GSC Acquisition Company 15,000,000 Units1 Common Stock Warrants [FORM OF UNDERWRITING AGREEMENT]
Exhibit
1.1
GSC
Acquisition
Company
15,000,000
Units1
Common
Stock
Warrants
[FORM
OF
UNDERWRITING AGREEMENT]
,
2007
Citigroup
Global
Markets Inc.
As
Representative of the several Underwriters,
c/o
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Ladies
and
Gentlemen:
GSC
Acquisition
Company, a corporation organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the “Representative”) are acting as sole
representative, 15,500,000 units (the “Units”) of the Company (said units to be
issued and sold by the Company being hereinafter called the “Underwritten
Securities”). The Company also proposes to grant to the Underwriters an option
to purchase up to 2,250,000 additional units to cover over-allotments, if any
(the “Option Securities”; the Option Securities, together with the Underwritten
Securities, being hereinafter called the “Securities”). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representative as used herein shall mean you, as Underwriter, and the term
Underwriters shall mean either the singular or plural as the context requires.
Certain capitalized terms used herein and not otherwise defined are defined
in
Section 20 hereof.
Each
Unit consists
of one share of the Company’s common stock, par value $.001 per share (the
“Common Stock”), and one warrant to purchase one share of Common Stock (the
“Warrant(s)”). The shares of Common Stock and Warrants included in the Units
will not be separately transferable until five business days following the
earlier to occur of the expiration of the Underwriters’ over-allotment option
(as described below) or the exercise in full of such option, subject to (a)
the
preparation of an audited balance sheet of the Company reflecting the 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 Form 8-K
or
similar form and (b) the Company issuing a press release announcing when such
separate trading will begin. Each Warrant entitles its holder, upon exercise,
to
purchase one share of Common Stock for $7.50 during the period commencing on
the
later of the completion of an initial “Business Combination” or 13 months from
the Closing Date (as defined herein) and terminating on the four-year
anniversary of the Effective Date or earlier upon redemption or liquidation
of
the Trust Account (as defined herein). As used herein, the term “Business
Combination”
1 Plus
an option
to purchase from the Company, up to 2,250,000 additional Units to cover
over-allotments.
shall
mean any
acquisition, through a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or other similar business combination with one or
more
businesses or assets.
The
Company has
entered into an Investment Management Trust Agreement, dated as of [·],
2007, with
American Stock Transfer & Trust Company (“AST&T”), as trustee, in
substantially the form filed as an exhibit to the Registration Statement, (the
“Trust Agreement”), pursuant to which certain proceeds of the offering will be
deposited and held in a trust account (the “Trust Account”) for the benefit of
the Company, the Underwriters and holders of Underwritten Securities and the
Option Securities, if and when issued.
The
Company has
entered into a Warrant Agreement, dated as of [·],
2007, with
respect to the Warrants and the Initial Founder’s Warrants (as defined herein)
with AST&T, as warrant agent, in substantially the form filed as an exhibit
to the Registration Statement (the “Warrant Agreement”), pursuant to which
AST&T will act as warrant agent in connection with the issuance,
registration, transfer, exchange, redemption, and exercise of the Warrants
and
the Initial Founder’s Warrants.
The
Company has
entered into a Securities Purchase Agreement, dated as of November 7, 2006
(the
“Securities Purchase Agreement”), with GSC Secondary Interest Fund LLC, a
Delaware limited liability company (the “Founder”), pursuant to which it has
purchased an aggregate of 5,468,750 shares of Common Stock (the “Initial
Founder’s Shares”) for a purchase price of $25,000 and has agreed to purchase an
aggregate of 4,000,000 warrants for a purchase price of $4,000,000 (the “Initial
Founder’s Warrants”; and with the Initial Founder’s Shares, collectively the
“Initial Founder’s Securities”). A total of 56,250 (after giving effect to the
recapitalization) of the Initial Founder’s Shares were subsequently sold by
the Founder to three of our directors, Messrs ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇,
in
private transactions. On May 29, 2007, the Company effected a recapitalization
in which it acquired (for retirement) 1,692,968 of its outstanding shares of
Common Stock from the Founder and a total of 25,782 of its outstanding shares
of
Common Stock from Messrs ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, in each case for nominal
consideration of $1.00. The Initial Founder’s Shares and the Initial Founder’s
Warrants are identical to the Common Stock and Warrants, respectively, included
in the Units except (i) the Founder has agreed that it will not sell or
otherwise transfer the Initial Founder’s Shares for three years from the Closing
Date other than to any officer, director or employee of the Company or any
other
person associated with GSC Group, provided such person agrees to be subject
to
any transfer restrictions applicable to the Initial Founder’s Securities
(“Permitted Transferees”) and will not transfer the Initial Founder’s Warrants
until after the completion of an initial Business Combination, as more fully
set
forth in the Securities Purchase Agreement, and (ii) the Founder and each
transferee has agreed that in connection with the stockholder vote required
to
approve the initial Business Combination such holder of Initial Founder’s Shares
will vote such shares in accordance with the majority of the shares of Common
Stock voted by the Public Stockholders (as defined below) and to waive its
right
to participate in any liquidation distribution with respect to the Initial
Founder’s Shares if the Company fails to consummate an initial Business
Combination and (iii) the Initial Founder’s Warrants are non-redeemable so long
as they are held by the Founder or Permitted Transferees.
The
Company has
entered into a letter agreement, dated as of [·],
2007 (the
“Services Agreement”), with GSCP (NJ) Holdings L.P., a Delaware limited
partnership, pursuant to which the Company will pay, subject to the terms of
the
Services Agreement, an aggregate monthly fee of $7,500 for general and
administrative services, including office space, utilities and secretarial
support from the date hereof until the earlier of (i) the consummation of a
Business Combination or (ii) the liquidation of the Company.
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The
Company has
entered into a Registration Rights Agreement, dated as of [•], 2007, with the
Founder and each other holder of Initial Founder’s Shares as of the date hereof,
in substantially the form filed as an exhibit to the Registration Statement
(the
“Registration Rights Agreement”), pursuant to which the Company has granted
certain registration rights in respect of the Initial Founder’s Shares, Initial
Founder’s Warrants and shares of Common Stock issuable upon exercise of the
Initial Founder’s Warrants, as applicable.
The
Company has
caused to be duly executed and delivered letters by the Founder and each of
the
Company’s executive officers and directors, each in substantially the form filed
as an exhibit to the Registration Statement (the “Insider
Letters”).
The
Company has
caused to be duly executed and delivered a Right of First Review Agreement,
dated as of [•], 2007, with GSC Group, Inc. (“GSCG”), a Delaware corporation, in
substantially the form filed as an exhibit to the Registration Statement (the
“Right of First Review Agreement”).
1. Representations
and Warranties.
The Company
represents and warrants to, and agrees with, each Underwriter as set forth
below
in this Section 1.
(a) The
Company has
prepared and filed with the Commission a registration statement (file number
333-138832) on Form S-1, including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, has become effective. The Company has filed one or more
amendments thereto, including a related preliminary prospectus, each of which
has previously been furnished to you. The Company will file with the Commission
a final prospectus in accordance with Rule 424(b). As filed, such final
prospectus shall contain all information required by the Act and, except to
the
extent the Representative shall agree in writing to a modification, shall be
in
all substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained
in
the latest Preliminary Prospectus) as the Company has advised you, prior to
the
Execution Time, will be included or made therein.
(b) On
the Effective
Date, the Registration Statement did, and when the Prospectus is first filed
in
accordance with Rule 424(b) and on the Closing Date (as defined herein) and
on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of the
Act; on the Effective Date and at the Execution Time, the Registration Statement
did not and will not contain any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary in order
to
make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement date,
the Prospectus (together with any supplement thereto) will not include any
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 representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion in the Registration Statement or
the
Prospectus (or any supplement thereto), it being understood and agreed that
the
only such information furnished by any Underwriter consists of the information
described as such in Section 8 hereof.
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(c) At
the Execution
Time, the Statutory Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided,
however,
that the Company
makes no representations or warranties as to the information contained in or
omitted from the Statutory Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion in the
Statutory Prospectus, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) The
Company has
filed with the Commission a Form 8-A (File Number [·])
providing for
the registration under the Exchange Act of the Units, the Common Stock and
the
Warrants, which registration is effective on the date hereof. The Units, the
Warrants, and the Common Stock have been duly listed, and admitted and
authorized for trading subject only to official notice of issuance, on the
American Stock Exchange, and the Company knows of no reason or set of facts
which is likely to adversely affect such approval.
(e) The
Commission has
not issued any order or, to the Company’s knowledge, threatened to issue any
order preventing or suspending the effectiveness of the Registration Statement
or the use of any Preliminary Prospectus, the Prospectus or any part thereof,
and has not instituted or, to the Company’s knowledge, threatened to institute
any proceedings with respect to such an order.
(f) (i)
At the time of
filing the Registration Statement and (ii) as of the Execution Time (with such
date being used as the determination date for purposes of this clause (ii)),
the
Company was and is an Ineligible Issuer (as defined in Rule 405).
(g) The
Company has not
prepared or used a Free Writing Prospectus.
(h) The
Company has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation 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 Statutory Prospectus
and
the Prospectus, 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, except where the failure to be so qualified and in good standing
would not have a material adverse effect on the financial condition, prospects,
earnings, business or properties of the Company.
(i) There
are no
subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X.
(j) There
is no
franchise, contract or other document required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as required (and the
Statutory Prospectus contains in all material respects the same description
of
the foregoing matters contained in the Prospectus); and the statements in the
Statutory Prospectus and the Prospectus under the headings “Principal
Stockholders,” “Certain Transactions,” “Description of Securities” and “Material
U.S. Federal Income and Estate Tax Consequences” 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.
(k) The
Company’s
authorized equity capitalization is as set forth in the Statutory Prospectus
and
the Prospectus.
4
(l) The
Initial
Founder’s Securities have been duly authorized. The Initial Founder’s Shares
have been validly issued and are fully paid and nonassessable; the Initial
Founder’s Warrants have been validly issued. The offers and sales of the Initial
Founder’s Securities were at all relevant times, based in part on the
representations and warranties of the purchasers of such securities, exempt
from
registration under the Act. The holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other rights to subscribe
for
the Securities; and, except as set forth in the Statutory Prospectus and the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
(m) The
Securities have
been duly authorized and when executed by the Company and countersigned and
issued and delivered against payment by the Underwriters pursuant to this
Agreement, will be validly issued.
(n) 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
this Agreement, will be fully paid and non-assessable.
(o) The
Warrants
included in the Units, 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, fraudulent conveyance, moratorium, reorganization or similar laws
affecting creditors’ rights generally and by equitable principles of general
applicability (regardless of whether enforceability is considered in a
proceeding in equity or law).
(p) The
shares of
Common Stock issuable upon exercise of the Warrants included in the Units have
been duly authorized and, when issued and delivered against payment therefor
pursuant to the Warrant Agreement, will be validly issued, fully paid and
non-assessable. The holders of such Common Stock are not and will not be subject
to personal liability by reason of being such holders; such Common Stock is
not
and will not be subject to any preemptive or other similar contractual rights
granted by the Company; and all corporate action required to be taken for the
authorization, issuance and sale of such Common Stock (other than such
execution, countersignature and delivery at the time of issuance) has been
duly
and validly taken.
(q) The
certificates
for the Securities are in due and proper form.
(r) Except
as set forth
in the Statutory Prospectus and the Prospectus, no holders of any securities
of
the Company, or any rights exercisable for or convertible or exchangeable into
securities of the Company, have the right to require the Company to register
any
such securities under the Act or to include any such securities in a
registration statement to be filed by the Company.
(s) Except
as set forth
in the Statutory Prospectus and the Prospectus, 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 date of incorporation through and including the date
hereof.
(t) 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.
5
(u) This
Agreement has
been duly authorized, executed and delivered by the Company.
(v) 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, fraudulent conveyance, moratorium, reorganization or
similar laws affecting creditors’ rights generally and by equitable principles
of general applicability (regardless of whether enforceability is considered
in
a proceeding in equity or law).
(w) 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, fraudulent conveyance, moratorium, reorganization or
similar laws affecting creditors’ rights generally and by equitable principles
of general applicability (regardless of whether enforceability is considered
in
a proceeding in equity or law).
(x) The
Securities
Purchase Agreement has been duly authorized, executed and delivered by the
Company and the Founder, and is a valid and binding agreement of the Company
and
the Founder, enforceable against the Company and the Founder, respectively,
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization or
similar laws affecting creditors’ rights generally and by equitable principles
of general applicability (regardless of whether enforceability is considered
in
a proceeding in equity or law).
(y) The
Services
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and binding agreement of the Company, enforceable against the Company
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization or
similar laws affecting creditors’ rights generally and by equitable principles
of general applicability (regardless of whether enforceability is considered
in
a proceeding in equity or law).
(z) The
Registration
Rights Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the enforceability thereof may
be
limited by bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws affecting creditors’ rights generally and by
equitable principles of general applicability (regardless of whether
enforceability is considered in a proceeding in equity or law).
(aa) Each
of the Insider
Letters executed by the Company, the Founder, and each executive officer and
director of the Company has been duly authorized, executed and delivered by
the
Company, the Founder and, to the Company’s knowledge, each of the such executive
officers and directors, respectively, and is a valid and binding agreement
of
the Company, the Founder and, to the Company’s knowledge, each of such executive
officers and directors, respectively, enforceable against the Company, the
Founder and, to the Company’s knowledge, each of such executive officers and
directors, respectively, in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization or similar laws affecting creditors’
rights generally and by equitable principles of general applicability
(regardless of whether enforceability is considered in a proceeding in equity
or
law).
6
(bb) The
Right of First
Review Agreement has been duly authorized, executed and delivered by each of
the
Company and GSCG, and is a valid and binding agreement of the Company and GSCG,
enforceable against the Company and GSCG in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization or similar laws affecting creditors’
rights generally and by equitable principles of general applicability
(regardless of whether enforceability is considered in a proceeding in equity
or
law).
(cc) Neither
the
execution and delivery of the Right of First Review Agreement nor the
fulfillment of the terms thereof will conflict with or result in a breach or
violation of (i) the charter or by-laws of GSCG, (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 GSCG is a party or bound or to which its property is subject, or (iii)
any
statute, law, rule, regulation, judgment, order or decree applicable to GSCG
of
any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over GSCG or any of its
properties.
(dd) The
Company is not
and, after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Statutory Prospectus
and
the Prospectus, will not be an “investment company” as defined in the Investment
Company Act of 1940, as amended.
(ee) No
consent,
approval, authorization, filing with or order of any court or governmental
agency or body is required for the issuance and sale of the Securities or the
consummation by the Company of the transactions contemplated herein or in the
Trust Agreement, the Warrant Agreement, the Securities Purchase Agreement,
the
Services Agreement, the Registration Rights Agreement, or the Insider Letters,
except such as have been obtained under the Act 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 Statutory Prospectus and the Prospectus.
(ff) The
Company is not
in violation or default of (i) any provision of its charter or bylaws,
(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 (x) statute, law, rule, regulation, or
(y) judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over the Company; except in the case of clauses (ii) and (iii) above for any
such conflict, breach or violations that would not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
financial condition, prospects, earnings, business or properties of the
Company.
(gg) Neither
the issue
and sale of the Securities nor the consummation by the Company of any other
of
the transactions herein contemplated nor the fulfillment of the terms hereof
or
of the Trust Agreement, the Warrant Agreement, the Securities Purchase
Agreement, the Services Agreement, the Registration Rights Agreement, the Right
of First Review 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 pursuant to, (i) the charter or
by-laws of the Company, (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 is a party
or
bound or to which its property is subject, or (iii) any statute, law, rule,
or regulation, judgment, order or decree applicable to the Company of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
7
properties;
except
in the case of clauses (ii) and (iii) above for any such conflict, breach or
violations that would not, individually or in the aggregate, be reasonably
expected to have a material adverse effect on the financial condition,
prospects, earnings, business or properties of the Company.
(hh) The
financial
statements and schedules, if any, of the Company included in the Statutory
Prospectus, 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). 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. The data relating to the operations and
organization of GSC Group that are included in the Statutory Prospectus and
the
Prospectus under the captions “Prospectus Summary” and “Proposed Business” are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the sources from
which they are derived.
(ii) No
action, suit or
proceeding by or before any court or governmental agency, authority or body
or
any arbitrator involving the Company or its property is pending or, to the
knowledge of the Company, threatened that (i) could reasonably be expected
to have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby by the Company
or
(ii) could reasonably be expected to have a material adverse effect on the
financial condition, prospects, earnings, business or properties of the Company,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Statutory Prospectus and the
Prospectus (exclusive of any supplement thereto).
(jj) The
Company owns or
leases all such properties as are necessary to the conduct of its operations
as
presently conducted.
(kk) Ernst
&
Young
LLP (“Ernst & Young”), who have certified certain financial statements of
the Company and delivered their report with respect to the audited financial
statements and schedules, if any, included in the Statutory Prospectus and
the
Prospectus, is a registered public accounting firm that is independent with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(ll) 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.
(mm) The
Company has not
been required to date to file any foreign, federal, state or local tax returns
and no tax or other assessment, fine or penalty has been or is due and payable
by the Company.
(nn) There
is and has
been no failure on the part of the Company and any of the Company’s directors or
officers, in their capacities as such, to comply with any applicable provision
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated
in
connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 relating
to loans.
8
(oo) There
is and has
been no failure on the part of the Company or, to the knowledge of the Company,
any of the Company’s officers or directors, in their capacities as such, to
comply with (as and when applicable), and immediately following the Effective
Date the Company will be in compliance with, (a) Part 8 of the American Stock
Exchange’s “AMEX Company Guide,” as amended and (b) all other provisions of the
American Stock Exchange corporate governance requirements set forth in the
AMEX
Company Guide, as amended.
(pp) None
of the
Company, the Founder or, to the knowledge of the Company, any director or
officer 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 Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), 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 has
conducted its businesses in compliance with the FCPA and has instituted and
maintains policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(qq) The
operations of
the Company are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements and the money
laundering statutes and 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.
(rr) None
of the
Company, the Founder or, to the knowledge of the Company, any director or
officer of the Company is currently subject to any sanctions administered by
the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
the Company will not directly or indirectly use the proceeds of the offering,
or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any sanctions administered
by
OFAC.
(ss) None
of the
Company, the Founder or, to the knowledge of the Company, any officer or
director of the Company 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.
(tt) The
Company has not
become aware of any information which would cause the information disclosed
in
the questionnaires completed by the parties to the Insider Letters to become
inaccurate or incorrect.
(uu) Except
as disclosed
in the Statutory Prospectus and the Prospectus, prior to the date hereof, none
of the Company, the Founder, the Company’s officers and directors or any
affiliate thereof had, and as of the Closing Date, the Company, and such
officers and directors, the Founder and their affiliates will not have had:
(a) any specific Business Combination under consideration or contemplation
or (b) any interactions or discussions with any target business relating to
a possible Business Combination.
9
(vv) Except
as disclosed
in the Statutory Prospectus and the Prospectus, there are no claims, payments,
arrangements, contracts, agreements or understandings relating to the payment
of
a brokerage commission or finder’s, consulting, origination or similar fee by
the Company or the Founder with respect to the sale of the Securities hereunder
or any other arrangement, agreement or understanding of the Company or the
Founder that may affect the Underwriters’ compensation, as determined by the
National Association of Securities Dealers, Inc. (the “NASD”).
(ww) The
Company has not
taken, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any security
of
the Company to facilitate the sale or resale of the Securities.
(xx) To
the Company’s
knowledge, none of its officers or directors is subject to any non-competition
agreement or non-solicitation agreement with any employer or prior employer
which could materially affect his ability to be and act in the capacity of
an
officer or director of the Company.
(yy) The
Company does
not own an interest in any corporation, partnership, limited liability company,
joint venture, trust or other entity.
(zz) No
relationship,
direct or indirect, exists between or among any of the Company, on the one
hand,
and any director, officer, shareholder, special advisor, customer or supplier
of
the Company, on the other hand, which is required by the Act or the Exchange
Act
to be described in the Statutory Prospectus 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, Statutory Prospectus 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.
(aaa) The
Company has not
offered, or caused the Underwriters to offer, the Underwritten Securities to
any
person or entity with the intention of unlawfully influencing a journalist
or
publication to write or publish favorable information about the Company or
any
of its affiliates.
(bbb) Upon
delivery and
payment for the Units on the Closing Date, the Company will not be subject
to
Rule 419 under the Act and none of the Company’s outstanding securities will be
deemed to be a “▇▇▇▇▇ stock” as defined in Rule 3a51-1 under the Exchange
Act.
Any
certificate
signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
2. Purchase
and
Sale.
(a)
Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company,
at
a purchase price of $9.60 per Unit, the amount of the Underwritten Securities
set forth opposite such Underwriter’s name in Schedule I
hereto.
(b) Subject
to the
terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 2,250,000 Option
Securities at the same purchase price per share as the
10
Underwriters
shall
pay for the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters.
Said option may be exercised in whole or in part at any time on or before the
30th day after the date of the Prospectus upon written notice by the
Representative to the Company setting forth the number of Option Securities
as
to which the several Underwriters are exercising the option and the settlement
date. The number of Option Securities to be purchased by each Underwriter shall
be the same percentage of the total number of shares of the Option Securities
to
be purchased by the several Underwriters as such Underwriter is purchasing
of
the Underwritten Securities, subject to such adjustments as the Representative
in its absolute discretion shall make to eliminate any fractional
shares.
(c) In
addition to the
discount from the public offering price represented by the purchase price set
forth in Section 2(a) of this Agreement, the Company hereby agrees to pay to
the
Underwriters a deferred discount of $0.30 per Unit (with respect to the
Underwritten Securities and any Option Securities) purchased hereunder (the
“Deferred Discount”). The Deferred Discount will be payable from amounts on
deposit in the Trust Account if and when the Company consummates a Business
Combination. The Underwriters hereby agree that if no 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 holders of the Common
Stock sold pursuant to this Agreement (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 to the Public Stockholders on a pro rata basis.
3. Delivery
and
Payment.
Delivery of and
payment for the Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before
the third Business Day prior to the Closing Date) shall be made at
10:00 AM, New York City time, on [·],
2007, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representative shall designate, which date and time may be postponed
by agreement between the Representative and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the “Closing Date”). Delivery of the Securities
shall be made to the Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof by wire transfer payable in
same-day funds to an account specified by the Company and to the Trust Account
as described below in this Section 3. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company (“DTC”) unless the Representative shall otherwise
instruct.
(a) Payment
for the
Underwritten Securities shall be made as follows: $138,475,000 of the proceeds
received by the Company for the Underwritten Securities together with $4,500,000
of Deferred Discount shall be deposited in the Trust Account pursuant to the
terms of the Trust Agreement and $1,025,000 of the proceeds received by the
Company for the Underwritten Securities shall be paid to the order of the
Company upon delivery to the Representative of certificates (in form and
substance satisfactory to the Representative) representing the Underwritten
Securities (or through the facilities of DTC) for the account of the
Underwriters. The Underwritten Securities shall be registered in such name
or
names and in such authorized denominations as the Representative may request
in
writing at least two Business Days prior to the Closing Date. The Company will
permit the Representative to examine and package the Underwritten Securities
for
delivery, at least one Business Day prior to the Closing Date. The Company
shall
not be obligated to sell or deliver the Underwritten Securities except upon
tender of payment by the Representative for all the Underwritten Securities.
11
(b) Payment
for the
Option Securities shall be made as follows: $9.60 per Option Security shall
be
deposited in the Trust Account pursuant to the terms of the Trust Agreement
upon
delivery to the Representative of certificates (in form and substance
satisfactory to the Representative) representing the Option Securities (or
through the facilities of DTC) for the account of the Underwriters. The
certificates representing the Option Securities to be delivered will be in
such
denominations and registered in such names as the Representative requests not
less than two Business Days prior to the Closing Date and will be made available
to the Representative for inspection, checking and packaging at the aforesaid
office of the Company’s transfer agent or correspondent not less than one
Business Day prior to such Closing Date.
If
the option provided for in Section 2(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Company will deliver the Option
Securities (at the expense of the Company) to the Representative, at 388
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ date specified by the
Representative (which shall be within three Business Days after exercise of
said
option) for the respective accounts of the several Underwriters, against payment
by the several Underwriters through the Representative of the purchase price
thereof to the Trust Account as described above in Section 3(b). If settlement
for the Option Securities occurs after the Closing Date, the Company will
deliver to the Representative on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered
on
the Closing Date pursuant to Section 6 hereof.
4. Offering
by
Underwriters.
It is understood
that the several Underwriters propose to offer the Securities for sale to the
public as set forth in the Prospectus (the “Offering”).
5. Agreements.
The Company
agrees with the several Underwriters that:
(a) Prior
to the
termination of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus or
any
Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company will cause
the Prospectus, properly completed, and any supplement thereto to be filed
in a
form approved by the Representative with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed. The
Company will promptly advise the Representative (i) when the Prospectus, and
any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (ii) when, prior to termination
of the offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any
Rule 462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
or
of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of
any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the occurrence of any such suspension
or
objection to the use of the Registration Statement and, upon such issuance,
occurrence or notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection, including,
if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or
new
registration statement declared effective as soon as practicable.
12
(b) If,
at any time
prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs
as a result of which the Statutory Prospectus 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
Representative so that any use of the Statutory Prospectus may cease until
it is
amended or supplemented; (ii) amend or supplement the Statutory Prospectus
to
correct such statement or omission; and (iii) supply any amendment or supplement
to you in such quantities as you may reasonably request.
(c) If,
at any time
when a prospectus relating to the Securities is required to be delivered under
the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Prospectus
as
then supplemented 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,
or
if it shall be necessary to amend the Registration Statement or supplement
the
Prospectus to comply with the Act or the rules thereunder, the Company promptly
will (i) notify the Representative of any such event; (ii) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(d) As
soon as
practicable, the Company will make generally available to its security holders
and to the Representative an earnings statement or statements of the Company
and
its subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158.
(e) The
Company will
furnish to the Representative and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits thereto) and
to
each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each Preliminary
Prospectus, the Prospectus and any supplement thereto as the Representative
may
reasonably request.
(f) The
Company will
arrange, if necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representative may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be obligated
to
qualify to do business in any jurisdiction where it is not now so qualified
or
to take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(g) The
Company will
not, without the prior written consent of the Representative, offer, sell,
contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to, result
in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in
the
filing) of a registration statement with 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 Exchange Act, any
Units (other than the Underwritten Securities in accordance with the terms
of
this Agreement), shares of Common Stock or Warrants or any securities
convertible into, or exercisable, or exchangeable for, shares of Common Stock;
or publicly announce an intention to effect any such transaction, during the
period commencing on the
13
date
hereof and
ending 180 days after the date of this Agreement (the “Restricted Period”);
provided,
however,
that if
(i) during the
last 17 days of the Restricted Period the Company issues an earnings release
or
material news or a material event relating to the Company occurs, or (ii) prior
to the expiration of the Restricted Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day
of
the Restricted Period, then the foregoing restrictions shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event;
provided further,
however,
that the Company
may (1) issue and sell the Initial Founder’s Warrants, (2) issue and sell the
Option Securities on exercise of the option provided for in Section 2(b) hereof
and (3) register with the Commission pursuant to the Registration Rights
Agreement, at any time after the date the Company consummates its initial
Business Combination, the resale of the Initial Founder’s Warrants and any
shares issuable upon exercise of the Initial Founder’s Warrants. The
Company will
provide the Representative and any co-managers and each individual subject
to
the Restricted Period pursuant to the lockup letters described in this Section
5(g) with prior notice of any such announcement that gives rise to an extension
of the Restricted Period.
(h) The
Company will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under
the
Exchange Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(i) The
Company agrees
to pay the costs and expenses relating to the following matters: (i) the
preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
each Preliminary Prospectus, the Prospectus and each amendment or supplement
to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus and all amendments or supplements to any of them, as may, in each
case, be reasonably requested for use in connection with the offering and sale
of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp
or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of the
Securities on the American Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue
sky laws of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such registration
and
qualification); (vii) any filings required to be made with NASD (including
filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses
incurred by or on behalf of Company representatives, but not the Representative
or its representatives, in connection with “road show” presentations;
(ix) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company;
and
(x) all other costs and expenses incident to the performance by the Company
of its obligations hereunder. Notwithstanding the foregoing, the Company and
the
Representative agree that 50% of the cost of non-commercial air travel in
connection with “road show” presentations shall be paid by the Underwriters, and
that the cost of such travel shall be determined in good faith by the Company
and the Representative based on comparable charter flight rates.
(j) For
a period of at
least five (5) years from the Effective Date, or until such earlier
time upon which the Company is required to be liquidated, the Company will
use
its best efforts to maintain the registration of the Units, Common Stock and
Warrants under the provisions of the Exchange Act.
14
(k) The
Company shall,
on the date hereof, retain its registered independent public accountants to
audit the financial statements of the Company as of the Closing Date (the
“Audited Financial Statements”) reflecting the receipt by the Company of the
proceeds of the sale of the Underwritten Securities. 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 option provided
for in Section 2(b) hereof, 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 Option Securities and its receipt of the proceeds therefrom.
(l) For
a period of at
least five (5) years from the Effective Date or until such earlier
time that the Company is required to be liquidated, the Company, at its expense,
shall cause its regularly engaged registered independent certified public
accountants to review (but not audit) the Company’s financial statements for
each of the first three fiscal quarters prior to the announcement of quarterly
financial information, the filing of the Company’s Form 10-Q quarterly
report and the mailing, if any, of quarterly financial information to
stockholders.
(m) In
no event will
the fees payable under the Services Agreement be more than $7,500 per month
in
the aggregate.
(n) The
Company will
apply the net proceeds received by it from the sale of the Securities in a
manner consistent with the applications described under the caption “Use of
Proceeds” in the Statutory Prospectus and the Prospectus.
(o) In
the event any
person or entity (regardless of any NASD affiliation or association) is engaged
to assist the Company in its search for a merger candidate or to provide any
other merger and acquisition services, the Company will provide the following
to
the NASD and the Representative prior to the consummation of the Business
Combination: (i) complete details of all services and copies of agreements
governing such services; and (ii) justification as to why the person or
entity providing the merger and acquisition services should not be considered
an
“underwriter and related person” with respect to the Company’s initial public
offering, as such term is defined in Rule 2710 of the NASD’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 Business
Combination.
(p) The
Company shall
cause the proceeds of the offering 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 maturity of 180 days
or less, as set forth in the Trust Agreement and disclosed in the Statutory
Prospectus 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.
(q) The
Company will
reserve and keep available that maximum number of its authorized but unissued
securities which are issuable upon exercise of any of the Initial Founder’s
Warrants and the Warrants outstanding from time to time.
(r) The
Company agrees
that it will use commercially reasonable efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including, but not limited to, using commercially
reasonable efforts to prevent any
15
of
the Company’s
outstanding securities from being deemed to be a “▇▇▇▇▇ stock” as defined in
Rule 3a-51-1 under the Exchange Act during such period.
(s) The
Company will
maintain “disclosure controls and procedures” (as defined under Rule 13A-15(e)
under the Exchange Act).
(t) The
Company will
use its best efforts to effect and maintain the listing of the Units, Common
Stock and Warrants on the American Stock Exchange.
(u) As
soon as legally
required to do so, the Company and its directors and officers, in their
capacities as such, shall take all actions necessary to comply with any
provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(v) The
Company and any
of the Company’s directors or officers, in their capacities as such, shall take
all actions necessary to comply with any provision of the (i) Part 8 of the
AMEX
Company Guide and (b) all other provisions of the American Stock Exchange
corporate governance requirements set forth in the AMEX Company
Guide.
(w) The
Company shall
not 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.
(x) The
Company hereby
agrees that prior to commencing its due diligence investigation of any operating
business which the Company seeks to acquire for its initial Business Combination
(“Target Business”) or obtaining the services of any vendor, it will use
commercially reasonable efforts to cause the Target Business or vendor to
execute a waiver letter in the form attached hereto as Exhibit A.
(y) Within
five Business Days following the consummation by the Company of a Business
Combination, the Company shall cause an announcement (“Business Combination
Announcement”) to be placed, at its cost, in The Wall Street Journal announcing
the consummation of the Business Combination and indicating that the
Underwriters were the underwriters in the offering. The Company shall supply
the
Representative with a draft of the Business Combination Announcement and provide
the Representative with a reasonable advance opportunity to comment thereon.
The
Company will not place the Business Combination Announcement without the final
approval of the Representative, which approval will not be unreasonably
withheld.
(z) Upon
the
consummation of the initial Business Combination, the Company will pay to the
Representative, 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
Representative and will, instead, be included in the liquidation distribution
of
the proceeds held in the Trust Account made to the Public Stockholders. In
connection with any such liquidation distribution, the Underwriters forfeit
any
rights or claims to the Deferred Discount, including any accrued interest
thereon.
6. Conditions
to
the Obligations of the Underwriters.
The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall
16
be
subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The
Prospectus, and
any supplement thereto, have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement or any notice objecting to its use shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The
Company shall
have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to
have furnished to the Representative their opinion, dated the Closing Date
and
addressed to the Representative, in the form of Exhibit B hereto.
(c) The
Representative
shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed
to
the Representative, with respect to the issuance and sale of the Securities,
the
Registration Statement, the Statutory Prospectus, the Prospectus (together
with
any supplement thereto) and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(d) The
Company shall
have furnished to the Representative a certificate of the Company, signed by
the
Chief Executive Officer and the principal financial or accounting officer of
the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Statutory
Prospectus, the Prospectus and any amendment or supplement thereto, and this
Agreement, and that:
(i) the
representations
and warranties of the Company in this Agreement are true and correct on and
as
of the Closing Date with the same effect as if made on the Closing Date and
the
Company has complied with all the agreements and satisfied all the conditions
on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no
stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of
the most recent financial statements included in the Statutory Prospectus and
the Prospectus (exclusive of any supplement thereto), there has been no material
adverse effect on the financial condition, prospects, earnings, business or
properties of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Statutory Prospectus and the Prospectus (exclusive of any supplement
thereto).
(e) The
Company shall
have requested and caused Ernst & Young to have furnished to the
Representative, at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representative, confirming that they are
registered independent accountants within the meaning of the Act and the
Exchange Act and the applicable rules and regulations adopted by the Commission
thereunder and that they have not, during the periods covered by the financial
statements included in the Registration
17
Statement,
Statutory Prospectus and Prospectus, provided to the Company any non-audit
services, as such term is used in Section 10(A)(g) of the Exchange Act, and
stating in effect that:
(i) in
their opinion
the audited financial statements and financial statement schedules included
in
the Registration Statement, the Statutory Prospectus and the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
(ii) on
the basis of a
reading of the latest unaudited financial statements made available by the
Company, if any; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the meetings,
if
any, of the stockholders, directors and audit, governance and nominating
committees of the Company; and inquiries of certain officials of the Company
who
have responsibility for financial and accounting matters of the Company and
its
subsidiaries as to transactions and events subsequent to [·],
2007, nothing
came to their attention which caused them to believe that, with respect to
the
period subsequent to [·],
2007, there were
any changes, at a specified date not more than five days prior to the date
of
the letter, in the long-term debt of the Company or capital stock of the Company
or decreases in the stockholders’ equity of the Company as compared with the
amounts shown on the [·],
2007 balance
sheet included in the Registration Statement, the Statutory Prospectus and
the
Prospectus, or for the period from [·],
2007 to such
specified date there were any increases, as compared with [·], 2007
in net
loss of the Company, except as disclosed in the Registration Statement as
occurring or may occur, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representative;
(iii) they
have performed
certain other specified procedures as a result of which they determined that
certain information of an accounting, financial or statistical nature (which
is
limited to accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the Registration
Statement, the Statutory Prospectus and the Prospectus, including the
information set forth under the captions “Dilution” and “Capitalization” in the
Statutory Prospectus and the Prospectus, agrees with supporting documentation
of
the Company, excluding any questions of legal interpretation.
References
to the
Prospectus in this paragraph (e) include any supplement thereto at the date
of the letter.
(f) Subsequent
to the
Execution Time or, if earlier, the dates as of which information is given in
the
Registration Statement (exclusive of any amendment thereof), the Statutory
Prospectus and the Prospectus (exclusive of any supplement thereto), there
shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting
the
condition (financial or otherwise), earnings, business or properties of the
Company, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Statutory Prospectus
and
the Prospectus (exclusive of any supplement thereto) the effect of which, in
any
case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration
18
Statement
(exclusive of any amendment thereof), the Statutory Prospectus and the
Prospectus (exclusive of any supplement thereto).
(g) Prior
to the
Closing Date, the Company shall have furnished to the Representative such
further information, certificates and documents as the Representative may
reasonably request.
(h) The
Securities
shall be duly listed, subject to notice of issuance, on the American Stock
Exchange, satisfactory evidence of which shall have been provided to the
Representative.
(i) On
the Effective
Date, the Company shall have delivered to the Representative executed copies
of
the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreement,
the Services Agreement, and each of the Insider Letters.
(j) At
the Execution
Time, the Company shall have furnished to the Representative a letter
substantially in the form of Exhibit C hereto from each officer and director
of
the Company and the Founder addressed to the Representative.
(k) The
entire
$4,000,000 of proceeds from the sale of the Initial Founder’s Warrants shall
have been deposited in the Trust Account in accordance with the terms of the
Securities Purchase Agreement.
If
any of the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The
documents
required to be delivered by this Section 6 shall be delivered at the office
of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing
Date.
7. Reimbursement
of
Underwriters’ Expenses.
If the sale of
the Securities provided for herein is not consummated because any condition
to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform
any
agreement herein or comply with any provision hereof other than by reason of
a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification
and Contribution.
(a)
The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any
and all losses, claims, damages or liabilities, joint or several, to which
they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus or in any amendment thereof
or
19
supplement
thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each
Underwriter
severally and not jointly agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth (i) in the last paragraph
of
the cover page regarding delivery of the Securities and under the heading
“Underwriting”, (ii) the list of Underwriters and their respective
participation in the sale of the Securities, (iii) the sentences related to
concessions and reallowances and (iv) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids in each
Preliminary Prospectus and in the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in a Preliminary Prospectus or the Prospectus.
(c) Promptly
after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided,
however,
that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
An
20
indemnifying
party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In
the event that
the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
the
same) (collectively “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however,
that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits 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 as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and
commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission
or
alleged omission to state a material fact relates to information provided by
the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act or
the
Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default
by an
Underwriter.
If any one or
more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided,
however,
that in the event
that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
21
amount
of
Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do
not
purchase all the Securities, this Agreement will terminate without liability
to
any nondefaulting Underwriter or the Company. In the event of a default by
any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination.
This Agreement
shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment
(i) trading in the Company’s Units, Common Stock or Warrants shall have
been suspended by the Commission or the American Stock Exchange or trading
in
securities generally on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or limited or minimum prices shall have
been
established on either of such exchanges, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representative, impractical or inadvisable
to
proceed with the offering or delivery of the Securities as contemplated by
the
Statutory Prospectus or the Prospectus (exclusive of any supplement
thereto).
11. Representations
and Indemnities to Survive.
The respective
agreements, representations, warranties, indemnities and other statements of
the
Company or its officers and of the Underwriters set forth in or made pursuant
to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any
of
the officers, directors, employees, agents or controlling persons referred
to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representative, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to the General Counsel, Citigroup Global Markets Inc., at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or,
if
sent to the Company, will be mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇
and confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇,
attention of the Legal Department.
13. Successors.
This Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. No
Fiduciary
Duty.
The Company
hereby acknowledges that (a) the purchase and sale of the Securities pursuant
to
this Agreement is an arm’s-length commercial transaction between the Company, on
the one hand, and the Underwriters and any affiliate through which it may be
acting, on the other, (b) the Underwriters are acting as principal and not
as an
agent or fiduciary of the Company and (c) the Company’s engagement of the
Underwriters in connection with the offering and the process leading up to
the
offering is as independent contractors and not in any other capacity.
Furthermore, the
22
Company
agrees that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services
of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
15. Integration.
This Agreement
supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Underwriters, or any of them, with respect to the
subject matter hereof.
16. Applicable
Law.
This Agreement
will be governed by and construed in accordance with the laws of the State
of
New York applicable to contracts made and to be performed within the State
of
New York.
17. Waiver
of Jury
Trial.
The Company
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
18. Counterparts.
This Agreement
may be signed in one or more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same
agreement.
19. Headings.
The section
headings used herein are for convenience only and shall not affect the
construction hereof.
20. Definitions.
The terms that
follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall
mean
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Business
Day”
shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day
on which banking institutions or trust companies are authorized or obligated
by
law to close in New York City.
“Commission”
shall
mean the Securities and Exchange Commission.
“Effective
Date”
shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
“Exchange
Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution
Time”
shall mean the date and time that this Agreement is executed and delivered
by
the parties hereto.
“Free
Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
23
“Preliminary
Prospectus” shall mean any preliminary prospectus referred to in
paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
“Prospectus”
shall
mean the prospectus relating to the Securities that is first filed pursuant
to
Rule 424(b) after the Execution Time.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430A, as amended at the Execution Time and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or
such Rule 462(b)
Registration Statement, as the case may be.
“Rule
158”, “Rule
163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430A” and “Rule 433” refer to such rules under the Act.
“Rule
430A
Information” shall mean information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when
it
becomes effective pursuant to Rule 430A.
“Rule 462(b)
Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered by
the registration statement referred to in Section 1(a) hereof.
“Statutory
Prospectus” shall mean the Preliminary Prospectus dated [·],
2007, relating
to the Securities that was first filed as part of Registration Statement with
the Commission on [·],
2007.
24
If
the foregoing is in accordance with your understanding of our agreement, please
sign and return to us the enclosed duplicate hereof, whereupon this letter
and
your acceptance shall represent a binding agreement among the Company and the
several Underwriters.
| Very truly yours, | |||
| GSC Acquisition Company | |||
| By: | |||
|
|
|||
| Name: | |||
| Title: | |||
25
| Citigroup Global Markets Inc. | ||
| By: | ||
|
|
||
| Name: | ||
| Title: | ||
For
itself and the
other
several
Underwriters named in
Schedule
I to the
foregoing
Agreement.
26
SCHEDULE I
|
Underwriters
|
Number
of
Underwritten Securities
to
be
Purchased
|
|
Citigroup
Global Markets Inc.
|
|
| Ladenburg ▇▇▇▇▇▇▇▇ & Co. Inc. | |
| I-Bankers Securites, Inc. | |
|
==========
|
|
|
Total
|
15,000,000
|
27
EXHIBIT
A
FORM
OF WAIVER
LETTER
[Letterhead
of
prospective vendor or target business.]
GSC
Acquisition
Company
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇
▇▇▇▇▇
[DATE]
Ladies
and
Gentlemen:
We
understand that GSC Acquisition Company (the “Company”) is a recently organized
blank check company formed for the purpose of acquiring (an “Initial Business
Combination”) one or more businesses or assets. We further understand that the
Company’s sole assets consist of the cash proceeds of the recent initial public
offering (the “IPO”) and private placement of its securities, and that
substantially all of those proceeds have been deposited in a trust account
with
a third party (the “Trust Account”) for the benefit of the Company, its public
stockholders (as defined in the agreement governing the Trust Account) and
the
underwriter[s] of its IPO. The monies in the Trust Account may be disbursed
only
(1) to the Company in limited amounts from time to time (and in no event more
than $2,000,000 in total) in order to permit the Company to pay its operating
expenses; (2) if the Company completes an initial business combination, to
certain dissenting public stockholders, to the underwriter[s] in the amount
of
underwriting discounts and commissions they earned in the IPO but whose payment
they have deferred, and then to the Company; and (3) if the Company fails to
complete an initial business combination within the allotted time period and
liquidates subject to the terms of the agreement governing the Trust Account,
to
the Company in limited amounts to permit the Company to pay the costs and
expenses of its liquidation and dissolution and then to the Company’s public
stockholders.
For
and in
consideration of the Company’s
agreement to
[engage
our
services][evaluate
us for
purposes of consummating its Initial Business Combination], we hereby agree
to
waive
any right, title, interest or claim of any kind (any
“Claim”)
we
have or may have in the future in
or to any monies
in the Trust Account and
not to seek
recourse against the Trust Account or any funds distributed therefrom (except
amounts released to the Company as described in clause (1) of the preceding
paragraph)
as a result of, or
arising out of, any Claims
against the
Company in connection with
contracts or
agreements with the Company or
in connection
with services performed for or products provided to the Company.
This
letter shall
be governed by and construed and enforced in accordance with the laws of the
State of New York. We hereby irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this letter agreement or any Claim subject
hereto.
| Very truly yours, | |||
|
[NAME
OF
VENDOR/TARGET]
|
|||
| By: | |||
|
|
|||
| Name: | |||
| Title: | |||