in
the
event the Company has entered into a definitive agreement with respect
to an
Initial Business Combination within 24 months from the date of the Prospectus
and the Company seeks stockholder approval of the Extended Period (as defined
below), as described in the Preliminary Prospectuses and the Prospectus,
to
cause Xxxxxxx’x Cove Holdings, LLC and the Company’s directors and officers to
vote all their Founder’s Shares in accordance with a majority of the shares of
Common Stock voted by the Public Stockholders (as defined below) and to
vote any
other shares of Common Stock held by them, whenever and however acquired,
in
favor of the Extended Period. At the time the Company seeks approval of
the
Extended Period, the Company will offer to each Public Stockholder the
right to
redeem their shares of Common Stock at a per share redemption price (the
“Extended
Period Redemption Price”),
calculated as of the date of the meeting of stockholders called for the
purpose
of approving the Extended Period, equal to (A) the amount in the Trust
Account (inclusive of (x) the proceeds from the offering of the Securities
and the sale of Insider Warrants held in trust, (y) the amount held in the
Trust Account representing the Deferred Discount and (z) any interest
income earned on the funds held in the Trust Account, net of taxes payable,
that
are not released to the Company to cover its operating expenses in accordance
with Section 4(aa)), divided by (B) the total number of IPO Shares (as
defined below). Further, in connection with any Extended Period the Company
submits to the Company’s stockholders for approval, the Company shall also
submit to its stockholders a proposal to amend the Company’s Amended and
Restated Certificate of Incorporation to provide for the Company’s corporate
life to continue until [_______], 2011, thereby extending the limitation
that
the Company’s corporate life continue only until [_______], 2010. If
(A) the Company has entered into a definitive agreement with respect to an
Initial Business Combination within 24 months from the date of the Prospectus
and (B) if (x) a majority of the shares voted by the holders of IPO
Shares are voted to approve the Extended Period, (y) holders of no more
than one share less than 40% of the IPO Shares vote against such approval
of the
Extended Period and elect to redeem their IPO Shares, and (z) a majority of
the Company’s outstanding shares of Common Stock are voted to approve the
amendment to the Company’s Amended and Restated Certificate of Incorporation to
provide for the Company’s continued existence until [_______], 2011, the Company
will have an additional 12 months from the date of the Prospectus to complete
an
Initial Business Combination (the “Extended
Period”)
and
the Company will redeem shares, based upon the Extended Period Redemption
Price,
from those holders of IPO Shares who affirmatively requested such redemption
and
who voted against the Extended Period. Only Public Stockholders shall be
entitled to receive distributions from the Trust Account in connection
with the
approval of the Extended Period, and the Company shall pay no distributions
with
respect to any other holders of shares of capital stock of the Company.
If
holders of 40% or more of the IPO Shares vote against approval of the Extended
Period and elect to redeem their IPO Shares (or if the Extended Period
is not
approved by a majority of the shares voted by the holders of IPO Shares
or the
amendment to the Company’s Amended and Restated Certificate of Incorporation is
not approved by a majority of the Company’s outstanding shares of Common Stock),
the Company will not extend the date before which it must complete an Initial
Business Combination beyond 24 months from the date of the Prospectus and
will
not redeem such shares.
(mm) in
connection with an Initial Business Combination,
(i) that
prior to commencing its due diligence investigation of any operating business
or
assets which the Company seeks to acquire for its Initial Business Combination
(a “Target
Business”)
or
obtaining the services of any vendor or service provider, the Company will
use
its best efforts to cause the Target Business or vendor or service provider
to
execute a waiver letter in the form attached hereto as Exhibit D.
If a
Target Business or other third party were to refuse to enter into such
a waiver,
the Company hereby agrees to enter into discussions with such Target Business
or
engage such other third party only if the Company determines that the Company
could not obtain, on a reasonable basis, substantially similar services
or
opportunities from another entity or person willing to enter into such
a
waiver.
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26 -
(ii) that
prior to the consummation of the Initial Business Combination, the Company
will
submit such transaction to the Company’s stockholders for their approval (an
“Initial
Business Combination Vote”)
even
if the nature of the transaction is such as would not ordinarily require
stockholder approval under applicable state law; and in the event that
the
Company does not effect an Initial Business Combination within 24 months
from
the date of the Prospectus (subject to extension for the Extended Period
in
accordance with Section 4(ll)), the Company will notify the Delaware Secretary
of State in writing that its corporate existence is ceasing as of
,
2010 (or ______, 2011, in the event the Extended Period is approved) and
include with such notice payment of any franchise taxes then due to or
assessable by the State of Delaware and the Company will be liquidated
and will
distribute to all holders of the Common Stock issued as part of the Units
in
this offering (the “IPO
Shares”),
an
aggregate sum equal to the Company’s “Liquidation Value.” The Company’s
“Liquidation
Value”
shall
mean the greater of (i) the Company’s book value, as determined by the
Company and approved by the independent registered public accounting firm
then
engaged by the Company, or (ii) the amount of funds in the Trust Account
(including (a) the proceeds held in the Trust Account from the offering of
the Securities and the sale of the Insider Warrants, (b) the amount held in
the Trust Account representing the Deferred Discount and (c) any interest
income earned on the funds held in the Trust Account, net of taxes payable,
that
are not released to the Company to cover its operating expenses in accordance
with Section 4(aa)) less any amounts paid to the Company’s redeeming
stockholders voting against the Extended Period. Only holders of IPO Shares
shall be entitled to receive liquidating distributions and the Company
shall pay
no liquidating distributions with respect to any other shares of capital
stock
of the Company or Warrants, Founder’s Warrants or Insider Warrants. With respect
to the Initial Business Combination Vote, the Company shall cause Xxxxxxx’x Cove
Holdings, LLC and the Company’s directors and officers to vote all their
Founder’s Shares in accordance with a majority of the shares of Common Stock
voted by the Public Stockholders (as defined below) and to vote any other
shares
of Common Stock held by them, whenever and however acquired, in favor of
the
Initial Business Combination. At the time the Company seeks approval of
the
Initial Business Combination, the Company will offer to each holder of
IPO
Shares (the “Public
Stockholders”)
the
right to redeem their shares of Common Stock at a per share redemption
price
(the “Redemption
Price”),
calculated as of two business days prior to the consummation of such proposed
Initial Business Combination, equal to (A) the amount in the Trust Account
(inclusive of (x) the proceeds from the offering of the Securities and the
sale of Insider Warrants held in trust, (y) the amount held in the Trust
Account representing the Deferred Discount and (z) any interest income
earned on the funds held in the Trust Account, net of taxes payable, that
are
not released to the Company to cover its operating expenses in accordance
with
Section 4(aa)) less any amounts paid to the Company’s redeeming
stockholders voting against the Extended Period, divided by (B) the total
number of IPO Shares. Further, in connection with any Initial Business
Combination the Company submits to the Company’s stockholders for approval, the
Company shall also submit to its stockholders a proposal to amend the Company’s
Amended and Restated Certificate of Incorporation to provide for the Company’s
perpetual existence, thereby removing the limitation that the Company’s
corporate life continue only until [_______], 2010 (or ______, 2011, in the
event the Extended Period is approved). If (x) a majority of the shares
voted by the holders of IPO Shares are voted to approve the Initial Business
Combination, (y) holders of no more than one share less than 40% of the IPO
Shares vote against such approval of the Initial Business Combination or
the
approval of the Extended Period, as the case may be, and elect to redeem
their
IPO Shares, on a cumulative basis, including the shares as to which redemption
rights were exercised in connection with the stockholder vote, if any,
required
to approve the Extended Period and the stockholder vote required to approve
the
Initial Business Combination, and (z) a majority of the Company’s
outstanding shares of Common Stock are voted to approve the amendment to
the
Company’s Amended and Restated Certificate of Incorporation to provide for the
Company’s perpetual existence, the Company will proceed with such Initial
Business Combination. If the Company proceeds with the Initial Business
Combination, it will redeem shares, based upon the Redemption Price, from
those
holders of IPO Shares who affirmatively requested such redemption and who
voted
against the Initial Business Combination. Only Public Stockholders shall
be
entitled to receive distributions from the Trust Account in connection
with the
approval of an Initial Business Combination, and the Company shall pay
no
distributions with respect to any other holders of shares of capital stock
of
the Company. If holders of 40% or more of the IPO Shares vote against approval
of a potential Initial Business Combination or approval of the Extended
Period,
as the case may be, and elect to redeem their IPO Shares, on a cumulative
basis,
including the shares as to which redemption rights were exercised in connection
with the stockholder vote, if any, required to approve the Extended Period
and
the stockholder vote required to approve the Initial Business Combination
(or if
the Initial Business Combination is not approved by a majority of the shares
voted by the holders of IPO Shares or the amendment to the Company’s Amended and
Restated Certificate of Incorporation is not approved by a majority of
the
Company’s outstanding shares of Common Stock), the Company will not proceed with
such Initial Business Combination and will not redeem such shares;
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27 -
(iii) that
the
initial Target Business or Target Businesses that it acquires in an Initial
Business Combination must have a fair market value equal to at least 80%
of sum
of the balance in the Trust Account, but excluding taxes payable by the
Company
and the Deferred Discount (including any of which relates to the Additional
Securities), at the time the Company enters into a definitive agreement
providing for the Company’s Initial Business Combination; provided,
however,
that,
if (A) the Company has entered into a definitive agreement with respect
to an
Initial Business Combination within 24 months from the date of the Prospectus,
(B) the Company has extended the date by which it must complete such Initial
Business Combination to [_______], 2011, and (C) the Company abandons such
Initial Business Combination, any Target Business or Target Businesses
that the
Company seeks to acquire in a subsequent Initial Business Combination must
have
a fair market value equal to at least 80% of sum of the balance in the
Trust
Account, but excluding taxes payable by the Company and the Deferred Discount
(including any of which relates to the Additional Securities), at the time
of
the stockholder vote on the Extended Period. The fair market value of such
business or businesses must be determined by the board of directors of
the
Company based upon standards generally accepted by the financial community,
such
as actual and potential sales, earnings and cash flow and book value. If
the
board of directors of the Company is not able to independently determine
that
the Target Business or Target Businesses have a fair market value of at
least
80% of sum of the balance in the Trust Account, but excluding the Deferred
Discount (including any of which relates to the Additional Securities),
at the
time of such Initial Business Combination, the Company will obtain an opinion
from an unaffiliated, independent investment banking firm which is a member
of
the FINRA and is reasonably acceptable to the Representatives with respect
to
the satisfaction of such criteria. The Company is not required to obtain
an
opinion from an investment banking firm as to the fair market value of
the
Target Business if the Company’s board of directors independently determines
that the Target Business does have sufficient fair market value, subject,
however, to the requirements of Section 4(mm)(iv);
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28 -
(iv) that,
in
the event the Company seeks to complete an Initial Business Combination
with a
Target Business that is affiliated with Xxxxxxx’x Cove Holdings, LLC, the
Company’s directors or officers or any of the Company’s or their affiliates, the
Company shall obtain an opinion from an unaffiliated, independent investment
banking firm which is
a
member of the FINRA and is reasonably acceptable to the Representatives
that
such
an Initial Business Combination is fair to the Company’s stockholders from a
financial point of view. Such opinion shall be included in the Company’s proxy
solicitation materials furnished to stockholders in connection with the
Initial
Business Combination Vote; and
(v) that
within five (5) Business Days following the consummation by the Company of
an Initial Business Combination, the Company shall cause an announcement
(the
“Initial
Business Combination Announcement”)
to be
placed, at its cost, in The Wall Street Journal, The New York Times and
a third
national publication to be selected by the Representatives announcing the
consummation of the Initial Business Combination and indicating that the
Underwriters were the underwriters in the offering. The Company shall supply
the
Representatives with a draft of the Initial Business Combination Announcement
and provide the Representatives with a reasonable opportunity to comment
thereon
in advance. The Company will not place the Initial Business Combination
Announcement without the final approval of the Representatives.
(nn) that
upon
the consummation of the Initial Business Combination, to pay to the
Representatives, on behalf of the Underwriters, the Deferred Discount.
Payment
of the Deferred Discount will be made out of the proceeds of this offering
held
in the Trust Account. The Underwriters shall have no claim to payment of
any
interest earned on the portion of the proceeds held in the Trust Account
representing the Deferred Discount. If the Company fails to consummate
its
Initial Business Combination within the required time period set forth
in the
Registration Statement, the Deferred Discount will not be paid to the
Representatives and will, instead, be included in the liquidation distribution
of the proceeds held in the Trust Account made to the holders of the IPO
Shares.
In connection with any such liquidation distribution, the Underwriters
will
forfeit any rights or claims to the Deferred Discount, including any accrued
interest thereon.
5. Reimbursement
of Underwriters’ Expenses.
If the
Securities are not delivered for any reason other than the termination
of this
Agreement pursuant to the fifth paragraph of Section 8 hereof or the default
by
one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described
in
Section 4(k) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and
to the
following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable,
at the
additional time of purchase, an opinion of Ellenoff Xxxxxxxx & Schole LLP,
counsel for the Company, addressed to the Underwriters, and dated the time
of
purchase or the additional time of purchase, as the case may be, with executed
copies for each of the other Underwriters, and in form and substance
satisfactory to UBS, in the form set forth in Exhibit B
hereto.
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29 -
(b) You
shall
have received from RK letters dated, respectively, the date of this Agreement,
the date of the Prospectus, the time of purchase and, if applicable, the
additional time of purchase, and addressed to the Underwriters (with executed
copies for each of the Underwriters) in the forms satisfactory to UBS,
which
letters shall cover, without limitation, the various financial disclosures
contained in the Registration Statement, the Preliminary Prospectuses and
the
Prospectus.
(c) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion of Xxxxxxxx Chance US LLP, counsel for
the
Underwriters, dated the time of purchase or the additional time of purchase,
as
the case may be, in form and substance reasonably satisfactory to
UBS.
(d) No
Prospectus or amendment or supplement to the Registration Statement or
the
Prospectus shall have been filed to which you shall have objected in
writing.
(e) The
Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the
Securities, under the Act pursuant to Rule 462(b) shall have been filed
and
shall have become effective under the Act or the Exchange Act, as the case
may
be. If Rule 430A under the Act is used, the Prospectus shall have been
filed
with the Commission pursuant to Rule 424(b) under the Act at or before
5:30 P.M., New York City time, on the second full business day after the
date of this Agreement (or such earlier time as may be required under the
Act).
(f) Prior
to
and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration
Statement and all amendments thereto shall not contain an untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; (iii) none of the
Preliminary Prospectuses or the Prospectus, and no amendment or supplement
thereto, shall include an untrue statement of a material fact or omit to
state a
material fact necessary in order to make the statements therein, in the
light of
the circumstances under which they are made, not misleading; and (iv) the
Disclosure Package, and all amendments or supplements thereto, shall not
include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(g) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Executive Officer
and its
[Principal Financial Officer], dated the time of purchase or the additional
time
of purchase, as the case may be, in the form attached as Exhibit C
hereto.
(h) You
shall
have received each of the signed Lock-Up Agreements referred to in
Section 4(l) hereof, and each such Lock-Up Agreement shall be in full force
and effect at the time of purchase and the additional time of purchase,
as the
case may be.
(i) At
the
time of purchase, the Company shall have furnished to the Representatives
Insider Letters, substantially in the form filed as exhibits to the Registration
Statement (as the same may be amended or supplemented from time to time)
from
each of Xxxxxxx’x Cove Holdings, LLC and each officer or director of the
Company.
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30 -
(j) On
the
date hereof, the Company shall have delivered to the Representatives executed
copies of the Trust Agreement, the Warrant Agreement, the Private Placement
Agreement, the Services Agreement, the Registration Rights Agreement, the
Founder’s Securities Purchase Agreement, and the Escrow Agreement [other
agreements, if applicable].
(k) On
the
date hereof, the time of purchase and,
if
applicable, at the additional time of purchase,
the
Company shall have requested and caused each of Xxxxxxx’x Cove Holdings, LLC,
and the Company’s directors and officers to have executed and furnished to the
Representatives a certificate, dated, as applicable, as of the date hereof,
the
time of purchase or, if applicable, at the additional time of purchase,
and
addressed to the Representatives, to the effect that, except as described
in the
Registration Statement, the Disclosure Package and the Prospectus, there
are no
claims, payments, arrangements, contracts, agreements or understandings
relating
to the payment of a brokerage commission or finder’s, consulting, origination or
similar fee by Xxxxxxx’x Cove Holdings, LLC or the Company’s directors or
officers with respect to the sale of the Securities hereunder or any other
arrangements, agreements or understandings by Xxxxxxx’x Cove Holdings, LLC or
such directors or officers that may affect the Underwriters’ compensation, as
determined by the FINRA.
(l) prior
to
the time of purchase, the entire proceeds of $3,050,000 from the sale of
the
Insider Warrants shall have been deposited in the Trust Account.
(m) At
the
time of purchase, all of the Founder’s
Securities
and the
Insider Warrants shall have been placed in escrow with the Escrow Agent
in
accordance with the Escrow Agreement.
(n) The
Company shall have furnished to you such other documents and certificates
as to
the accuracy and completeness of any statement in the Registration Statement,
any Preliminary Prospectus or the Prospectus as of the time of purchase
and, if
applicable, the additional time of purchase, as you may reasonably
request.
(o) The
Units, the Common Stock and the Warrants shall have been approved for listing
on
the AMEX, subject only to notice of issuance and
evidence of satisfactory distribution at or prior to the time of purchase
or the
additional time of purchase, as the case may be.
(p) The
FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
7. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed
and
delivered this Agreement.
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31 -
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of UBS, if (1) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary Prospectuses
and the Prospectus there has been any change or any development involving
a
prospective change in the business, properties, management, financial condition
or results of operations of the Company and its subsidiaries taken as a
whole,
the effect of which change or development is, in the sole judgment of UBS,
so
material and adverse as to make it impractical or inadvisable to proceed
with
the public offering or the delivery of the Securities on the terms and
in the
manner contemplated in the Registration Statement, the Preliminary Prospectuses
and the Prospectus, or (2) since the time of execution of this Agreement,
there shall have occurred: (A) a suspension or material limitation in
trading in securities generally on the NYSE, the AMEX or the NASDAQ Global
Market; (B) a suspension or material limitation in trading in the Company’s
securities on the AMEX; (C) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or
a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities
or acts of terrorism involving the United States or a declaration by the
United
States of a national emergency or war; or (E) any other calamity or crisis
or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause
(D) or
(E), in the sole judgment of UBS, makes it impractical or inadvisable to
proceed
with the public offering or the delivery of the Securities on the terms
and in
the manner contemplated in the Registration Statement, the Preliminary
Prospectuses and the Prospectus or (3) since the time of execution of this
Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or
potential downgrading or (B) any watch, review or possible change that does
not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company or any subsidiary of the Company by any
“nationally recognized statistical rating organization,” as that term is defined
in Rule 436(g)(2) under the Act.
If
UBS
elects to terminate this Agreement as provided in this Section 7, the Company
and each other Underwriter shall be notified promptly in writing.
If
the
sale to the Underwriters of the Securities, as contemplated by this Agreement,
is not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall
be
unable to comply with any of the terms of this Agreement, the Company shall
not
be under any obligation or liability under this Agreement (except to the
extent
provided in Sections 4(k), 5 and 9 hereof), and the Underwriters shall
be under
no obligation or liability to the Company under this Agreement (except
to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase
in Underwriters’ Commitments.
Subject
to Sections 6 and 7 hereof, if any Underwriter shall default in its obligation
to take up and pay for the Firm Securities to be purchased by it hereunder
(otherwise than for a failure of a condition set forth in Section 6 hereof
or a
reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 hereof) and if the number of Firm Securities which
all
Underwriters so defaulting shall have agreed but failed to take up and
pay for
does not exceed 10% of the total number of Firm Securities, the non-defaulting
Underwriters (including the Underwriters, if any, substituted in the manner
set
forth below) shall take up and pay for (in addition to the aggregate number
of
Firm Securities they are obligated to purchase pursuant to Section 1 hereof)
the
number of Firm Securities agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Securities shall be taken up
and
paid for by such non-defaulting Underwriters in such amount or amounts
as you
may designate with the consent of each Underwriter so designated or, in
the
event no such designation is made, such Securities shall be taken up and
paid
for by all non-defaulting Underwriters pro rata in proportion to the aggregate
number of Firm Securities set forth opposite the names of such non-defaulting
Underwriters in Schedule A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the
Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Securities hereunder unless all of the Firm Securities are purchased by
the
Underwriters (or by substituted Underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with
the
foregoing provision, the Company or you shall have the right to postpone
the
time of purchase for a period not exceeding five business days in order
that any
necessary changes in the Registration Statement and the Prospectus and
other
documents may be effected.
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32 -
The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A
hereto.
If
the
aggregate number of Firm Securities which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Firm
Securities which all Underwriters agreed to purchase hereunder, and if
neither
the non-defaulting Underwriters nor the Company shall make arrangements
within
the five business day period stated above for the purchase of all the Firm
Securities which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company to any Underwriter and
without
any liability on the part of any non-defaulting Underwriter to the Company.
Nothing in this paragraph, and no action taken hereunder, shall relieve
any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and the successors and assigns of all of the foregoing persons, from and
against
any loss, damage, expense, liability or claim (including the reasonable
cost of
investigation) which, jointly or severally, any such Underwriter or any
such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of
or is
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company)
or
arises out of or is based upon any omission or alleged omission to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement
or
alleged untrue statement of a material fact contained in, and in conformity
with
information concerning such Underwriter furnished in writing by or on behalf
of
such Underwriter through you to the Company expressly for use in, the
Registration Statement or arises out of or is based upon any omission or
alleged
omission to state a material fact in the Registration Statement in connection
with such information, which material fact was not contained in such information
and which material fact was required to be stated in such Registration
Statement
or was necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact included in any
Prospectus (the term Prospectus for the purpose of this Section 9 being
deemed
to include any Preliminary Prospectus, the Prospectus and any amendments
or
supplements to the foregoing), or in any “issuer information” (as defined in
Rule 433 under the Act) of the Company or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in
order to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, except, with respect to such Prospectus, insofar
as
any such loss, damage, expense, liability or claim arises out of or is
based
upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to
the
Company expressly for use in, such Prospectus or arises out of or is based
upon
any omission or alleged omission to state a material fact in such Prospectus
in
connection with such information, which material fact was not contained
in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under
which
they were made, not misleading.
-
33 -
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the
Company,
its directors and officers, and any person who controls the Company within
the
meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and
against
any loss, damage, expense, liability or claim (including the reasonable
cost of
investigation) which, jointly or severally, the Company or any such person
may
incur under the Act, the Exchange Act, the common law or otherwise, insofar
as
such loss, damage, expense, liability or claim arises out of or is based
upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to
the
Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company),
or
arises out of or is based upon any omission or alleged omission to state
a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information
and which
material fact was required to be stated in such Registration Statement
or was
necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in,
and in
conformity with information concerning such Underwriter furnished in writing
by
or on behalf of such Underwriter through you to the Company expressly for
use
in, a Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus in connection with
such
information, which material fact was not contained in such information
and which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company or an Underwriter
(as applicable, the “indemnifying
party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying party shall assume
the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may
have to
any indemnified party or otherwise. The indemnified party or parties shall
have
the right to employ its or their own counsel in any such case, but the
fees and
expenses of such counsel shall be at the expense of such indemnified party
or
parties unless the employment of such counsel shall have been authorized
in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable
period
of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different
from,
additional to or in conflict with those available to such indemnifying
party (in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties),
in
any of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel
(in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties
who
are parties to such Proceeding). The indemnifying party shall not be liable
for
any settlement of any Proceeding effected without its written consent,
such
indemnifying party agrees to indemnify and hold harmless the indemnified
party
or parties from and against any loss or liability by reason of such settlement.
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 the second sentence
of this
Section 9(c), then 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 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party
in
accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at
least 30 days’ prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect
any settlement of any pending or threatened Proceeding in respect of which
any
indemnified party is or could have been a party and indemnity could have
been
sought hereunder by such indemnified party, unless such settlement includes
an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an
admission
of fault or culpability or a failure to act by or on behalf of such indemnified
party.
-
34 -
(d) If
the
indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Units or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection
with
the statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received
by the
Underwriters, bear to the aggregate public offering price of the Units.
The
relative fault of the Company on the one hand and of the Underwriters on
the
other shall be determined by reference to, among other things, whether
the
untrue statement or alleged untrue statement of a material fact or omission
or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to
include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any
Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account
of the
equitable considerations referred to in subsection (d) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total
price at which the Units underwritten by such Underwriter and distributed
to the
public were offered to the public exceeds the amount of any damage which
such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No person
guilty of 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. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
-
35 -
(f) The
indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers
or
any person (including each partner, officer or director of such person)
who
controls any Underwriter within the meaning of Section 15 of the Act or
Section
20 of the Exchange Act, or by or on behalf of the Company, its directors
or
officers or any person who controls the Company within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Units. The Company
and
each Underwriter agree promptly to notify each other of the commencement
of any
Proceeding against it and, in the case of the Company, against any of the
Company’s officers or directors in connection with the issuance and sale of the
Securities, or in connection with the Registration Statement, any Preliminary
Prospectus or the Prospectus.
10. Information
Furnished by the Underwriters.
The
statements set forth in [the second sentence of the last paragraph on the
cover
page of the Prospectus and the statements set forth in the first and second
sentences of the third paragraph and the eleventh paragraph under the caption
“Underwriting”] in the Prospectus, only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute
the only information furnished by or on behalf of the Underwriters, as
such
information is referred to in Sections 3 and 9 hereof.
11. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate Department
and,
if to the Company, shall be sufficient in all respects if delivered or
sent to
the Company at the offices of the Company at 000 Xxxx Xxxxxxxxx, Xxxxx
000,
Xxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx, President and Chief Executive
Officer.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance
with,
the laws of the State of New York. The section headings in this Agreement
have
been inserted as a matter of convenience of reference and are not a part
of this
Agreement.
13. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued
in any
court other than the courts of the State of New York located in the City
and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company consents to the jurisdiction of such courts
and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising
out of
or in any way relating to this Agreement is brought by any third party
against
any Underwriter or any indemnified party. Each Underwriter and the Company
(on
its behalf and, to the extent permitted by applicable law, on behalf of
its
stockholders waive all right to trial by jury in any action, proceeding
or
counterclaim (whether based upon contract, tort or otherwise) in any way
arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court
shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by
suit
upon such judgment.
-
36 -
14. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit
of the
Underwriters and the Company and to the extent provided in Section 9 hereof
the
controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue
of this
Agreement.
15. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are
acting
pursuant to a contractual relationship created solely by this Agreement
entered
into on an arm’s length basis, and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, stockholders or creditors or any other person in connection
with any
activity that the Underwriters may undertake or have undertaken in furtherance
of the purchase and sale of the Company’s securities, either before or after the
date hereof. The Underwriters hereby expressly disclaim any fiduciary or
similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that
effect.
The Company and the Underwriters agree that they are each responsible for
making
their own independent judgments with respect to any such transactions and
that
any opinions or views expressed by the Underwriters to the Company regarding
such transactions, including, but not limited to, any opinions or views
with
respect to the price or market for the Company’s securities, do not constitute
advice or recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriters with respect to any breach or alleged
breach
of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to
such
transactions.
16. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company’s and any of the Underwriters’ respective businesses and/or
assets.
18. Miscellaneous.
UBS, an
indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from
any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect
to
sales and purchases of securities. Securities sold, offered or recommended
by
UBS are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise
an
obligation or responsibility of a branch or agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-
37 -
If
the
foregoing correctly sets forth the understanding among the Company and
the
several Underwriters, please so indicate in the space provided below for
that
purpose, whereupon this Agreement and your acceptance shall constitute
a binding
agreement among the Company and the Underwriters, severally.
|
Very
truly yours,
|
||
|
Xxxxxxx’x
Cove Acquisition Corporation
|
||
|
By:
|
||
|
Name:
Xxxxxxx X. Xxxx
|
||
|
Title:
President and Chief Executive
Officer
|
||
Accepted
and agreed to as of the date first above written, on behalf of themselves
and
the other several Underwriters named in Schedule
A
UBS
Securities LLC
Xxxxxx
Xxxxxx & Co., Inc.
By:
UBS
Securities LLC
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
Xxxxxx Xxxxxx & Co., Inc.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
A
|
Underwriter
|
Number
of
Firm
Securities
|
||
|
UBS
SECURITIES LLC
|
[____
|
] | |
|
XXXXXX
XXXXXX & CO., INC. .
|
[____
|
] | |
|
Total
|
[10,000,000
|
] |
SCHEDULE
B
[Not
Applicable]
EXHIBIT
A
Lock-Up
Agreement
___________
___, 2008
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Xxxxxx
Xxxxxx & Co., Inc.
[______________]
[______________]
Together
with the other Underwriters named
in
Schedule A to the Underwriting Agreement
referred
to herein
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting
Agreement”)
to be
entered into by Xxxxxxx’x Cove Acquisition Corporation, a Delaware corporation
(the “Company”),
and
you and the other underwriters named in Schedule A to the Underwriting
Agreement, with respect to the public offering (the “Offering”)
of
Units consisting of one share of the Company’s common stock, par value $0.0001
per share (the “Common
Stock”),
and
one Warrant to purchase one share of Common Stock of the Company.
In
order
to induce you to enter into the Underwriting Agreement, the undersigned
agrees
that, for a period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that is 180
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of UBS Securities
LLC
and Xxxxxx Xxxxxx & Co., Inc., (i) sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities
and
Exchange Commission (the “Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder (the “Exchange
Act”),
with
respect to, any Common Stock or any other securities of the Company that
are
substantially similar to Common Stock, or any securities convertible into
or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock
or
such other securities, in cash or otherwise or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) the registration of the offer and
sale of Units as contemplated by the Underwriting Agreement and the sale
of the
Units to the Underwriters (as defined in the Underwriting Agreement) in
the
Offering, (b) bona fide gifts, provided the recipient thereof agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement
or (c) dispositions to any trust for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided
that
such trust agrees in writing with the Underwriters to be bound by the terms
of
this Lock-Up Agreement. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendent, father, mother,
brother or sister of the undersigned.
A-1
In
addition, the undersigned hereby waives any rights the undersigned may
have to
require registration of Common Stock or other securities in connection
with the
filing of a registration statement relating to the Offering. The undersigned
further agrees that, for the Lock-Up Period, the undersigned will not,
without
the prior written consent of UBS Securities LLC and Xxxxxx Xxxxxx & Co.,
Inc., make any demand for, or exercise any right with respect to, the
registration of Units, Common Stock or any securities convertible into
or
exercisable or exchangeable for Common Stock, or warrants or other rights
to
purchase Common Stock or any such securities.
Notwithstanding
the above, if (a) during the period that begins on the date that is
fifteen (15) calendar days plus three (3) business days before the
last day of the Lock-Up Period and ends on the last day of the Lock-Up
Period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (b) prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results
during the sixteen (16) day period beginning on the last day of the Lock-Up
Period, then the restrictions imposed by this Lock-Up Agreement shall continue
to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of
the earnings release or the material news or material event occurs.
In
addition, the undersigned hereby waives any and all preemptive rights,
participation rights, resale rights, rights of first refusal and similar
rights
that the undersigned may have in connection with the Offering or with any
issuance or sale by the Company of any equity or other securities before
the
Offering, except for any such rights as have been heretofore duly
exercised.
The
undersigned hereby confirms that the undersigned has not, directly or
indirectly, taken, and hereby covenants that the undersigned will not,
directly
or indirectly, take, any action designed, or which has constituted or will
constitute or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of Units, shares of Common Stock or Warrants
of
the Company.
*
*
*
A-2
If
(i) the Company notifies you in writing that it does not intend to proceed
with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn or (iii) for any
reason the Underwriting Agreement shall be terminated prior to the “time of
purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement
shall be terminated and the undersigned shall be released from its obligations
hereunder.
|
Yours
very truly,
|
||
|
Name:
|
||
X-0
XXXXXXX
X-0
LIST
OF
PARTIES TO EXECUTE LOCK-UP AGREEMENTS
|
Name
|
Position
(if applicable)
|
|
|
1. Xxxx
X. Xxxxxx
|
Chairman
of the Board
|
|
|
2. Xxxxxxx
X. Xxxx
|
President,
Chief Executive Officer and Director
|
|
|
3. Xxxxx
X. Xxxxxxxxx
|
Director
|
|
|
4. Xxxxxxx’x
Cove Holdings, LLC
|
||
|
5. [Other]
|
[Other]
|
[All
directors, officers, security holders]
A-1-1
EXHIBIT
B
OPINION
OF ELLENOFF XXXXXXXX & SCHOLE LLP
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Xxxxxx
Xxxxxx & Co., Inc.
[______________]
[______________]
Together
with the other Underwriters named
in
Schedule A to the Underwriting Agreement
referred
to herein
Ladies
and Gentlemen:
We
are of
the opinion that:
|
1.
|
The
Company has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of Delaware,
with
full corporate power and authority to own, lease and operate
its
properties and conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus, to
execute and
deliver the Underwriting Agreement and to perform its obligations
thereunder, including, without limitation, to issue, sell and
deliver the
Units, including the underlying Common Stock and Warrants, as
contemplated
by the Underwriting Agreement.
|
|
2.
|
The
Company is duly qualified to do business as a foreign corporation
and is
in good standing in each jurisdiction where the ownership or
leasing of
its properties or the conduct of its businesses requires such
qualification, except where the failure to be so qualified and
in good
standing would not, individually or in the aggregate, have a
material
adverse effect on the business, properties, financial condition,
results
of operations or prospects of the
Company.
|
|
3.
|
The
Underwriting Agreement has been duly authorized, executed and
delivered by
the Company.
|
|
4.
|
The
Warrant Agreement has been duly authorized, executed and delivered
by the
Company and is a valid and binding agreement of the Company,
enforceable
against the Company in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
or
similar laws affecting creditors’ rights generally from time to time in
effect and by equitable principles of general
applicability.
|
|
5.
|
Each
of the Insider Letters has been duly authorized, executed and
delivered by
each of Xxxxxxx’x Cove Holdings, LLC and the Company’s directors and
executive officers, respectively, and is a valid and binding
agreement of
each of Xxxxxxx’x Cove Holdings, LLC and the Company’s directors and
officers, respectively, enforceable against each of Xxxxxxx’x Cove
Holdings, LLC and the Company’s directors and officers, respectively, in
accordance with its terms except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability.
|
|
6.
|
The
Trust Agreement has been duly authorized, executed and delivered
by the
Company and is a valid and binding agreement of the Company,
enforceable
against the Company in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
or
similar laws affecting creditors’ rights generally from time to time in
effect and by equitable principles of general
applicability.
|
B-1
|
7.
|
The
Escrow Agreement has been duly authorized, executed and delivered
by each
of the Company and Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
and is a valid and binding agreement of each of the Company and
Xxxxxxx’x
Cove Holdings, LLC [and other
stockholders],
enforceable against each of the Company and Xxxxxxx’x Cove Holdings, LLC
[and other
stockholders]
in accordance with its terms except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability
|
|
8.
|
The
Services Agreement has been duly authorized, executed and delivered
by
each of the Company and Xxxxxxx’x Cove Holdings, LLC and is a valid and
binding agreement of each of the Company and Xxxxxxx’x Cove Holdings, LLC,
enforceable against each of the Company and Xxxxxxx’x Cove Holdings, LLC
in accordance with its terms except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability.
|
|
9.
|
The
Registration Rights Agreement has been duly authorized, executed
and
delivered by each of the Company and Xxxxxxx’x Cove Holdings, LLC [and
other
stockholders]
and is a valid and binding agreement of each of the Company and
Xxxxxxx’x
Cove Holdings, LLC [and other
stockholders]
enforceable against each of the Company and Xxxxxxx’x Cove Holdings, LLC
[and other
stockholders]
in accordance with its terms except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability.
|
|
10.
|
The
Private Placement Agreement has been duly authorized, executed
and
delivered by each of the Company and Xxxxxxx’x Cove Holdings, LLC and is a
valid and binding agreement of each of the Company and Xxxxxxx’x Cove
Holdings, LLC, enforceable against each of the Company and Xxxxxxx’x Cove
Holdings, LLC in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar
laws
affecting creditors’ rights generally from time to time in effect and by
equitable principles of general
applicability.
|
|
11.
|
[Add
other appropriate agreements, if
applicable]
|
|
12.
|
The
Units, including the underlying Common Stock and Warrants, have
been duly
and validly authorized.
|
|
13.
|
The
shares of Common Stock included in the Units have been duly authorized
and, when issued and delivered against payment for the Securities
by the
Underwriters pursuant to the Underwriting Agreement, will be
validly
issued, fully paid and non-assessable; the holders of such shares
of
Common Stock are not and will not be subject to personal liability
by
reason of being such holders; such shares of Common Stock are
not and will
not be subject to any preemptive or other similar contractual
rights
granted by the Company.
|
|
14.
|
The
Warrants included in the Units have been duly authorized and,
when
executed, authenticated, issued and delivered in the manner set
forth in
the Warrant Agreement against payment for the Securities by the
Underwriters pursuant to the Underwriting Agreement, will constitute
valid
and binding obligations of the Company, enforceable against the
Company in
accordance with their terms, except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability; the holders of outstanding shares of
capital
stock of the Company are not entitled to preemptive or other
rights to
subscribe for the Securities.
|
B-2
|
15.
|
The
shares of Common Stock issuable upon exercise of the Warrants
have been
duly authorized and reserved for issuance and when issued and
delivered
against payment therefor pursuant to the Warrants and the Warrant
Agreement, will be validly issued, fully paid and non-assessable;
no
options, warrants or other rights to purchase, agreements or
other
obligations to issue, or rights to convert any obligations into
or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are
outstanding.
|
|
16.
|
The
Founder’s Units have been duly authorized and validly issued. The
Founder’s Shares have been duly authorized and are validly issued, fully
paid and nonassessable. The Founder’s Warrants have been duly authorized,
executed, authenticated, issued, delivered, and constitute valid
and
binding obligations of the Company, enforceable against the Company
in
accordance with their terms, except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or similar laws affecting
creditors’
rights generally from time to time in effect and by equitable
principles
of general applicability. The shares of Common Stock issuable
upon
exercise of the Founder’s Warrants have been duly authorized and reserved
for issuance and, when issued and delivered against payment therefor
pursuant to the Founder’s Warrants and the Warrant Agreement, will be
validly issued, fully paid and
non-assessable.
|
|
17.
|
The
Insider Warrants have been duly authorized, executed, authenticated,
issued and delivered, and constitute valid and binding obligations
of the
Company, enforceable against the Company in accordance with their
terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors’ rights generally from
time to time in effect and by equitable principles of general
applicability. The shares of Common Stock issuable upon exercise
of the
Insider Warrants have been duly authorized and reserved for issuance
and,
when issued and delivered against payment therefor pursuant to
the Insider
Warrants and the Warrant Agreement will be validly issued, fully
paid and
non-assessable.
|
|
18.
|
The
Company has an authorized and outstanding capitalization as set
forth in
the Registration Statement, the Preliminary Prospectus and the
Prospectus;
the Amended and Restated Certificate of Incorporation of the
Company and
the Bylaws of the Company, each in the form filed as an exhibit
to the
Registration Statement, have been heretofore duly authorized
and adopted,
have been filed as required, and are in full force and effect
as of the
date hereof, in each case in accordance with the laws of the
State of
Delaware.
|
|
19.
|
The
capital stock of the Company, including the Units, the Common
Stock and
the Warrants, conforms in all material respects to the description
thereof, if any, contained in the Registration Statement, the
Preliminary
Prospectus and the Prospectus.
|
|
20.
|
The
Registration Statement, the Preliminary Prospectus and the Prospectus
(except as to the financial statements and schedules, and other
financial
data derived therefrom, contained in the Registration Statement,
the
Preliminary Prospectus and the Prospectus, as to which we express
no
opinion) comply as to form in all material respects with the
requirements
of the Act (including, in the case of the Prospectus, Section
10(a) of the
Act).
|
|
21.
|
The
Registration Statement has become effective under the Act and,
to our
knowledge, no stop order proceedings with respect thereto are
pending or
threatened under the Act, and any required filing of the Prospectus
and
any supplement thereto pursuant to Rule 424 under the Act has
been made in
the manner and within the time period required by such Rule
424
and in the manner and within the time period required by Rule
430A under
the Act; and the classes of securities consisting of the Units,
the Common
Stock and the Warrants has become registered under Section 12(b)
of the
Exchange Act.
|
B-3
|
22.
|
No
approval, authorization, consent or order under any federal law,
under the
laws of the State of New York or under the laws of the State
of Delaware
or approval, authorization, consent of or filing with any New
York or
Delaware governmental or regulatory commission, board, body, authority or
agency, or approval of the stockholders of the Company or the
members of
Xxxxxxx’x Cove Holdings, LLC, is required in connection with the issuance
and sale of the Units or with the consummation of the transactions
contemplated by the Underwriting Agreement, the Warrant Agreement,
the
Insider Letters, the Trust Agreement, the Escrow Agreement, the
Services
Agreement, the Registration Rights Agreement or the Private Placement
Agreement [add
other agreements, if applicable]
other than registration of the Securities under the Act, which
has been
effected (except that we express no opinion as to any necessary
qualification under the state securities or blue sky laws of
the various
jurisdictions in which the Securities are being offered by the
Underwriters and we express no opinion with respect to the Conduct
Rules
of the FINRA).
|
|
23.
|
The
execution, delivery and performance of the Underwriting Agreement,
the
Warrant Agreement, the Insider Letters, the Trust Agreement,
the Escrow
Agreement, the Services Agreement, the Registration Rights Agreement
and
the Private Placement Agreement [add
other agreements, if applicable]
by
the Company and Xxxxxxx’x Cove Holdings, LLC, to the extent such entity is
a party to each such agreement or letter, the issuance and sale
of the
Securities and the consummation of the transactions contemplated
by the
Underwriting Agreement, the Warrant Agreement, the Insider Letters,
the
Trust Agreement, the Escrow Agreement, the Services Agreement,
the
Registration Rights Agreement and the Private Placement Agreement
[add
other agreements, if applicable]
do
not and will not result in any breach or violation of or constitute
a
default under (nor constitute any event which, with notice, lapse
of time
or both, would result in any breach or violation of or constitute
a
default under or give the holder of any indebtedness (or a person
acting
on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (or
result in
the creation or imposition of a lien, charge or encumbrance on
any
property or assets of the Company pursuant to) (i) the charter or
bylaws or other organizational documents of the Company or Xxxxxxx’x Cove
Holdings, LLC, or (ii) any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or
any
license, lease, contract or other agreement or instrument (collectively,
“Agreements
and Instruments”)
to which the Company or Xxxxxxx’x Cove Holdings, LLC is a party or by
which either of them or any of their respective properties may
be bound or
affected, or (iii) federal laws, the laws of the State of New York or
the laws of the State of Delaware, or (iv) any decree, judgment or
order applicable to the Company or Xxxxxxx’x Cove Holdings, LLC or any of
their respective properties, which decree, judgment or order
is known by
us.
|
|
24.
|
To
our knowledge, there are no contracts, licenses, agreements,
leases or
documents of a character which are required to be described in
the
Registration Statement, the Preliminary Prospectus or the Prospectus
or to
be filed as an exhibit to the Registration Statement which have
not been
so described or filed as required.
|
|
25.
|
To
our knowledge, (i) the Company is not a party to any legal or
governmental action or proceeding that challenges the validity
or
enforceability, or seeks to enjoin the performance, of the Underwriting
Agreement; and (ii) there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated
to which
the Company, Xxxxxxx’x Cove Holdings, LLC or any of their respective
directors, officers, managers or members is or would be a party
or to
which any of their respective properties is or would be subject
at law or
in equity, before or by any federal, state, local or foreign
governmental
or regulatory commission, board, body, authority or agency which
are
required to be described in the Registration Statement, the Preliminary
Prospectus or the Prospectus but are not so described as
required.
|
B-4
|
26.
|
The
Company is not and, after giving effect to the offering and sale
of the
Securities as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus, will not be an “investment company” as such
term is defined in the Investment Company
Act.
|
|
27.
|
The
statements in the Registration Statement, the Preliminary Prospectus
and
the Prospectus under the headings under
the headings “Proposed Business—Comparison to offerings of blank check
companies—Terms Under a Rule 419 Offering”, “Certain Relationships
and Related Transactions”, “Description of Securities” and “Material U.S.
Federal Income Tax Considerations” insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed
therein, are
accurate and fair summaries of such legal matters, agreements,
documents
or proceedings.
|
|
28.
|
No
person has the right, pursuant to the terms of any contract,
agreement or
other instrument described in or filed as an exhibit to the Registration
Statement or otherwise known to us, to cause the Company to register
under
the Act any shares of Common Stock or shares of any other capital
stock or
other equity interest in the Company or to include any such shares
or
interest in the Registration Statement or the offering contemplated
thereby.
|
|
29.
|
Registration
under the Act of the offer and sale of the Founder’s Securities and the
Insider Warrants to Xxxxxxx’x Cove Holdings, LLC [and other
stockholders]
is not required.
|
|
30.
|
We
have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants
of
the Company and representatives of the Underwriters at which
the contents
of the Registration Statement, the Preliminary Prospectus and
the
Prospectus were discussed and, although we are not passing upon
and do not
assume responsibility for the accuracy, completeness or fairness
of the
statements contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus, on the basis of the foregoing,
nothing has
come to our attention that causes us to believe that (i) the
Registration Statement, at the Effective Time, contained an untrue
statement of a material fact or omitted to state a material fact
required
to be stated therein or necessary to make the statements therein
not
misleading, (ii) the Preliminary Prospectus, as of the Applicable
Time (as defined below), included an untrue statement of a material
fact
or omitted to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading or (iii) the Prospectus, as of its date, or
as of the date hereof, included or includes an untrue statement
of a
material fact or omitted or omits to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood
that we
express no opinion in this paragraph 28 with respect to the financial
statements and schedules, and other financial data derived therefrom,
included in the Registration Statement, the Preliminary Prospectus
or the
Prospectus). As used herein, “Applicable
Time”
means [___] [“A.M.” / “P.M.”], New York City time, on [pricing
date],
2007.
|
Capitalized
terms used herein without definition shall have the respective meanings
ascribed
to them in the Underwriting Agreement.
B-5
EXHIBIT
C
OFFICERS’
CERTIFICATE
Each
of
the undersigned, Xxxxxxx X. Xxxx, President and Chief Executive Officer
of
Xxxxxxx’x Cove Acquisition Corporation, a Delaware corporation (the
“Company”),
and
[Name], [principal financial officer] of the Company, on behalf of the
Company,
does hereby certify pursuant to Section 6(g) of that certain Underwriting
Agreement dated [pricing date] (the “Underwriting
Agreement”)
between the Company and, on behalf of the several Underwriters named therein,
UBS Securities LLC and Xxxxxx Xxxxxx & Co., Inc., that as of
[date]:
|
1.
|
He
has reviewed the Registration Statement, each Preliminary Prospectus
and
the Prospectus.
|
|
2.
|
The
representations and warranties of the Company as set forth in
the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
|
3.
|
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
|
4.
|
The
conditions set forth in paragraph (f) of Section 6 of the Underwriting
Agreement have been met.
|
Capitalized
terms used herein without definition shall have the respective meanings
ascribed
to them in the Underwriting Agreement.
In
Witness Whereof,
the
undersigned have hereunto set their hands on this [date].
|
Name:
|
Xxxxxxx
X. Xxxx
|
|
|
Title:
|
President
and Chief Executive Officer
|
|
Title:
|
[principal
financial officer]
|
C-1
EXHIBIT
D
TARGET
BUSINESS/VENDOR/SERVICE PROVIDER WAIVER LETTER
Letter
for Target Business
Xxxxxxx’x
Cove Acquisition Corporation
000
Xxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Ladies
and Gentlemen:
Reference
is made to the Final Prospectus of Xxxxxxx’x Cove Acquisition Corporation (the
“Company”), dated [_________] (the “Prospectus”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We
have
read the Prospectus and understand that the Company has established a trust
account at XX Xxxxxx Xxxxx Bank NA, maintained by American Stock Transfer
&
Trust Company, acting as Trustee, as described in the Prospectus (the “Trust
Account”), initially in an amount of $[98,500,000] for the benefit of the public
stockholders and that the Company may disburse monies from the Trust Account
only (i) to the public stockholders in the event of the liquidation of the
Company; (ii) to the Company from interest earned on the funds in the Trust
Account (a) to pay any taxes incurred by the Company, and (b) up to an
aggregate of $2,500,000 of interest income for working capital; (iii) to
redeeming stockholders voting against the extended period as described
in the
Prospectus; or (iv) to the Company and the underwriters after the Company
consummates 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 (the “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
|
D-1
Letter
for Vendors or Service Providers
Xxxxxxx’x
Cove Acquisition Corporation
000
Xxxx
Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Ladies
and Gentlemen:
Reference
is made to the Final Prospectus of Xxxxxxx’x Cove Acquisition Corporation (the
“Company”), dated [______] (the “Prospectus”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We
have
read the Prospectus and understand that the Company has established a trust
account at XX Xxxxxx Chase Bank NA, maintained by American Stock Transfer
&
Trust Company, acting as Trustee, as described in the Prospectus (the “Trust
Account”), initially in an amount of $[98,500,000] for the benefit of the public
stockholders and that the Company may disburse monies from the Trust Account
only (i) to the public stockholders in the event of the liquidation of the
Company; (ii) to the Company from interest earned on the funds in the Trust
Account (a) to pay any taxes incurred by the Company, and (b) up to an
aggregate of $2,500,000 of interest income for working capital; (iii) to
redeeming stockholders voting against the extended period as described
in the
Prospectus; or (iv) to the Company and the underwriters after the Company
consummates a business combination.
For
and
in consideration of the Company agreeing to engage 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 (the “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 Vendor or Service Provider
|
|
|
Authorized
Signature of Vendor or Service
Provider
|
D-2
