UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 25, 2013
MEDWORTH ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-35984 | 46-1970047 | ||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
|
801 Brickell Avenue Suite 943 |
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| Miami, Florida | 33131 | ||
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (305) 347-5180
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Securities Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement |
On June 26, 2013, the registration statement on Form S-1 (File No. 333-188706) (the “Original Registration Statement”) for the initial public offering (the “IPO”) of MedWorth Acquisition Corp. (the “Company”) was declared effective by the Securities and Exchange Commission. The Company also filed, on June 27, 2013, a registration statement on Form S-1 (File No. 333-189623) under Rule 462(b) under the Securities Act of 1933, as amended, which increased the shares of common stock, $0.0001 par value (the “Common Stock”), offered in the IPO by 10% and which became effective immediately upon filing.
In connection with the IPO, the Company entered into the following agreements:
| · | An Underwriting Agreement between the Company and EarlyBird Capital, Inc.; |
| · | An Investment Management Trust Agreement between the Company and Continental Stock Transfer & Trust Company; |
| · | A Stock Escrow Agreement among the Company, Continental Stock Transfer & Trust Company and each initial stockholder of the Company; |
| · | A Registration Rights Agreement between the Company and each initial stockholder of the Company; |
| · | Letter Agreements with each of the Company’s officers, directors and initial stockholders; |
| · | Subscription Agreements between the Company, Broad and Cassel (as escrow agent) and each subscriber for shares of Common Stock to be purchased in a private placement to close concurrently with the IPO (the “Sponsors’ Shares”) and |
| · | A First Review Agreement among the Registrant, Allied Medical Supply, Inc. and Anthony Minnuto. |
The terms of the foregoing agreements are described in the Original Registration Statement and such descriptions are incorporated herein by reference. Reference is also hereby made to the complete text of the foregoing agreements, which are filed as exhibits to this Current Report on Form 8-K or were filed with the Original Registration Statement and are incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
On June 25, 2013, the Company filed in the State of Delaware an Amended and Restated Certificate of Incorporation to include certain provisions that will apply prior to the Company’s consummation of an initial business combination. The Amended and Restated Certificate of Incorporation provides, among other things, that:
| · | prior to the consummation of the Company’s initial business combination, the Company shall seek stockholder approval of the initial business combination at a meeting called for such purpose at which public stockholders may seek to convert their shares, regardless of whether they vote for or against the proposed business combination, into their pro rata share of the aggregate amount then on deposit in the trust account (net of taxes payable and interest income); |
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| · | the Company will consummate the initial business combination only if it has net tangible assets of at least $5,000,001 upon such consummation and a majority of the outstanding shares of Common Stock voted are voted in favor of the business combination; |
| · | if the Company’s initial business combination is not consummated within 18 months from the date of its final prospectus, then the Company will distribute all amounts in the trust account and any net assets remaining outside the trust account (subject to the Company’s obligations under Delaware law to provide for claims of creditors and the Company’s obligation to redeem outstanding shares of its Common Stock at par value) on a pro rata basis to all of its public stockholders and will cease operations except for the purpose of winding up the business; |
| · | the Company may not consummate any other business combination, merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar transaction prior to its initial business combination; and |
| · | prior to the Company’s initial business combination, it may not issue (i) any shares of Common Stock or any securities convertible into Common Stock, (ii) any securities that participate in any manner in the proceeds of the trust account, or (iii) any securities that vote as a class with the Common Stock sold in the initial public offering on its initial business combination. |
The above description of the Amended and Restated Certificate of Incorporation is not complete and is qualified in its entirety by the full text of the Amended and Restated Certificate of Incorporation, which is filed as Exhibit 3.1 to this Current Report on Form 8-K.
| Item 9.01. | Financial Statement and Exhibits |
| (d) | Exhibits. |
| Exhibit No. | Description |
| 1.1 | Underwriting Agreement dated June 26, 2013 by and between the Registrant and EarlyBirdCapital, Inc.* |
| 1.2 | Merger and Investment Banking Agreement dated June 26, 2013 by and between the Registrant and EarlyBirdCapital, Inc.* |
| 3.1 | Amended and Restated Certificate of Incorporation dated June 25, 2013.* |
| 10.1 | Letter Agreement from Anthony Minnuto.* |
| 10.2 | Letter Agreement from Charles F. Fistel.* |
| 10.3 | Letter Agreement from Stephen B. Cichy.* |
| 10.4 | Letter Agreement from John J. Delucca.* |
| 10.5 | Letter Agreement from Jeffrey A. Rein.* |
| 10.6 | Letter Agreement from Robert G. Savage.* |
| 10.7 | Letter Agreement from Howard I. Schwartz, M.D.* |
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| 10.8 | Investment Management Trust Agreement dated June 26, 2013 between Continental Stock Transfer & Trust Company and the Registrant.* |
| 10.9 | Stock Escrow Agreement dated June 26, 2013 among the Registrant, Continental Stock Transfer & Trust Company and holders of Founders’ shares.* |
| 10.10 | Promissory Note dated June 25, 2013 payable to Anthony Minnuto.* |
| 10.11 | Subscription Agreement among the Registrant, Broad and Cassel and Anthony Minnuto.** |
| 10.12 | Subscription Agreement among the Registrant, Broad and Cassel and Charles F. Fistel.** |
| 10.13 | Subscription Agreement among the Registrant, Broad and Cassel and Stephen B. Cichy.** |
| 10.14 | Subscription Agreement among the Registrant, Broad and Cassel and Anthony Minnuto.* |
| 10.15 | Subscription Agreement among the Registrant, Broad and Cassel and Jeffrey A. Rein.* |
| 10.16 | Registration Rights Agreement among the Registrant and the holders of Founders’ Shares and Sponsors’ Shares.* |
| 10.17 | First Review Agreement among the Registrant, Allied Medical Supply, Inc. and Anthony Minnuto.* |
* Filed herewith.
** Incorporated by reference from the Registrant Registration Statement on Form S-1 (File No. 333-188706).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MEDWORTH ACQUISITION CORP. | ||||
| Date: July 1, 2013 | By: | /s/ Charles F. Fistel | ||
|
Charles F. Fistel Chief Executive Officer and Chief Financial Officer |
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Exhibit 1.1
6,600,000 Shares of Common Stock
MedWorth Acquisition Corp.
UNDERWRITING AGREEMENT
New York, New York
June 26, 2013
EarlyBirdCapital, Inc.
275 Madison Avenue, Suite 2701
New York, New York 10016
As Representative of the Underwriters
named on Schedule A hereto
Ladies and Gentlemen:
MedWorth Acquisition Corp., a Delaware corporation (the “Company”), hereby confirms its agreement with EarlyBirdCapital, Inc. (the “Representative”) and with the other underwriters named on Schedule A hereto, for which the Representative is acting as representative (the Representative, with such other underwriters being collectively referred to herein as the “Underwriters” or, individually, an “Underwriter”) as follows:
1. Purchase and Sale of Securities.
1.1. Firm Securities.
1.1.1. Purchase of Firm Shares. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters, severally and not jointly, an aggregate of 6,600,000 shares (the “Firm Shares”) of Common Stock, par value $0.0001 per share (the “Common Stock”), of the Company at a purchase price (net of discounts and commissions) of $7.72 per Firm Share. The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares set forth opposite their respective names on Schedule A. The Firm Shares are to be offered initially to the public (the “Offering”) at the offering price of $8.00 per Firm Share.
| EarlyBirdCapital, Inc. June 26, 2013 Page 2 of 45 |
1.1.2. Payment and Delivery. Delivery and payment for the Firm Shares shall be made at 10:00 A.M., New York time, on the third (3rd) Business Day following the commencement of trading of the Firm Shares, or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of the Representative or at such other place as shall be agreed upon by the Representative and the Company. The closing of the Offering is referred to herein as the “Closing” and the hour and date of delivery and payment for the Firm Shares is referred to herein as the “Closing Date.” Payment for the Firm Shares shall be made on the Closing Date through the facilities of Depository Trust Company (“DTC”) by wire transfer in Federal (same day) funds. The Company shall receive an aggregate of $50,710,000 net proceeds from the sale of the Firm Shares and the Sponsor Shares (defined in Section 1.4.2 below), of which $55,176,000 shall be deposited on the Closing Date into the trust account (the “Trust Account”) established by the Company for the benefit of the Public Stockholders (as defined below), as described in the Registration Statement (as defined in Section 2.1.1 hereof) and pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”) between the Company and Continental Stock Transfer & Trust Company (“CST&T”). The remaining proceeds (less actual expense payments or other fees payable pursuant to this Agreement) shall be paid to the order of the Company upon delivery of certificates (in form and substance reasonably satisfactory to the Representative) representing the Firm Shares (or through the facilities of the DTC for the account of the Representative). The Firm Shares shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two (2) Business Days (defined below) prior to the Closing Date. The Company will permit the Representative to examine and package the Firm Shares for delivery at least one (1) full Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Shares except upon tender of payment by the Representative for all the Firm Shares. As used herein, the term “Business Day” shall mean any day other than a Saturday, Sunday or any day on which national banks in New York, New York are not open for business, and the term “Public Stockholders” means the holders of shares of Common Stock sold in the Offering or acquired in the aftermarket, including any of the Insiders (as defined in Section 1.4.1 herein) to the extent they acquire such shares of Common Stock in the Offering or in the aftermarket (and solely with respect to such shares).
1.2. Over-Allotment Option
1.2.1. The Representative shall have the option (the “Over-Allotment Option”) to purchase all or less than all of an additional 990,000 shares of Common Stock (the “Option Shares”) for the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Shares. Such Option Shares shall, at the Representative’s election, be purchased for each account of the several Underwriters in the same proportion as the number of Firm Shares set forth opposite such Underwriter’s name on Schedule A hereto (subject to adjustment by the Representative to eliminate fractions). Such Option Shares shall be identical in all respects to the Firm Shares. The Firm Shares and the Option Shares are hereinafter collectively referred to as the “Public Securities.” No Option Shares shall be sold or delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered. The right to purchase the Option Shares, or any portion thereof, may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representative to the Company. The purchase price to be paid for each Option Share (net of discounts and commissions) will be $7.72 per Option Share.
| EarlyBirdCapital, Inc. June 26, 2013 Page 3 of 45 |
1.2.2. Exercise of Option. The Over-Allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Shares within 45 days after the Effective Date. The Representative will not be under any obligation to purchase any Option Shares prior to the exercise of the Over-Allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company by the Representative, which must be confirmed in accordance with Section 10.1 herein setting forth the number of Option Shares to be purchased and the date and time for delivery of and payment for the Option Shares (the “Option Closing Date”), which will not be later than five (5) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of the Representative or at such other place as shall be agreed upon by the Company and the Representative. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey to the Representative, and, subject to the terms and conditions set forth herein, the Representative will become obligated to purchase, the number of Option Shares specified in such notice.
1.2.3. Payment and Delivery. Payment for the Option Shares shall be made on the Option Closing Date at the Representative’s election by wire transfer in Federal (same day) funds or by certified or bank cashier’s check(s) in New York Clearing House funds, payable as follows: $7.72 per Option Share shall be deposited in the Trust Fund pursuant to the Trust Agreement upon delivery of certificates (in form and substance satisfactory to the Representative) representing the Option Shares (or through the facilities of DTC) for the account of the Representative). The certificates representing the Option Shares to be delivered will be in such denominations and registered in such names as the Representative requests not less than two full business days prior to the Closing Date or the Option Closing Date, as the case may be, and will be made available to the Representative for inspection, checking and packaging at the aforesaid office of the Company’s transfer agent or correspondent not less than one full business day prior to such Closing Date.
1.3. Representative’s Purchase Option. The Company hereby agrees to issue and sell to the Representative (and/or its designees) on the Closing Date, for an aggregate purchase price of $100.00, an option (“Representative’s Purchase Option”) to purchase up to an aggregate of 660,000 shares of Common Stock (the “Representative’s Shares”). The Representative’s Purchase Option shall be exercisable whether for cash or on a cashless basis, in whole or in part, commencing on the later of the consummation of a Business Combination or one year from the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per Representative’s Share of $8.00, which is equal to one hundred percent (100%) of the initial public offering price of a share of Common Stock. On the Closing Date, the Company shall deliver to the Representative, upon payment therefor, certificates for the Representative’s Purchase Option in the name or names and in such denominations as the Representative may request. The Representative’s Purchase Option and the Representative’s Shares are hereinafter referred to collectively as the “Representative’s Securities.” Delivery and payment for the Representative’s Purchase Option shall be made on the Closing Date.
| EarlyBirdCapital, Inc. June 26, 2013 Page 4 of 45 |
1.4. Private Placements.
1.4.1. The Company has issued to certain persons and entities referenced in Part II, Item 15 of the Registration Statement (collectively, the “Insiders”), for aggregate consideration of $25,000, 1,897,500 shares of Common Stock (the “Insider Shares”) in a private placement intended to be exempt from registration under Section 4(2) of the Securities Act of 1933, as amended (the “Act”). No underwriting discounts, commissions or placement fees have been or will be payable in connection with the sale of the Insider Shares. Until six months after the consummation of a Business Combination (as defined in Section 1.4.2) with respect to 50% of the Insider Shares and until one year after the consummation of a Business Combination with respect to the remaining 50% of the Insider Shares, except in certain limited situations, the Insiders will not be able to sell or transfer the Insider Shares. The Insiders shall have no right to any liquidation distributions with respect to any portion of the Insider Shares in the event the Company fails to consummate a Business Combination within the required time period except with respect to any funds held outside of the Trust Account remaining after payment of all fees and expenses. The Insiders shall not have conversion rights with respect to the Insider Shares. To the extent that the Over-allotment Option is not exercised by the Underwriters in full or in part, up to 247,500 of the Insider Shares shall be subject to forfeiture by certain of the Insiders. The Insiders will be required to forfeit only a number of shares of Common Stock necessary to maintain their 20% ownership interest in the shares of Common Stock after giving effect to the Offering and exercise, if any, of the Underwriters’ Over-allotment Option (and excluding the purchase of the Sponsor Shares and any shares purchased in the Offering).
1.4.2. Simultaneously with the Closing Date, certain of the Insiders will purchase from the Company pursuant to Subscription Agreements (as defined in Section 2.24.2 hereof), an aggregate of 634,250 shares of Common Stock (the “Sponsor Shares”) at a purchase price of $8.00 per Sponsor Share, and if the Over-Allotment Option is exercised, certain of the Insiders will purchase from the Company at a price of $8.00 per Sponsor Share the number of Sponsor Shares (up to a maximum of 79,200 Sponsor Shares) that is necessary to maintain in the Trust Account an amount equal to $8.36 per Public Security, in a private placement (the “Private Placement”) intended to be exempt from registration under the Act. The Sponsor Shares will generally be identical to the Firm Shares. However, the Insiders have agreed (A) to vote their Sponsor Shares in favor of any proposed initial merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (“Business Combination”), (B) not to convert any Sponsor Shares in connection with a stockholder vote to approve a proposed initial Business Combination and (C) to waive any liquidation distribution with respect to the Sponsor Shares that might otherwise be available from funds held outside of the Trust Account. None of the Sponsor Shares may be sold, assigned or transferred by the initial purchasers or their affiliates until 30 days after the consummation of a Business Combination (except in certain limited situations). No underwriting discounts, commissions or placement fees have been or will be payable in connection with the Private Placement.
| EarlyBirdCapital, Inc. June 26, 2013 Page 5 of 45 |
1.5. Working Capital; Trust Account Proceeds.
1.5.1. Working Capital. Upon consummation of the Offering, it is intended that approximately $405,000 of the proceeds from the sale of the Firm Shares and Sponsor Shares will be released to the Company to fund the working capital requirements of the Company.
1.5.2. Trust Account Proceeds. Prior to the liquidation of the Trust Account in the event the Company has not completed a Business Combination by the Termination Date (as defined in Section 7.6), interest income on the funds held in the Trust Account may be released to the Company from the Trust Account in accordance with the terms of the Trust Agreement to pay any taxes incurred by the Company and to fund the Company’s working capital corporate requirements, all as more fully described in the Prospectus (as defined in Section 2.1.1).
2. Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as follows:
2.1. Filing of Registration Statement.
2.1.1. Pursuant to the Act. The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-188706), including any related preliminary prospectus (the “Preliminary Prospectus”, including any prospectus that is included in the registration statement immediately prior to the effectiveness of the registration statement), for the registration of the Public Securities under the Act, which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Act, and the rules and regulations (the “Regulations”) of the Commission under the Act. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement became effective (“Effective Date”), including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to Rule 430A of the Regulations, together with the registration statement filed by the Company pursuant to Rule 462(b) under the Act registering additional Public Securities (the “Rule 462(b) Registration Statement”), is hereinafter called the “Registration Statement,” and the form of the final prospectus dated the Effective Date included in the Registration Statement (or, if applicable, the form of final prospectus containing information permitted to be omitted at the time of effectiveness by Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of the Regulations), is hereinafter called the “Prospectus.” For purposes of this Agreement, “Time of Sale”, as used in the Act, means 5:00 p.m., New York City time, on the date of this Agreement. Prior to the Time of Sale, the Company prepared a preliminary prospectus, dated June 11, 2013, for distribution by the Underwriters (the “Statutory Prospectus”). Other than the Registration Statement, together with any correspondence letters between the Company and/or counsel for the Company and the Commission, no other document with respect to the Registration Statement has heretofore been filed under the Act with the Commission. All of the Public Securities have been or will be registered under the Act pursuant to the Registration Statement. The Registration Statement has been declared effective by the Commission on the date hereof. If, subsequent to the date of this Agreement, the Company or the Representative has determined that at the Time of Sale the Statutory Prospectus included an untrue statement of a material fact or omitted a statement of material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and have agreed to provide an opportunity to purchasers of the Firm Shares to terminate their old purchase contracts and enter into new purchase contracts, then the Statutory Prospectus will be deemed to include any additional information available to purchasers at the time of entry into the first such new purchase contract.
| EarlyBirdCapital, Inc. June 26, 2013 Page 6 of 45 |
2.1.2. Pursuant to the Exchange Act. The Company has filed with the Commission a Registration Statement on Form 8-A (File Number 001-35984) providing for the registration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the shares of Common Stock. The registration of the Common Stock under the Exchange Act has been declared effective by the Commission on the date hereof.
2.2. No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any foreign or state regulatory authority has issued any order or threatened to issue any order preventing or suspending the use of any Statutory Prospectus or Prospectus or has instituted or, to the best of the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
2.3. Disclosures in Registration Statement.
2.3.1. 10b-5 Representation. At the time of effectiveness of the Registration Statement (or at the effective time of any post-effective amendment to the Registration Statement) and at all times subsequent thereto up to the Closing Date, the Registration Statement, the Statutory Prospectus and the Prospectus contained or will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and did or will, in all material respects, conform to the requirements of the Act and the Regulations. On the Effective Date and at the Time of Sale, the Registration Statement did not, and on the Closing Date it will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the date of any filing pursuant to Rule 424(b) and on the Closing 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; and at the Time of Sale, the Statutory Prospectus does 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 light of the circumstances under which they were made, not misleading; provided, however, that the representation and warranty made in this Section 2.3.1 does not apply to (i) statements contained in the section captioned “Underwriting – Selling Restrictions – Canada” or (ii) statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Underwriters expressly for use in the Registration Statement, the Statutory Prospectus or Prospectus or any amendment thereof or supplement thereto, which information, it is agreed, shall consist solely of the subsections of the section captioned “Underwriting” captioned “Pricing of this Offering” and “Price Stabilization and Short Positions.”
| EarlyBirdCapital, Inc. June 26, 2013 Page 7 of 45 |
2.3.2. Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Statutory Prospectus and the Prospectus conform to the descriptions thereof contained therein and there are no agreements or other documents required to be described in the Registration Statement, the Statutory Prospectus or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which its property or business is or may be bound or affected and (i) that is referred to in the Registration Statement or attached as an exhibit thereto, or (ii) is material to the Company’s business, has been duly and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in all material respects in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the foreign, federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and none of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in breach or default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a breach or default thereunder. To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.3.3. Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company since the date of the Company’s formation, except as disclosed in the Registration Statement.
2.3.4. Regulations. The disclosures in the Registration Statement, the Statutory Prospectus and the Prospectus concerning the effects of foreign, federal, state and local regulation on the Company’s business as currently contemplated are correct in all material respects and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
| EarlyBirdCapital, Inc. June 26, 2013 Page 8 of 45 |
2.4. Changes After Dates in Registration Statement.
2.4.1. No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company; (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; (iii) no member of the Company’s board of directors or management has resigned from any position with the Company and (iv) no event or occurrence has taken place which materially impairs, or would likely materially impair, with the passage of time, the ability of the members of the Company’s board of directors or management to act in their capacities with the Company as described in the Registration Statement, the Statutory Prospectus and the Prospectus.
2.4.2. Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the Prospectus and except as may otherwise be indicated or contemplated herein or therein, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
2.5. Independent Accountants. Marcum LLP (“Marcum”), whose report is filed with the Commission as part of the Registration Statement and included in the Registration Statement, the Statutory Prospectus and the Prospectus, are independent registered public accountants as required by the Act, the Regulations and the Public Company Accounting Oversight Board (the “PCAOB”), including the rules and regulations promulgated by such entity. To the Company’s knowledge, Marcum is duly registered and in good standing with the PCAOB. Marcum has not, during the periods covered by the financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.6. Financial Statements; Statistical Data.
2.6.1. Financial Statements. The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus, fairly present in all material respects the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein in conformity with the Regulations. No other financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Statutory Prospectus or the Prospectus. The Registration Statement, the Statutory Prospectus and the Prospectus disclose all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, prospects, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. There are no pro forma or as adjusted financial statements which are required to be included in the Registration Statement, the Statutory Prospectus or the Prospectus in accordance with Regulation S-X of the Regulations which have not been included as so required.
| EarlyBirdCapital, Inc. June 26, 2013 Page 9 of 45 |
2.6.2. Statistical Data. The statistical, industry-related and market-related data included in the Registration Statement, the Statutory Prospectus and/or the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
2.7. Authorized Capital; Options, etc. The Company had at the date or dates indicated in each of the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be, duly authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Statutory Prospectus and the Prospectus. Based on the assumptions stated in the Registration Statement, the Statutory Prospectus and the Prospectus, the Company will have on the Closing Date the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Statutory Prospectus and the Prospectus, on the Effective Date and on the Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock or any security convertible into shares of Common Stock, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
2.8. Valid Issuance of Securities, etc.
2.8.1. Outstanding Securities. All issued and outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding shares of Common Stock conform to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus. All offers, sales and any transfers of the outstanding shares of Common Stock of the Company were at all relevant times either registered under the Act and the applicable state securities or Blue Sky laws or exempt from such registration requirements.
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2.8.2. Securities To Be Sold.
2.8.2.1. The Public Securities have been duly authorized and reserved for issuance and when issued and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Public Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities has been duly and validly taken. The Public Securities conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
2.8.2.2. When issued, the Representative’s Purchase Option will constitute the valid and binding obligation of the Company to issue and sell, upon exercise thereof and payment of the exercise price therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof and such Representative’s Purchase Option is enforceable against the Company in accordance with its terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under foreign, federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Representative’s Shares have been reserved for issuance upon the exercise of the Representative’s Purchase Option upon payment of the consideration therefore, and when issued in accordance with the terms thereof, will be duly and validly authorized, validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Representative’s Securities conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
2.8.2.3. The Sponsor Shares have been duly authorized and reserved for issuance and when issued and paid for in accordance with the Subscription Agreements, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Sponsor Shares are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Sponsor Shares has been duly and validly taken. The Sponsor Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
2.8.3. No Integration. 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 or the Regulations with the offer and sale of the Public Securities pursuant to the Registration Statement.
2.9. Registration Rights of Third Parties. Except as set forth in the Registration Statement, the 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 of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
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2.10. Validity and Binding Effect of Agreements. This Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement (as defined in Section 2.24.3 hereof), the M&A Agreement (as defined in Section 2.33), the Registration Rights Agreement (as defined in Section 2.24.7) and the Representative’s Purchase Option have been duly and validly authorized by the Company and, when executed and delivered by the Company and the other parties thereto, will constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under foreign, federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.11. No Conflicts, etc. The execution, delivery, and performance by the Company of this Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the M&A Agreement, the Registration Rights Agreement and the Representative’s Purchase Option, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a breach or violation of, or conflict with any of the terms and provisions of, or constitute a default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject except pursuant to the Trust Agreement; (ii) result in any violation of the provisions of the Amended and Restated Certificate of Incorporation or Bylaws of the Company; or (iii) violate any existing applicable statute, law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties, business or assets.
2.12. No Defaults; Violations. No material default or violation exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any term or provision of its Amended and Restated Certificate of Incorporation or in violation of any material franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or businesses.
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2.13. Corporate Power; Licenses; Consents.
2.13.1. Conduct of Business. The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business for the purposes described in the Registration Statement, the Statutory Prospectus and the Prospectus. The disclosures in the Registration Statement, the Statutory Prospectus and the Prospectus concerning the effects of foreign, federal, state and local regulation on this Offering and the Company’s business purpose as currently contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Since its formation and except as described in the Registration Statement, the Company has conducted no business and has incurred no liabilities other than in connection with its formation and in furtherance of the Offering.
2.13.2. Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body, foreign or domestic, is required for the valid issuance, sale and delivery, of the Public Securities and Representative’s Securities and the consummation of the transactions and agreements contemplated by this Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the M&A Agreement, the Registration Rights Agreement and the Representative’s Purchase Option and as contemplated by the Registration Statement, the Statutory Prospectus and Prospectus, except with respect to applicable foreign, federal and state securities laws and the rules and regulations promulgated by the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.14. D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires (the “Questionnaires”) completed by each of the Company’s officers, directors, 5% beneficial owners and owners of unregistered securities acquired within the past 180 days (the “Directors/Officers”) immediately prior to the initial filing of the Registration Statement and provided to the Representative, as such Questionnaires may have been updated from time to time and confirmed by each of the Directors/Officers, as well as the biographies previously provided to the Representative, is true and correct and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires to become inaccurate and incorrect.
2.15. Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any of the Directors/Officers or any of the Insiders, which has not been disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus or in the Questionnaires.
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2.16. Good Standing. The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its jurisdiction of incorporation and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the condition (financial or otherwise), 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) (a “Material Adverse Effect”).
2.17. No Contemplation of a Business Combination. Prior to the date hereof, no Company Affiliate (as hereinafter defined) has, and as of the Closing, the Company and such Company Affiliates will not have: (a) had any specific Business Combination under consideration or contemplation; (b) directly or indirectly, contacted any potential operating assets, business or businesses which the Company may seek to acquire (each, a “Target Business”) or any owner, officer, director, manager, agent or representative thereof or had any substantive discussions, formal or otherwise, with respect to effecting any potential Business Combination with the Company or taken any measure, directly or indirectly, to locate a Target Business; or (c) engaged or retained any agent or other representative to identify or locate any Target Business for the Company.
2.18. Transactions Affecting Disclosure to FINRA.
2.18.1. Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any Company Affiliate with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any Insider that may affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) to any FINRA member; or (iii) to any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the 180-day period prior to the initial filing date of the Registration Statement with the Commission.
2.18.3. To the Company’s knowledge, no officer or director or any direct or indirect beneficial owner of 5% or greater of any class of the Company’s securities, including the Insiders and holders of securities to be purchased in the Private Placement (whether debt or equity, registered or unregistered, regardless of the time acquired or the source from which derived) (any such individual or entity, a “Company Affiliate”) is a member, a person associated, or affiliated with a member of FINRA.
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2.18.4. To the Company’s knowledge, no Company Affiliate is an owner of stock or other securities of any member of FINRA (other than securities purchased on the open market).
2.18.5. To the Company’s knowledge, no Company Affiliate has made a subordinated loan to any member of FINRA.
2.18.6. No proceeds from the sale of the Public Securities or Sponsor Shares (excluding underwriting compensation) will be paid to any FINRA member, or any persons associated or affiliated with a member of FINRA, except as specifically authorized herein.
2.18.7. The Company has not issued any warrants or other securities, or granted any options, directly or indirectly to anyone who is a potential underwriter in the Offering or a related person (as defined by FINRA rules) of such an underwriter within the 180-day period prior to the initial filing date of the Registration Statement with the Commission.
2.18.8. To the Company’s knowledge, no person to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Registration Statement with the Commission has any relationship or affiliation or association with any member of FINRA.
2.18.9. To the Company’s knowledge, no FINRA member intending to participate in the Offering has a conflict of interest (as defined by FINRA rules) with the Company.
2.18.10. Except with respect to the Representative in connection with the Offering, the Company has not entered into any agreement or arrangement (including, without limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date of the Registration Statement with the Commission, which arrangement or agreement provides for the receipt of any item of value and/or the transfer or issuance of any warrants, options, or other securities from the Company to a FINRA member, any person associated with a member (as defined by FINRA rules), any potential underwriters in the Offering and/or any related persons.
2.19. Taxes.
2.19.1. There are no transfer taxes or other similar fees or charges under U.S. federal law or the laws of any U.S. 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 Public Securities.
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2.19.2. The Company has filed all U.S. federal, state and local tax returns that are required to be a filed or has requested extensions thereof, except in any case in which the failure to so file would not have a Material Adverse Effect, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing in due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
2.20. Foreign Corrupt Practices Act. Neither the Company nor any of the Company Affiliates or any other person acting on behalf of the Company is aware of or has taken any action, directly or indirectly, that: (i) 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”) or otherwise subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding; (ii) if not done in the past, might reasonably be expected to have had a Material Adverse Effect or (iii) if not continued in the future, might reasonably be expected to materially and adversely affect the assets, business or operations of the Company, including, without limitation, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction). The Company’s internal accounting controls and procedures are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as amended.
2.21. Currency and Foreign Transactions Reporting Act. The operations of the Company are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transaction Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, 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 best knowledge of the Company, threatened.
2.22. Bank Secrecy Act; Money Laundering; Patriot Act. Neither the Company, nor to the Company’s knowledge, any Company Affiliate, has violated: (i) the Bank Secrecy Act, as amended, (ii) the Money Laundering Laws or (iii) the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations promulgated under any such law, or any successor law.
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2.23. Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or to its counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.24. Agreements With Company Affiliates.
2.24.1. Insider Letters. The Company has caused to be duly executed legally binding and enforceable agreements (except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (ii) as enforceability of any indemnification, contribution or non-compete provision may be limited under foreign, federal and state securities laws, and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) in the form annexed as an exhibit to the Registration Statement (the “Insider Letters”), pursuant to which each of the Company Affiliates agrees to certain matters, including but not limited to, the voting of shares of Common Stock held by them and certain matters described as being agreed to by them under the “Proposed Business” section of the Registration Statement, the Statutory Prospectus and Prospectus.
2.24.2. Subscription Agreements. The Insiders have each executed and delivered a subscription agreement, the forms of which are annexed as exhibits to the Registration Statement (individually a “Subscription Agreement” and collectively, the “Subscription Agreements”), pursuant to which the Insiders have agreed, among other things, to purchase on the Closing Date an aggregate of 634,250 Sponsor Shares in the Private Placement. Pursuant to the Subscription Agreements, the Insiders have waived any and all rights and claims they may have to any proceeds, and any interest thereon, held in the Trust Account in respect of the Sponsor Shares in the event that a Business Combination is not consummated and the Trust Account is liquidated in accordance with the terms of the Trust Agreement.
2.24.3. Escrow Agreement. The Company has caused the Insiders to enter into an escrow agreement (the “Escrow Agreement”) with CST&T substantially in the form filed as an exhibit to the Registration Statement whereby the Insider Shares owned by such parties prior to the Offering will be held in escrow by CST&T for a period (the “Escrow Period”) commencing on the Effective Date and expiring (i) with respect to 50% of the Insider Shares, on the six month anniversary of the consummation of the Business Combination and (ii) with respect to the remaining 50% of the Insider Shares, on the one year anniversary of the consummation of the Business Combination, or earlier in each case in certain limited situations. During the Escrow Period, such parties shall be prohibited from selling or otherwise transferring such Insider Shares, except in certain limited circumstances set forth in the Escrow Agreement. To the Company’s knowledge, the Escrow Agreement is enforceable against each of the Insiders and will not, with or without the giving of notice or the lapse of time or both, result in a breach of, or conflict with, any of the terms and provisions of, or constitute a default under, an agreement or instrument to which any of the Insiders is a party. The Escrow Agreement shall not be amended, modified or otherwise changed without the prior written consent of the Representative, such consent not to be unreasonably withheld.
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2.24.4. Non-Competition/Solicitation. To the Company’s knowledge, no Directors/Officers are subject to any non-competition agreement or non-solicitation agreement with any employer or prior employer which could materially affect each Director’s/Officer’s ability to be and act in the capacity of a Director/Officer of the Company.
2.24.5. Loans. Certain of the Insiders made loans to the Company in the aggregate amount of $125,000, as such amount may be increased as described in the Registration Statement (the “Insider Loans”) pursuant to promissory notes substantially in the form annexed as an exhibit to the Registration Statement. The Insider Loans do not bear any interest and are repayable by the Company on the consummation of the Offering.
2.24.6. Registration Rights Agreement. The Company and the Insiders have entered into a registration rights agreement (“Registration Rights Agreement”) substantially in the form annexed as an exhibit to the Registration Statement, whereby the Insiders will be entitled to certain registration rights with respect to the Insider Shares and Sponsor Shares, among other shares, as set forth in such Registration Rights Agreement and described more fully in the Registration Statement.
2.25. Investment Management Trust Agreement. The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering and the Private Placement substantially in the form filed as an exhibit to the Registration Statement, pursuant to which the funds held in the Trust Account may be released under limited circumstances.
2.26. Investments. No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company Act of 1940 (“Investment Company Act”)) of the Company’s total assets (exclusive of cash items and “Government Securities,” as defined in Section 2(a)(16) of the Investment Company Act) consist of, and no more than 45% of the Company’s net income after taxes is derived from, securities other than Government Securities.
2.27. Investment Company Act. The Company is not required, and upon the issuance and sale of the Public Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be required, to register as an “investment company” under the Investment Company Act.
2.28. Subsidiaries. The Company does not own an interest in any corporation, partnership, limited liability company, joint venture, trust or other business entity.
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2.29. Related Party Transactions. No relationship, direct or indirect, exists between or among any of the Company or any Company Affiliate, on the one hand, and any director, officer, shareholder, customer or supplier of the Company or any Company Affiliate, on the other hand, which is required by the Act, the Exchange Act or the Regulations to be described in the Registration Statement, the Statutory Prospectus and the Prospectus, which is not so described as required. There are no outstanding loans, advances or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the 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.
2.30. No Influence. The Company has not offered, or caused the Underwriters to offer, the Firm Shares to any person or entity with the intention of unlawfully influencing: (a) a customer or supplier of the Company or any affiliate of the Company to alter the customer’s or supplier’s level or type of business with the Company or such affiliate or (b) a journalist or publication to write or publish favorable information about the Company or any such affiliate.
2.31. Sarbanes-Oxley. The Company is in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended (“SOX”), and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any governmental or self regulatory entity or agency, that are applicable to it as of the date hereof.
2.32. Nasdaq Eligibility. As of the Effective Date, the Public Securities have been approved for listing on the Nasdaq Capital Markets (“NASDAQ”). There is and has been no failure on the part of the Company or any of the Company's directors or officers, in their capacities as such, to comply with (as and when applicable), and immediately following the effectiveness of the Registration Statement the Company will be in compliance with, the NASDAQ Marketplace Rules, as amended.
2.33. M&A Agreement. The Company and the Representative have entered into a separate merger and investment banking agreement substantially in the form filed as an exhibit to the Registration Statement (the “M&A Agreement”).
2.34. Emerging Growth Status. From the date of the Company’s formation through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”).
2.35. Testing-The-Waters Communications. The Company (a) has not engaged in any Testing-the-Waters Communication and (b) has not authorized anyone to engage in Testing-the-Waters Communications. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act.
2.36. Definition of “Knowledge”. As used in herein, the term “knowledge of the Company” (or similar language) shall mean the knowledge of the Company’s Directors/Officers, with the assumption that such officers and directors shall have made reasonable and diligent inquiry of the matters presented.
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3. Covenants of the Company. The Company covenants and agrees as follows:
3.1. Amendments to Registration Statement. The Company will deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and shall not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2. Federal Securities Laws.
3.2.1. Compliance. During the time when a prospectus is required to be delivered under the Act, the Company will use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Regulations and the Exchange Act and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus relating to the Public Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Statutory Prospectus and the Prospectus, as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary during such period to amend the Registration Statement or amend or supplement the Statutory Prospectus and Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission, subject to Section 3.1 hereof, an appropriate amendment to the Registration Statement or amendment or supplement to the Statutory Prospectus and Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
3.2.2. Filing of Final Prospectus. The Company will promptly file the Prospectus (in form and substance satisfactory to the Representative) with the Commission pursuant to the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act Registration. For a period of five years from the Effective Date (except in connection with a going private transaction), or until such earlier time upon which the Trust Account is to be liquidated if a Business Combination has not been consummated by the Termination Date: the Company (i) will use its best efforts to maintain the registration of the shares of Common Stock under the provisions of the Exchange Act and (ii) will not deregister the shares of Common Stock under the Exchange Act without the prior written consent of the Representative.
3.2.4. Free Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, without the prior consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied with and will comply with the applicable requirements of Rule 433 of the Act, including timely Commission filing where required, legending and record keeping.
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3.2.5. Sarbanes-Oxley Compliance. As soon as it is legally required to do so, the Company shall take all actions necessary to obtain and thereafter maintain material compliance with each applicable provision of SOX and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any other governmental or self regulatory entity or agency with jurisdiction over the Company.
3.3. Emerging Growth Company Status. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the earlier of five years after the consummation of the Company’s initial Business Combination, or the liquidation of the Trust Account if a Business Combination is not consummated by the Termination Date.
3.4. Delivery of Materials to Underwriters. The Company will deliver to each of the several Underwriters, without charge and from time to time during the period when a prospectus is required to be delivered under the Act or the Exchange Act, such number of copies of each Statutory Prospectus, the Prospectus and all amendments and supplements to such documents as such Underwriters may reasonably request.
3.5. Effectiveness and Events Requiring Notice to the Representative. The Company will use its best efforts to cause the Registration Statement to remain effective and will notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any foreign or state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in Section 3.4 hereof that, in the judgment of the Company or its counsel, makes any statement of a material fact made in the Registration Statement, the Statutory Prospectus or the Prospectus untrue or that requires the making of any changes in the Registration Statement, the Statutory Prospectus and Prospectus in order to make the statements therein, (with respect to the Prospectus and the Statutory Prospectus and in light of the circumstances under which they were made), not misleading. If the Commission or any foreign or state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
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3.6. Review of Financial Statements. Until the earlier of five years from the Effective Date, or until the liquidation of the Trust Account if a Business Combination is not consummated by the Termination Date, the Company, at its expense, shall cause its regularly engaged independent certified public accountants to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing of quarterly financial information to stockholders.
3.7. Affiliated Transactions.
3.7.1. Business Combinations. The Company will not consummate a Business Combination with an entity that is affiliated with any Insider, officer or director unless in each case the Company obtains an opinion from an independent investment banking firm that the Business Combination is fair to the Company’s shareholders from a financial point of view and a majority of the Company’s disinterested and independent directors (if there are any) approve such transaction.
3.7.2. Compensation. Except for repayment of the Insider Loans and reimbursement for any out of pocket expenses incurred by the Insiders on behalf of the Company, the Company shall not pay any Insider or Company Affiliate or any of their affiliates any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, this Offering or the consummation of a Business Combination.
3.8. Secondary Market Trading and Standard & Poor’s. If the Company does not maintain the listing of the Public Securities on NASDAQ or another national securities exchange, the Company will (i) apply to be included in Standard & Poor’s Daily News and Corporation Records Corporate Descriptions for a period of five years from the consummation of a Business Combination, (ii) take such commercially reasonable steps as may be necessary to obtain a secondary market trading exemption for the Company’s securities in the State of California and (iii) take such other action as may be reasonably requested by the Representative to obtain a secondary market trading exemption in such other states as may be requested by the Representative.
3.9. Investor Relations Firm. Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain an investor relations firm with the expertise necessary to assist the Company both before and after the consummation of the Business Combination for a term to be agreed upon by the Company and the Representative.
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3.10. Reports to the Representative.
3.10.1. Periodic Reports, etc. For a period of five years from the Effective Date or until such earlier time upon which the Company is required to be liquidated and dissolved, the Company will furnish to the Representative and its counsel copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities, and promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy of each Current Report on Form 8-K and any Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company; (iv) five copies of each registration statement filed by the Company with the Commission under the Securities Act; and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request; provided that the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative and its counsel in connection with the Representative’s receipt of such information. Documents filed with the Commission pursuant to Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) shall be deemed to have been delivered to the Representative pursuant to this section.
3.10.2. For a period of five years following the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain a transfer agent acceptable to the Representative. CST&T is acceptable to the Underwriters.
3.11. Intentionally Omitted.
3.12. Payment of Expenses. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at Closing Date, or such later date as may be agreed to by the Representative in its sole discretion, all fees and expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement, the Statutory Prospectus, and the final Prospectus and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters; (ii) the printing, engraving, issuance and delivery of the shares of Common Stock, including any transfer or other taxes payable thereon; (iii) NASDAQ filing fees or, if necessary, the qualification of the Public Securities under state or foreign securities or Blue Sky laws; (iv) fees and expenses (including legal fees of the Representative not to exceed $15,000) incurred in registering the Offering with FINRA; (v) fees and disbursements of the transfer agent; (vi) the preparation and delivery of transaction lucite cubes or similar commemorative items in a style and quantity as reasonably requested by the Representative; (vii) all costs and expenses of the Company associated with “road show” marketing and “due diligence” trips for the Company’s management to meet with prospective investors, including without limitation, all travel, food and lodging expenses associated with such trips incurred by the Company or such management; and (viii) all other costs and expenses customarily borne by an issuer incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 3.12. The Company also agrees that it will pay for an investigative search firm of the Representative’s choice to conduct an investigation of the principals of the Company as shall be mutually selected by the Representative and the Company (not to exceed $3,000 per principal). The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date the expenses set forth above (which shall be mutually agreed upon between the Company and the Representative prior to Closing) to be paid by the Company to the Representative and others. As of the date hereof, the Company has paid $50,000 to the Representative. The Representative shall retain such part of the advance previously paid as shall equal its actual out-of-pocket expenses and refund the balance, if any. Additionally, if the Offering is not consummated because the Company has materially breached any of its obligations hereunder, then the Company shall reimburse the Representative in full for its out-of-pocket accountable expenses actually incurred through such date, including, without limitation, fees of counsel to the Representative (which legal fees shall not exceed $100,000).
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3.13. M&A Agreement. The Company and the Representative have entered into the M&A Agreement.
3.14. Application of Net Proceeds. The Company will apply the net proceeds from this Offering received by it in a manner substantially consistent with the application described under the caption “Use of Proceeds” in the Prospectus.
3.15. Delivery of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable, but not later than the first day of the sixteenth full calendar month following the Effective Date, an earnings statement (which need not be certified by independent public or independent certified public accountants unless required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Act) covering a period of at least twelve consecutive months beginning after the Effective Date.
3.16. Notice to FINRA.
3.16.1. Assistance with Business Combination. For a period of ninety days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a Business Combination candidate or to provide any similar Business Combination-related services, the Company will provide the following information (the “Business Combination Information”) to the Representative: (i) complete details of all services and copies of agreements governing such services (which details or agreements may be appropriately redacted to account for privilege or confidentiality concerns); and (ii) justification as to why the person or entity providing the Business Combination-related services should not be considered an “underwriter and related person” with respect to the Company’s initial public offering, as such term is defined in Rule 5110 of FINRA’s Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the proxy statement which the Company will file for purposes of soliciting shareholder approval for the Business Combination. Upon the Company’s delivery of the Business Combination Information to the Representative, the Company hereby expressly authorizes the Representative to provide such information directly to FINRA as a result of representations the Representative have made to FINRA in connection with the Offering.
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3.16.2. Broker/Dealer. In the event the Company intends to register as a broker/dealer, merge with or acquire a registered broker/dealer, or otherwise become a member of FINRA, it shall promptly notify FINRA.
3.17. Stabilization. Neither the Company, nor, to its knowledge, any of its employees, officers, directors or shareholders (without the consent of the Representative) has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of Common Stock.
3.18. Internal Controls. From and after the Closing Date, the Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.19. Accountants. For a period of five years from the Effective Date or until such earlier time upon which the Trust Account is required to be liquidated, the Company shall retain Marcum or other independent public accountants reasonably acceptable to the Representative.
3.20. Form 8-K’s. The Company has retained Marcum 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 Offering. Within four (4) Business Days of the Closing Date, the Company shall file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. If the Over-Allotment Option has not been exercised on the Effective Date, the Company will also file an amendment to the Form 8-K, or a new Form 8-K, to provide updated financial information of the Company to reflect the exercise and consummation of the Over-Allotment Option.
3.21. FINRA. Until the Option Closing Date, if any, the Company shall advise the Representative if it is aware that any 5% or greater shareholder of the Company becomes an affiliate or associated person of a FINRA member participating in the distribution of the Public Securities.
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3.22. Corporate Proceedings. All corporate proceedings and other legal matters necessary to carry out the provisions of this Agreement and the transactions contemplated hereby shall have been done to the reasonable satisfaction to counsel for the Underwriters.
3.23. Investment Company. The Company shall cause the proceeds of the Offering to be held in the Trust Account to be invested only as set forth in the Trust Agreement as in effect on the date hereof and disclosed in the Prospectus. The Company will otherwise conduct its business in a manner so that it will not become subject to the Investment Company Act. Furthermore, once the Company consummates a Business Combination, it will be engaged in a business other than that of investing, reinvesting, owning, holding or trading securities.
3.24. Press Releases. The Company agrees that it will not issue press releases or engage in any other publicity, without the Representative’s prior written consent (not to be unreasonably withheld), for a period of twenty-five (25) days after the Closing Date; provided that in no event shall the Company be prohibited from issuing any press release or engaging in any other publicity required by law.
3.25. Electronic Prospectus. The Company shall cause to be prepared and delivered to the Representative, at its expense, promptly, but in no event later than two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the shares of Common Stock for at least the period during which a Prospectus relating to the shares of Common Stock is required to be delivered under the Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to EDGAR, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the period when a prospectus relating to the shares of Common Stock is required to be delivered under the Act, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
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3.26. Future Financings. The Company agrees that neither it, nor any successor or subsidiary of the Company, will consummate any public or private equity or debt financing prior to or in connection with the consummation of a Business Combination, unless all investors in such financing expressly waive, in writing, any rights in or claims against the Trust Account.
3.27. NASDAQ Maintenance. Until the consummation of a Business Combination, the Company will use commercially reasonable efforts to maintain the listing by NASDAQ of the Common Stock.
3.28. Private Placement Proceeds. On the Closing Date, the Company shall cause to be deposited the proceeds from the sale of the Sponsor Shares in the Trust Account.
4. Conditions.
4.1. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Public Securities, as provided herein, shall be subject to the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of the Closing Date and the Option Closing Date, if any, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof and to the performance by the Company of its obligations hereunder and to the following conditions:
4.1.1. Regulatory Matters.
4.1.1.1. Effectiveness of Registration Statement. The Registration Statement shall have become effective not later than 5:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for the purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Graubard Miller (“GM”).
4.1.1.2. FINRA Clearance. By the Effective Date, the Representative shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.1.3. No Commission Stop Order. At the Closing Date, the Commission has not issued any order or threatened to issue any order preventing or suspending 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.
4.1.1.4. NASDAQ Listing. The Public Securities shall have been approved for listing on NASDAQ.
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4.1.2. Company Counsel Matters.
4.1.2.1. Opinion of Company Counsel. On each of the Closing Date or the Option Closing Date, if any, the Representative shall have received the favorable opinion of Broad and Cassel dated as of the Closing Date, addressed to the Representative as representative for the several Underwriters and in form attached hereto as Exhibit A.
4.1.2.2. Reliance. In rendering such opinion, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdiction having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to the Underwriters’ counsel if requested. The opinions of counsel for the Company and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Underwriters in its opinion delivered to the Underwriters.
4.1.3. Cold Comfort Letter. At the time this Agreement is executed, and at the Closing Date and Option Closing Date, if any, the Representative shall have received a letter, addressed to the Representative as representative for the several Underwriters and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to the Representative and to GM from Marcum dated, respectively, as of the date of this Agreement and as of the Closing Date and Option Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the Company within the meaning of the Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Registration Statement and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the published Regulations thereunder;
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(iii) Stating that, on the basis of a limited review which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the shareholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that: (a) the unaudited financial statements of the Company included in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations or are not fairly presented in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement, the Statutory Prospectus and the Prospectus; or (b) at a date immediately prior to the Effective Date or Closing Date, as the case may be, there was any change in the capital stock or long-term debt of the Company, or any decrease in the shareholders’ equity of the Company as compared with amounts shown in the February 28, 2013 balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any decrease, setting forth the amount of such decrease, and (c) during the period from February 28, 2013 to a specified date immediately prior to the Effective Date or Closing Date, as the case may be, there was any changes in revenues, net earnings (losses), or net earnings (losses) per share of Common Stock, in each case as compared with the Statement of Operations for the period from January 22, 2013 (inception) through February 28, 2013 included in the Registration Statement, or, if there was any such change, setting forth the amount of such change;
(iv) Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Registration Statement in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement; and
(v) Statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request.
4.1.4. Officers’ Certificates.
4.1.4.1. Officers’ Certificate. As of each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Chairman of the Board or President and the Secretary or Assistant Secretary of the Company (in their capacities as such), respectively, to the effect that the Company has performed all covenants and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date and that the conditions set forth in Section 4.1.5 hereof have been satisfied as of such date and that, as of Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are true and correct. In addition, the Representative will have received such other and further certificates of officers of the Company as the Representative may reasonably request.
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4.1.4.2. Secretary’s Certificate. As of each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Secretary or Assistant Secretary of the Company, respectively, certifying: (i) that the Amended and Restated Certificate of Incorporation and Bylaws of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; (iii) all correspondence between the Company or its counsel and the Commission; (iv) all correspondence between the Company or its counsel and NASDAQ; and (v) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.1.5. No Material Changes. Prior to each of the Closing Date and the Option Closing Date, if any: (i) there shall have been no material adverse change or development involving a material adverse change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Statutory Prospectus and Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Company Affiliate before or by any court or foreign, federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement, the Statutory Prospectus and Prospectus; (iii) no stop order shall have been issued under the Act against the Company and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Statutory Prospectus and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and shall conform in all material respects to the requirements of the Act and the Regulations, and none of the Registration Statement, the Statutory Prospectus or the Prospectus, or any amendment or supplement thereto shall contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Statutory Prospectus and Prospectus, in light of the circumstances under which they were made), not misleading.
4.1.6. Delivery of Agreements. On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the Registration Rights Agreement, the M&A Agreement and all of the Insider Letters. On the Closing Date, the Company shall have delivered to the Representative the Representative’s Purchase Option.
4.1.7. Sponsor Shares. On the Closing Date, the Insiders shall have purchased the Sponsor Shares and the purchase price for such Sponsor Shares shall be deposited into the Trust Account.
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5. Indemnification.
5.1. Indemnification of Underwriters.
5.1.1. General. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each of the Underwriters and each dealer selected by the Representative that participates in the offer and sale of the Public Securities (each a “Selected Dealer”) and each of their respective directors, officers, partners and employees and each person, if any, who controls any such Underwriter or Selected Dealer (“Controlling Person”) within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and its counsel, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriters and the Company or between any of the Underwriters and any third party or otherwise) to which they or any of them may become subject under the Act, the Exchange Act or any other foreign, federal, state or local statute, law, rule, regulation or ordinance or at common law or otherwise or under the laws, rules and regulation of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus, the Registration Statement, or the Prospectus (as from time to time each may be amended and supplemented); (ii) in any post-effective amendment or amendments or any new registration statement and prospectus relating to any of the Public Securities; or (iii) any application or other document or written communication (in this Section 5 collectively called “application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof or filed with the Commission, any foreign or state securities commission or agency, NASDAQ, the NYSE MKT LLC, the OTC Bulletin Board or any securities exchange (in each case other than statements contained in the section captioned “Selling Restrictions”); or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Company with respect to an Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement the Prospectus or any amendment or supplement thereof, or in any application, as the case may be, which furnished written information, it is expressly agreed, consists solely of the information described in clause (ii) of the last sentence of Section 2.3.1. With respect to any untrue statement or omission or alleged untrue statement or omission made in the Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter to the extent that any loss, liability, claim, damage or expense of such Underwriter results from the fact that a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Public Securities to such person as required by the Act and the Regulations, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under Section 3.4 hereof. The Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the issue and sale of the Public Securities or in connection with the Preliminary Prospectus, the Registration Statement or the Prospectus.
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5.1.2. Procedure. If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to Section 5.1.1, such Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter) and payment of actual expenses. Such Underwriter or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action; (ii) the Company shall not have employed counsel to have charge of the defense of such action; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter and/or controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if the Underwriter or controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
5.2. Indemnification of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers, and employees and agents who control the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and its counsel, against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to such Underwriter by or on behalf of the Underwriter expressly for use in such Registration Statement, Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or in any such application, which furnished written information, it is expressly agreed, consists solely of the information described in clause (ii) of the last sentence of Section 2.3.1. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2.
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5.3. Contribution.
5.3.1. Contribution Rights. In order to provide for just and equitable contribution under the Act in any case in which (i) any person entitled to indemnification under this Section 5 makes claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 5 provides for indemnification in such case, or (ii) contribution under the Act, the Exchange Act or otherwise may be required on the part of any such person in circumstances for which indemnification is provided under this Section 5 but is unavailable, then, and in each such case, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the initial offering price appearing thereon and the Company is responsible for the balance; provided, that, no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 5.3.1, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Public Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay in respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section, each director, officer and employee of an Underwriter or the Company, as applicable, and each person, if any, who controls an Underwriter or the Company, as applicable, within the meaning of Section 15 of the Act shall have the same rights to contribution as the Underwriters or the Company, as applicable.
5.3.2. Contribution Procedure. Within fifteen days after receipt by any party to this Agreement (or its representatives) of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (“contributing party”), notify the contributing party of the commencement thereof, but the omission to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representatives of the commencement thereof within the aforesaid fifteen days, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution without the written consent of such contributing party. The contribution provisions contained in this Section are intended to supersede, to the extent permitted by law, any right to contribution under the Act, the Exchange Act or otherwise available. The Underwriters’ obligations to contribute pursuant to this Section 5.3 are several and not joint.
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6. Default by an Underwriter.
6.1. Default Not Exceeding 10% of Firm Shares. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Shares and if the number of the Firm Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2. Default Exceeding 10% of Firm Shares. In the event that the default addressed in Section 6.1 above relates to more than 10% of the Firm Shares, the Representative may, in its discretion, arrange for it or for another party or parties to purchase such Firm Shares to which such default relates on the terms contained herein. If within one (1) Business Day after such default relating to more than 10% of the Firm Shares the Representative does not arrange for the purchase of such Firm Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Representative to purchase said Firm Shares on such terms. In the event that neither the Representative nor the Company arrange for the purchase of the Firm Shares to which a default relates as provided in this Section 6, this Agreement may be terminated by the Representative or the Company without liability on the part of the Company (except as provided in Sections 3.12 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to the Company for damages occasioned by its default hereunder.
6.3. Postponement of Closing Date. In the event that the Firm Shares to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement and/or the Prospectus, as the case may be, or in any other documents and arrangements, and the Company agrees to file promptly any amendment to, or to supplement, the Registration Statement and/or the Prospectus, as the case may be, that in the reasonable opinion of counsel for the Underwriters may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such securities.
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7. Additional Covenants.
7.1. Additional Shares or Options. Except as described in the Registration Statement, the Company hereby agrees that until the Company consummates a Business Combination, it shall not issue any shares of Common Stock or any options or other securities convertible into shares of Common Stock or any shares of preferred stock which participate in any manner in the Trust Account or which vote as a class with the shares of Common Stock on a Business Combination.
7.2. Trust Account Waiver Acknowledgments. The Company hereby agrees that, prior to commencing its due diligence investigation of any Target Business or obtaining the services of any vendor, it will use its best efforts to have such Target Business or vendor acknowledge in writing, whether through a letter of intent, memorandum of understanding, agreement in principle or other similar document (and subsequently acknowledges the same in any definitive document replacing any of the foregoing), that (a) it has read the Prospectus, and understands that the Company has established the Trust Account, initially in an amount of $55,176,000 for the benefit of the Public Stockholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event of the conversion of their shares upon consummation of a Business Combination, (ii) to the Public Stockholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination, and (b) for and in consideration of the Company (1) agreeing to evaluate such Target Business for purposes of consummating a Business Combination with it or (2) agreeing to engage the services of the vendor, as the case may be, such Target Business or vendor agrees that it does not have any right, title, interest or claim of any kind in or to any monies of the Trust Account (“Claim”) and waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The foregoing letters shall substantially be in the form attached hereto as Exhibit B and C, respectively.
7.3. Insider Letters. The Company shall not take any action or omit to take any action which would cause a breach of any of the Insider Letters executed between each Company Affiliate and the Representative and will not allow any amendments to, or waivers of, such Insider Letters without the prior written consent of the Representative.
7.4. Amended and Restated Certificate of Incorporation. 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.
7.5. Tender Offer, Proxy and Other Information. The Company shall provide the Representative with copies of all proxy or tender offer documentation and other information and all related material sent to Public Stockholders in connection with a Business Combination. In addition, the Company shall furnish any other state in which the Offering was registered, such information as may be requested by such state.
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7.6. Acquisition/Liquidation of Trust Account Procedure. The Company agrees that it will comply with its Amended and Restated Certificate of Incorporation in connection with the consummation of a Business Combination or the failure to consummate a Business Combination within 18 months from the Effective Date (the “Termination Date”).
7.7. Rule 419. The Company agrees that it will use its best efforts to prevent the Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business Combination, including, but not limited to, using its best efforts to prevent any of the Company’s outstanding securities from being deemed to be a “penny stock” as defined in Rule 3a-51-1 under the Exchange Act during such period.
7.8. Presentation of Potential Target Businesses. The Company shall cause each of the Company Affiliates to agree that, in order to minimize potential conflicts of interest which may arise from multiple affiliations, the Company Affiliates will present to the Company for its consideration, prior to presentation to any other person or company, any suitable opportunity to acquire an operating business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account, subject to any pre-existing fiduciary obligations the Company Affiliates might have.
7.9. Target Net Assets. The Company agrees that the Target Business that it acquires must have a fair market value equal to at least 80% of the balance in the Trust Account at the time of signing the definitive agreement for the Business Combination with such Target Business. The fair market value of such business must be determined by the Board of Directors of the Company based upon standards generally accepted by the financial community, such as actual and potential sales, earnings, cash flow and book value. If the Board of Directors of the Company is not able to independently determine that the target business meets such fair market value requirement, the Company will obtain an opinion from an unaffiliated, independent investment banking firm, or another independent entity that commonly renders valuation opinions on the type of Target Business the Company is seeking to acquire. The Company is not required to obtain such an opinion as to the fair market value if the Company’s Board of Directors independently determines that the Target Business does have sufficient fair market value.
8. Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements at the Closing Date or Option Closing Date, as applicable, and such representations, warranties and agreements of the Underwriters and Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter, the Company or any controlling person, and shall survive termination of this Agreement or the issuance and delivery of the Public Securities to the several Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the Closing Date, at which time the representations, warranties and agreements shall terminate and be of no further force and effect.
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9. Effective Date of This Agreement and Termination Thereof.
9.1. Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission.
9.2. Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date: (i) if any domestic or international event or act or occurrence has materially disrupted or, in the Representative’s sole opinion, will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange, the NYSE MKT LLC, NASDAQ or on the OTC Bulletin Board (or successor trading market) shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required on the OTC Bulletin Board or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s sole opinion, make it inadvisable to proceed with the delivery of the shares of Common Stock, or (vii) if any of the Company’s representations, warranties or covenants hereunder are breached, or (viii) if the Representative shall have become aware after the date hereof of a Material Adverse Effect on the Company, or such adverse material change in general market conditions, including, without limitation, as a result of terrorist activities after the date hereof, as in the Representative’s sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the shares of Common Stock or to enforce contracts made by the Underwriters for the sale of the shares of Common Stock.
9.3. Expenses. In the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms herein, the obligations of the Company to pay the out of pocket expenses related to the transactions contemplated herein shall be governed by Section 3.12 hereof.
9.4. Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way effected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
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10. Miscellaneous.
10.1. Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed by certified mail (with return receipt), delivered by hand or reputable overnight courier, delivered by facsimile transmission (with printed confirmation of receipt) and confirmed, or by electronic transmission via PDF and shall be deemed given when so mailed, delivered, or faxed or transmitted (or if mailed, five days after such mailing):
If to the Representative:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, NY 10016
Fax No.: (212) 661-4936
Attn: Steven Levine
Email: slevine@ebcap.com
With a copy (which shall not constitute notice) to:
Graubard Miller
405 Lexington Avenue
New York, New York 10174
Fax No.: (212) 818-8881
Attn: David Alan Miller, Esq.
Email: dmiller@graubard.com
If to the Company, to:
MedWorth Acquisition Corp.
801 Brickell Avenue
Suite 943
Miami, FL 33131
Fax No.:
Attn: Charles F. Fistel
Email: medworth1@gmail.com
With a copy (which shall not constitute notice) to:
Broad and Cassel
2 South Biscayne Boulevard, 21st Floor
Miami, Florida 33131
Attn: A. Jeffry Robinson, Esq.
Fax: (305) 373-9443
Email: jrobinson@broadandcassel.com
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10.2. Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
10.3. Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
10.4. Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
10.5. Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained.
10.6. Governing Law, Venue, etc. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws. The Company hereby agrees that any action, proceeding or claim against it arising out of, relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York of the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 10.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor.
10.7. Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by fax or email/.pdf transmission shall constitute valid and sufficient delivery thereof.
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10.8. Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
10.9. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters are acting solely as underwriters in connection with the offering of the Public Securities. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm's length basis and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders, creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the offering of the Public Securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions, and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Public Securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
[Signature Page Follows]
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If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
| Very Truly Yours, | ||
| MEDWORTH ACQUISITION CORP. | ||
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
Agreed to and accepted
as of the date first written above:
EARLYBIRDCAPITAL, INC., as Representative of the several Underwriters
| By: | /s/ Steven Levine | |
| Name: Steven Levine | ||
| Title: CEO |
[Signature Page to Underwriting Agreement, dated June 26, 2013]
SCHEDULE A
MEDWORTH ACQUISITION CORP.
6,600,000 Shares of Common Stock
| Underwriter | Number of Firm Shares to be Purchased | |||
| EarlyBirdCapital, Inc. | 4,600,000 | |||
| Aegis Capital Corp | 1,500,000 | |||
| Ladenburg Thalmann & Co. Inc. | 500,000 | |||
| TOTAL | 6,600,000 | |||
EXHIBIT A
Form of Legal Opinion
1. The Company has been duly organized and is validly existing as a corporation under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement. The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, except where the failure to qualify would not have a materially adverse effect upon the business of the Company.
2. The Company has the authorized and outstanding capital stock as set forth in the Registration Statement and the Prospectus; the authorized securities of the Company have been duly authorized; the outstanding securities of the Company have been duly authorized and validly issued and are fully paid and, except with respect to shares that may be forfeited by the holders in the event the Underwriters’ over-allotment option is not exercised in full as described in the Registration Statement and the Prospectus, non-assessable; the Securities, and each agreement filed as an exhibit to the Registration Statement, conform to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus in all material respects; the certificates for the Securities, assuming they are in the form filed with the Commission, are in due and proper form; the Securities to be sold by the Company pursuant to the Underwriting Agreement have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by the Underwriting Agreement; and no preemptive rights of holders of any security exist with respect to any of the Securities or the issue or sale thereof arising (i) by operation of law, (ii) under any contracts to which the Company is party of which we are aware, or (iii) under the Amended and Restated Certificate of Incorporation or Bylaws of the Company.
3. To our knowledge, except as described in or contemplated by the Registration Statement, the Statutory Prospectus and the Prospectus, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, to our knowledge no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Securities or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company.
4. The Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement has been issued and to our knowledge, no proceedings for that purpose have been instituted or threatened under the Act. Any required filing of the Prospectus, and any supplement thereto, pursuant to Rule 424(b) under the Act, has been made within the time period required by Rule 424(b).
5. The Registration Statement and Prospectus (except as to the financial statements, including the notes and schedules thereto, and the other financial data contained therein or omitted therefrom, as to which we express no opinion), as of the Effective Date and as of the Closing Date, comply as to form in all material respects with the Act and the applicable rules and regulations of the Commission thereunder.
6. The statements under the captions “Risk Factors,” “Proposed Business - Comparison to Offerings of Blank Check Companies Subject to Rule 419,” “Description of Securities” and “Material U.S. Federal Tax Considerations” in the Prospectus, and Item 14 of Part II in the Registration Statement, insofar as such statements constitute a summary of documents referred to therein or matters of law, fairly summarize in all material respects the information called for with respect to such documents and matters.
7. To our knowledge, there are no legal or governmental proceedings pending or threatened against the Company or its properties of a character required to be disclosed in the Registration Statement or the Prospectus by the Act.
8. The execution and delivery of the Transaction Documents by the Company, the issuance and sale of the Securities by the Company to the Underwriters, the performance by the Company of the Transaction Documents and the consummation by the Company of the transactions contemplated thereby (other than performance of the Company’s indemnification and contribution obligations thereunder, as to which we express no opinion) will not (A) conflict with or result in a breach of, or default under, any of the terms or provisions of any material indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which the Company may be bound and which is filed as an exhibit to the Registration Statement, (B) to our knowledge result in a violation of any judgment, order, writ or decree of any court, government or governmental agency or body having jurisdiction over the Company, or over any of its properties or operations that, in each case, is applicable to the Company, or (C) violate or conflict with or result in any contravention of, the Delaware General Corporation Law (the “DGCL”), or those laws, rules and applications of the State of Florida and those federal laws, rules and regulations of the United States of America, in each case that are, in our experience, normally applicable to transactions of the type contemplated by the Underwriting Agreement.
9. The Transaction Documents have been duly authorized, executed and delivered by the Company, and each of the Transaction Documents constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms.
10. No consent, approval, authorization or order of or qualification with any court, government or governmental or self regulatory agency or body having jurisdiction over the Company or over any of its properties or operations, is necessary in connection with the consummation by the Company of the transactions contemplated by the Underwriting Agreement, except (A) such as have been obtained under the Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (B) such as may be required by the NASDAQ Capital Market and (C) such as may be required by the Financial Industry Regulatory Authority.
11. 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 Prospectus will not be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.
12. Upon delivery and payment for the Firm Shares on the Closing Date and the filing of a Current Report on Form 8-K containing an audited balance sheet reflecting the receipt of proceeds from the sale of the Firm Shares, the Company will not be subject to Rule 419 under the Act and none of the Company’s outstanding securities will be deemed to be a “penny stock” as defined in Rule 3a-51-1 under the Exchange Act.
EXHIBIT B
Form of Target Business Letter
MedWorth Acquisition Corp.
801 Brickell Avenue
Suite 943
Miami, FL 33131
Attn: Charles F. Fistel
Gentlemen:
Reference is made to the Final Prospectus of MedWorth Acquisition Corp. (the “Company”), dated June 26, 2013 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account, initially in an amount of at least $55,176,000, for the benefit of the Public Stockholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event of the conversion of their shares upon consummation of a Business Combination, (ii) to the Public Stockholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of consummating a Business Combination with it, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever.
| Print Name of Target Business | |
| Authorized Signature of Target Business |
EXHIBIT C
Form of Vendor Letter
MedWorth Acquisition Corp.
801 Brickell Avenue
Suite 943
Miami, FL 33131
Attn: Charles F. Fistel
Gentlemen:
Reference is made to the Final Prospectus of MedWorth Acquisition Corp. (the “Company”), dated June 26, 2013 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account, initially in an amount of at least $55,176,000, for the benefit of the Public Stockholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event of the conversion of their shares upon consummation of a Business Combination, (ii) to the Public Stockholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination.
For and in consideration of the Company agreeing to use the services of the undersigned, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and will not seek recourse against the Trust Account for any reason whatsoever.
| Print Name of Vendor | |
| Authorized Signature of Vendor |
Exhibit 1.2
EARLYBIRDCAPITAL, INC.
275 Madison Avenue
New York, New York 10016
| June 26, 2013 |
MedWorth Acquisition Corp.
801 Brickell Avenue
Suite 943
Miami, Florida 33131
Gentlemen:
This is to confirm our agreement whereby MedWorth Acquisition Corp. (“Company”) has requested EarlyBirdCapital, Inc. (the “Financial Advisor”) to assist it in connection with the Company seeking to enter into a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination as described in the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission (“Registration Statement”) in connection with its initial public offering (in each case, a “Business Combination”) with one or more businesses or entities (each a “Target”):
| 1. | Agreement Regarding Transactions |
(a) The Financial Advisor will advise and assist the Company in analyzing potential Targets with which the Company may consummate a Business Combination as well as structuring the terms of the Business Combination and negotiating the terms of the letter of intent and/or definitive agreement relating to such Business Combination (but, except for the limited circumstances set forth in Section 7(b) hereof, not for purposes of finding and/or locating potential Targets for its Business Combination which would be the subject of a separate agreement between the Company and the Financial Advisor). If requested by the Company, the Financial Advisor will participate directly in negotiations, review marketing plans and projections of the Target, analyze and advise on the financial implications of the transaction, arrange meetings with and prepare materials for investors and prepare and make presentations to the Company’s Board of Directors. For the avoidance of doubt, the Company understands that the Financial Advisor is not required to provide a fairness opinion to the Board of Directors with regard to such Business Combination.
(b) As compensation for the foregoing engagement, the Company will pay the Financial Advisor a cash fee equal to $1,848,000 (“Fee”). The Fee payable hereunder is due and payable to the Financial Advisor by wire transfer directly from the Company’s trust account at the closing of the Business Combination (“Closing”). If a proposed Business Combination is not consummated for any reason, no Fee shall be due or payable to the Financial Advisor hereunder. Unless otherwise agreed to by the Financial Advisor in writing, (a) the Fee shall be paid directly from the proceeds held in the Company’s trust account established in connection with its initial public offering and (b) the Company shall instruct the trustee overseeing such trust account to deliver the Fee to the Financial Advisor simultaneously with the release of the funds from such trust account.
| 2. | Expenses |
The Company shall reimburse the Financial Advisor for all reasonable costs and expenses incurred by the Financial Advisor (including reasonable fees and disbursements of counsel) directly in connection with the performance of its services hereunder within 10 business days upon presentation of an invoice or the Closing, whichever is earlier; provided, however, all expenses in excess of $5,000 in the aggregate shall be subject to the Company’s prior written approval, which approval shall not be unreasonably withheld.
3. Company Cooperation.
The Company will provide full cooperation to the Financial Advisor as may be necessary for the efficient performance by the Financial Advisor of its obligations hereunder, including, but not limited to, providing to the Financial Advisor and its counsel, on a timely basis, all documents and information regarding the Company and Target that the Financial Advisor may reasonably request or that are otherwise relevant to the Financial Advisor’s performance of its obligations hereunder (collectively, the “Information”); making the Company’s management, auditors, suppliers, customers, consultants and advisors available to the Financial Advisor; and, using commercially reasonable efforts to provide the Financial Advisor with reasonable access to the management, auditors, suppliers, customers, consultants and advisors of Target. The Company will promptly notify the Financial Advisor of any change in facts or circumstances or new developments affecting the Company or Target or that might reasonably be considered material to the Financial Advisor’s engagement hereunder.
4. Indemnity. The Company shall indemnify the Financial Advisor and its affiliates and directors, officers, employees, shareholders, representatives and agents in accordance with the indemnification provisions set forth in Annex I hereto, all of which are incorporated herein by reference.
5. Use of Name and Reports
Use of the Financial Advisor’s name in annual reports or any other reports of the Company or press releases issued by the Company shall require the prior written approval of the Financial Advisor, which shall not be unreasonably withheld. Without the Financial Advisor’s prior written consent, neither the Company nor any of its affiliates (nor any director, officer, manager, partner, member, employee or agent thereof) shall quote or refer to (i) the Financial Advisor’s names or (ii) any advice rendered by the Financial Advisor to the Company or any communication from the Financial Advisor in connection with performance of their services hereunder, except as required by applicable federal or state law, regulation or securities exchange rule.
6. Status as Independent Contractor
The Financial Advisor shall perform its services as an independent contractor and not as an employee of the Company or affiliate thereof. It is expressly understood and agreed to by the parties that the Financial Advisor, and any individual or entity that the Financial Advisor shall employ in order to perform its services hereunder, shall have no authority to act for, represent or bind the Company or any affiliate thereof in any manner, except as may be expressly agreed to by the Company in writing from time to time. In rendering such services, the Financial Advisor will be acting solely pursuant to a contractual relationship on an arm’s-length basis. This Agreement is not intended to create a fiduciary relationship between the parties hereto; and neither the Financial Advisor nor any of the Financial Advisor’s officers, directors or personnel will owe any fiduciary duty to the Company or any other person in connection with any of the matters contemplated by this Agreement.
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7. Potential Conflicts.
(a) The Company acknowledges that the Financial Advisor is a full-service securities firm engaged in securities trading and brokerage activities and providing investment banking and financial advisory services from which conflicting interests may arise. In the ordinary course of business, the Financial Advisor and its affiliates may at any time hold long or short positions, and may trade or otherwise effect transactions, for their own account or the accounts of customers, in debt or equity securities of the Company, its affiliates or other entities that may be involved in the transactions contemplated hereby. Except as set forth in Section 7(b), nothing in this Agreement shall be construed to limit or restrict the Financial Advisor or any of its affiliates in conducting such business with respect to others, or in rendering such advice to others.
(b) The Financial Advisor agrees that until nine months after the closing of the Company’s initial public offering as contemplated by the Registration Statement, it will not file a registration statement for an initial public offering for a company seeking to consummate a Business Combination with a company in the business of dispensing prescription drugs or the business of buying or selling prescription drugs as a wholesaler or distributor in the United States (“Business”) where the Financial Advisor is participating in such offering in any role other than as a selling group member. Additionally, during such period, if the Financial Advisor should be approached by a person or entity (or their representative) engaged in the Business that could be considered a potential Target for the Company (each a “Referral Target”), the Financial Advisor shall notify the Company of such Referral Target (if permitted to do so by the Referral Target) and, at the Company’s election, arrange an introduction to such Referral Target; provided that the Financial Advisor’s obligation to make such referral or introduction shall be subject to the Company and the Financial Advisor mutually agreeing on a fee for such referral or introduction. If, following the introduction or referral by the Financial Advisor to the Company of such Referral Target, the Company or the Referral Target notifies the Financial Advisor that it is not proceeding with a potential transaction with the other party, the Financial Advisor shall have the right to refer such Referral Target to another entity for its consideration.
8. Entire Agreement
This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereto. This Agreement may not be modified or terminated orally or in any manner other than by an agreement in writing signed by the parties hereto.
9. Notices
Any notices required or permitted to be given hereunder shall be in writing and shall be deemed given when mailed by certified mail or private courier service, return receipt requested, addressed to each party at its respective addresses set forth above, or such other address as may be given by a party in a notice given pursuant to this Section.
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10. Successors and Assigns
This Agreement may not be assigned by either party without the written consent of the other. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and, except where prohibited, to their successors and assigns.
11. Non-Exclusivity
Nothing herein shall be deemed to restrict or prohibit the engagement by the Company of other consultants providing the same or similar services or the payment by the Company of fees to such parties. The Company’s engagement of any other consultant(s) shall not affect the Financial Advisor’s right to receive fees and reimbursement of expenses pursuant to this Agreement.
12. Applicable Law; Venue
This Agreement shall be construed and enforced in accordance with the laws of the State of New York without giving effect to conflict of laws.
In the event of any dispute under this Agreement, then and in such event, each party hereto agrees that the dispute shall either be (i) submitted to the American Arbitration Association (“Association”) in New York County, New York, for its decision and determination in accordance with its rules and regulations then in effect or (ii) brought and enforced in the courts of the State of New York, County of New York, or the United States District Court for the Southern District of New York, in each event at the discretion of the party initiating the dispute. Once a party files a dispute with one of the above forums, the parties agree that all issues regarding such dispute or this Agreement must be resolved before such forum rather than seeking to resolve it through another alternative forum set forth above.
In the event the dispute is brought before the Association, each of the parties agrees that the decision and/or award made by the arbitrators shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought.
In the event the dispute is brought by a party in the courts of the State of New York or the United States District Court for the Southern District of New York, each party irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each party hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon a party may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth at the beginning of this Agreement. Such mailing shall be deemed personal service and shall be legal and binding upon the party being served in any action, proceeding or claim. The parties agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor.
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If the foregoing correctly sets forth the understanding between the Financial Advisor and the Company with respect to the foregoing, please so indicate your agreement by signing in the place provided below, at which time this letter shall become a binding contract.
| EARLYBIRDCAPITAL, INC. | ||
| By: | /s/ Steven Levine | |
| Name: Steven Levine | ||
| Title: CEO | ||
| AGREED AND ACCEPTED BY: | ||
| MEDWORTH ACQUISITION CORP. | ||
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
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ANNEX I
Indemnification
In connection with the Company’s engagement of EarlyBirdCapital, Inc. (the “Financial Advisor”) pursuant to that certain letter agreement of which this Annex forms a part, MedWorth Acquisition Corp. (the “Company”) hereby agrees to indemnify and hold harmless the Financial Advisor and its affiliates and its respective directors, officers, shareholders, agents and employees of any of the foregoing (collectively the “Indemnified Persons”), from and against any and all claims, actions, suits, proceedings (including those of shareholders), damages, liabilities and expenses incurred by any of them (including the reasonable fees and expenses of counsel), as incurred, (collectively a “Claim”), that (A) are related to or arise out of (i) any actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company, or (ii) any actions taken or omitted to be taken by any Indemnified Person in connection with the Company’s engagement of the Financial Advisor, or (B) otherwise relate to or arise out of the Financial Advisor’s activities on the Company’s behalf under the Financial Advisor’s engagement, and the Company shall reimburse any Indemnified Person for all expenses (including the reasonable fees and expenses of counsel) as incurred by such Indemnified Person in connection with investigating, preparing or defending any such claim, action, suit or proceeding, whether or not in connection with pending or threatened litigation in which any Indemnified Person is a party. The Company will not, however, be responsible for any Claim that is finally judicially determined to have resulted from the gross negligence or willful misconduct of any person seeking indemnification for such Claim. The Company further agrees that no Indemnified Person shall have any liability to the Company for or in connection with the Company’s engagement of the Financial Advisor except for any Claim incurred by the Company as a result of such Indemnified Person’s gross negligence or willful misconduct.
The Company further agrees that it will not, without the prior written consent of the Financial Advisor, settle, compromise or consent to the entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable release of each Indemnified Person from any and all liability arising out of such Claim.
Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects or is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment of counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses of such counsel. In the event, however, that legal counsel to such Indemnified Person reasonably determines that having common counsel would present such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or other Indemnified Persons different from or in addition to those available to the Company, then such Indemnified Person may employ its own separate counsel to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified Party shall have the right, but not the obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. In addition, with respect to any Claim in which the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel therefor at his, her or its own expense.
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The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason then (whether or not the Financial Advisor is an Indemnified Person), the Company and the Financial Advisor shall contribute to the Claim for which such indemnity is held unavailable in such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and the Financial Advisor on the other, in connection with the Financial Advisor’s engagement referred to above, subject to the limitation that in no event shall the amount of the Financial Advisor’s contribution to such Claim exceed the amount of fees actually received by the Financial Advisor from the Company pursuant to the Financial Advisor’s engagement. The Company hereby agrees that the relative benefits to the Company, on the one hand, and the Financial Advisor on the other, with respect to the Financial Advisor’s engagement shall be deemed to be in the same proportion as (a) the total value paid or proposed to be paid or received by the Company or its stockholders as the case may be, pursuant to the transaction (whether or not consummated) for which the Financial Advisor is engaged to render services bears to (b) the fee paid or proposed to be paid to the Financial Advisor’s in connection with such engagement.
The Company’s indemnity, reimbursement and contribution obligations under this Agreement (a) shall be in addition to, and shall in no way limit or otherwise adversely affect any rights that any Indemnified Party may have at law or at equity and (b) shall be effective whether or not the Company is at fault in any way.
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MEDWORTH ACQUISITION CORP.
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Pursuant to Section 245 of the
Delaware General Corporation Law
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MEDWORTH ACQUISITION CORP., a corporation existing under the laws of the State of Delaware (the “Corporation”), by its Chief Executive Officer, hereby certifies as follows:
1. The name of the Corporation is “MedWorth Acquisition Corp.”
2. The Corporation’s Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on January 22, 2013.
3. This Amended and Restated Certificate of Incorporation restates, integrates and amends the Certificate of Incorporation of the Corporation.
4. This Amended and Restated Certificate of Incorporation was duly adopted by joint written consent of the directors and stockholders of the Corporation in accordance with the applicable provisions of Sections 141(f), 228, 242 and 245 of the General Corporation Law of the State of Delaware (“GCL”).
5. The text of the Certificate of Incorporation of the Corporation is hereby amended and restated to read in full as follows:
FIRST: The name of the corporation is MedWorth Acquisition Corp. (hereinafter sometimes referred to as the “Corporation”).
SECOND: The registered office of the Corporation is to be located at Suite 101, 160 Greentree Drive, City of Dover, County of Kent, Delaware 19904. The name of its registered agent at such address is National Registered Agents, Inc. .
THIRD: The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the GCL.
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FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 105,000,000, of which 100,000,000 shares shall be Common Stock of the par value of $.0001 per share and 5,000,000 shares shall be Preferred Stock of the par value of $.0001 per share.
A. Preferred Stock. The Board of Directors is expressly granted authority to issue shares of the Preferred Stock, in one or more series, and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issue of such series (a “Preferred Stock Designation”) and as may be permitted by the GCL. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
B. Common Stock. Except as otherwise required by law or as otherwise provided in any Preferred Stock Designation, the holders of the Common Stock shall exclusively possess all voting power and each share of Common Stock shall have one vote.
FIFTH: The introduction and the following provisions (A) through (G) of this Article Fifth shall apply during the period commencing upon the filing of this Amended and Restated Certificate of Incorporation and terminating upon the consummation of any “Business Combination,” and may be amended during the “Target Business Acquisition Period” only by the affirmative vote of the holders of at least sixty-five percent (65%) of all then outstanding shares of Common Stock of the Corporation. If the Corporation seeks to amend such provisions, the Corporation will provide holders of the shares sold in the initial public offering (the “IPO”) of the Corporation (the “IPO Shares”) who do not vote in favor of such amendment the opportunity to convert their IPO Shares for the Conversion Price (as defined below) in connection with any such vote. A “Business Combination” shall mean any merger, capital stock exchange, asset purchase, stock purchase, reorganization or other similar business combination involving the Corporation and one or more businesses or entities (“Target Business”). The “Target Business Acquisition Period” shall mean the period from the effectiveness of the registration statement on Form S-1 (“Registration Statement”) filed with the Securities and Exchange Commission (“Commission”) in connection with the IPO up to and including the first to occur of (a) a Business Combination or (b) December 26, 2014 (the “Termination Date”).
A. Prior to the consummation of any Business Combination, the Corporation shall submit such Business Combination to its stockholders for approval (a “Proxy Solicitation”) pursuant to the proxy rules promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”).
B. The Corporation will consummate such Business Combination only if a majority of the outstanding shares of Common Stock present and entitled to vote at the meeting to approve the Business Combination are voted for the approval of such Business Combination.
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C. In the event that a Business Combination is approved in accordance with the above paragraph (B) and is consummated by the Corporation, any holder of IPO Shares who voted on the proposal to approve such Business Combination, whether such holder voted in favor or against such Business Combination, may, contemporaneously with such vote, demand that the Corporation convert his IPO Shares into cash. If so demanded, the Corporation shall, promptly after consummation of the Business Combination, convert such shares into cash at a per share price equal to the quotient determined by dividing (i) the amount held in the Trust Fund (as defined below) less any income taxes owed on such funds but not yet paid, calculated as of two business days prior to the consummation of the Business Combination, by (ii) the total number of IPO Shares then outstanding (such price being referred to as the “Conversion Price”). Notwithstanding the foregoing, a holder of IPO Shares, together with any affiliate of his or any other person with whom he is acting in concert or as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) (“Group”), will be restricted from demanding conversion with respect to 25% or more of the IPO Shares. Accordingly, all IPO Shares beneficially owned by such holder or any other person with whom such holder is acting in concert or as a Group in excess of 25% of the IPO Shares will remain outstanding following consummation of such Business Combination in the name of the stockholder and not be converted. “Trust Fund” shall mean the trust account established by the Corporation at the consummation of its IPO and into which the net proceeds of the IPO is deposited, all as described in the Registration Statement.
D. The Corporation will not consummate any Business Combination unless it has net tangible assets of at least $5,000,001 upon consummation of such Business Combination.
E. In the event that the Corporation does not consummate a Business Combination by the Termination Date, the Corporation shall (i) cease all operations except for the purposes of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem 100% of the IPO Shares for cash for a redemption price per share equal to the amount then held in the Trust Account, including the interest earned thereon, less taxes payable, divided by the total number of IPO Shares then outstanding (which redemption will completely extinguish the rights of all of the holders of the IPO Shares as stockholders, including the right to receive further liquidation distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to approval of the Corporation’s then stockholders and subject to the requirements of the GCL, including the adoption of a resolution by the Board pursuant to Section 275(a) of the GCL finding the dissolution of the Corporation advisable and the provision of such notices as are required by said Section 275(a) of the GCL, dissolve and liquidate the balance of the Corporation’s net assets to its remaining stockholders, as part of the Corporation’s plan of dissolution and liquidation, subject in each case to the Corporation’s obligations under the GCL to provide for claims of creditors and other requirements of applicable law.
F.. A holder of IPO Shares shall only be entitled to receive distributions from the Trust Fund in the event (i) he demands conversion of his shares in accordance with paragraph C above in connection with any Proxy Solicitation, or (ii) the Corporation has not consummated a Business Combination by the Termination Date. In no other circumstances shall a holder of IPO Shares have any right or interest of any kind in or to the Trust Fund.
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G. Subsequent to the closing of the IPO and prior to a Business Combination, (1) the Board of Directors may not issue (i) any shares of Common Stock or any securities convertible into Common Stock; or (ii) any securities which participate in or are otherwise entitled in any manner to any of the proceeds in the Trust Fund or which vote as a class with the Common Stock on a Business Combination and (2) the Corporation may not consummate any other business combination, merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar transaction.
H. The Board of Directors shall be divided into three classes: Class A, Class B and Class C. The number of directors in each class shall be as nearly equal as possible. At the first election of directors by the incorporator, the incorporator shall elect at least one director for each of the classes. The directors in Class A shall be elected for a term expiring at the first Annual Meeting of Stockholders, the directors in Class B shall be elected for a term expiring at the second Annual Meeting of Stockholders and the directors in Class C shall be elected for a term expiring at the third Annual Meeting of Stockholders. Commencing at the first Annual Meeting of Stockholders, and at each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Except as the GCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s Bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.
SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A. Election of directors need not be by ballot unless the by-laws of the Corporation so provide.
B. The Board of Directors shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to or repeal the by-laws of the Corporation as provided in the by-laws of the Corporation.
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C. The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interests, or for any other reason.
D. In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Amended and Restated Certificate of Incorporation, and to any by-laws from time to time made by the stockholders; provided, however, that no by-law so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.
SEVENTH: A. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the GCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended. Any repeal or modification of this paragraph A by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to events occurring prior to the time of such repeal or modification.
B. The Corporation, to the fullest extent permitted by Section 145 of the GCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized hereby.
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EIGHTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing seventy-five percent (75%) in value of the creditors or class of creditors, and/or representing seventy-five percent (75%) of the shares of stock held by the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by Charles F. Fistel, its Chief Executive Officer, as of the 25th day of June, 2013.
| /s/ Charles F. Fistel | |
| Charles F. Fistel, Chief Executive Officer |
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Exhibit 10.1
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 13 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) To the extent that the Underwriters do not exercise their over-allotment option to purchase an additional 990,000 shares of Common Stock (as described in the Prospectus), the undersigned agrees to return to the Company for cancellation, at no cost, a number of Founders’ Shares held by the undersigned as determined in accordance with the Escrow Agreement.
(c) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement and the Subscription Agreement.
(d) The undersigned acknowledges and agrees that the Sponsors’ Shares are subject to restrictions on transfer as set forth in the Subscription Agreement.
4. (a) In the event of the distribution of the Trust Account upon the Company’s failure to complete a Business Combination within the Time Period, each of Charles F. Fistel, Stephen B. Cichy and Anthony Minnuto jointly and severally agree (for purposes of this paragraph 4, such individuals shall be referred to as the “Indemnitors”) to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has entered into discussions relating to a proposed Business Combination (a “Target”); provided, however, that such indemnification of the Company by the Indemnitors shall apply only to the extent necessary to ensure that such claims by a Target or by a third party for services rendered or products sold to the Company do not reduce the amount of funds in the Trust Account to below $8.36 per Share of Common Stock sold in the Offering (the “Offering Shares”); and provided, further, that only if such third party or Target has not executed an agreement waiving claims against and all rights to seek access to the Trust Account whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by the Indemnitors shall not apply as to any claims against the Company by the Underwriters. The Indemnitors shall have the right to defend against any such claim with counsel of their choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitors, the Indemnitors notifies the Company in writing that the Indemnitors shall undertake such defense. The Indemnitors shall not settle such claim without the consent of the Company.
(b) In the event of the liquidation of the Company, the Indemnitors further agree to advance the Company the funds necessary to complete the Company’s liquidation to the extent that the Company does not have sufficient funds to complete such liquidation outside of the principal amount held in the Trust Account (but including the interest or other income earned on the principal in the Trust Account, which shall be available to pay for the costs of liquidation and dissolution of the Company). The Indemnitors agrees not to seek repayment of such expenses from the Company or its Public Stockholders.
5. (a) The undersigned agrees to be the Chairman of the Board of Directors and the Secretary of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 634,250 shares of Common Stock (which amount shall be increased proportionately to up to 713,450 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | |
| By: | /s/ Anthony Minnuto |
| Anthony Minnuto | |
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.2
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 13 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) To the extent that the Underwriters do not exercise their over-allotment option to purchase an additional 990,000 shares of Common Stock (as described in the Prospectus), the undersigned agrees to return to the Company for cancellation, at no cost, a number of Founders’ Shares held by the undersigned as determined in accordance with the Escrow Agreement.
(c) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement and the Subscription Agreement.
(d) The undersigned acknowledges and agrees that the Sponsors’ Shares are subject to restrictions on transfer as set forth in the Subscription Agreement.
4. (a) In the event of the distribution of the Trust Account upon the Company’s failure to complete a Business Combination within the Time Period, each of Charles F. Fistel, Stephen B. Cichy and Anthony Minnuto jointly and severally agree (for purposes of this paragraph 4, such individuals shall be referred to as the “Indemnitors”) to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has entered into discussions relating to a proposed Business Combination (a “Target”); provided, however, that such indemnification of the Company by the Indemnitors shall apply only to the extent necessary to ensure that such claims by a Target or by a third party for services rendered or products sold to the Company do not reduce the amount of funds in the Trust Account to below $8.36 per Share of Common Stock sold in the Offering (the “Offering Shares”); and provided, further, that only if such third party or Target has not executed an agreement waiving claims against and all rights to seek access to the Trust Account whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by the Indemnitors shall not apply as to any claims against the Company by the Underwriters. The Indemnitors shall have the right to defend against any such claim with counsel of their choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitors, the Indemnitors notifies the Company in writing that the Indemnitors shall undertake such defense. The Indemnitors shall not settle such claim without the consent of the Company.
(b) In the event of the liquidation of the Company, the Indemnitors further agree to advance the Company the funds necessary to complete the Company’s liquidation to the extent that the Company does not have sufficient funds to complete such liquidation outside of the principal amount held in the Trust Account (but including the interest or other income earned on the principal in the Trust Account, which shall be available to pay for the costs of liquidation and dissolution of the Company). The Indemnitors agrees not to seek repayment of such expenses from the Company or its Public Stockholders.
5. (a) The undersigned agrees to be a director and the Chief Executive Officer, Chief Financial Officer and Treasurer of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 634,250 shares of Common Stock (which amount shall be increased proportionately to up to 713,450 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | |
| By: | /s/ Charles F. Fistel |
| Charles F. Fistel | |
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Stephen B. Cichy |
| Stephen B. Cichy, President and Chief Operating Officer |
[Signature Page to Insider Letter]
Exhibit 10.3
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 13 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) To the extent that the Underwriters do not exercise their over-allotment option to purchase an additional 990,000 shares of Common Stock (as described in the Prospectus), the undersigned agrees to return to the Company for cancellation, at no cost, a number of Founders’ Shares held by the undersigned as determined in accordance with the Escrow Agreement.
(c) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement and the Subscription Agreement.
(d) The undersigned acknowledges and agrees that the Sponsors’ Shares are subject to restrictions on transfer as set forth in the Subscription Agreement.
4. (a) In the event of the distribution of the Trust Account upon the Company’s failure to complete a Business Combination within the Time Period, each of Charles F. Fistel, Stephen B. Cichy and Anthony Minnuto jointly and severally agree (for purposes of this paragraph 4, such individuals shall be referred to as the “Indemnitors”) to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has entered into discussions relating to a proposed Business Combination (a “Target”); provided, however, that such indemnification of the Company by the Indemnitors shall apply only to the extent necessary to ensure that such claims by a Target or by a third party for services rendered or products sold to the Company do not reduce the amount of funds in the Trust Account to below $8.36 per Share of Common Stock sold in the Offering (the “Offering Shares”); and provided, further, that only if such third party or Target has not executed an agreement waiving claims against and all rights to seek access to the Trust Account whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by the Indemnitors shall not apply as to any claims against the Company by the Underwriters. The Indemnitors shall have the right to defend against any such claim with counsel of their choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitors, the Indemnitors notifies the Company in writing that the Indemnitors shall undertake such defense. The Indemnitors shall not settle such claim without the consent of the Company.
(b) In the event of the liquidation of the Company, the Indemnitors further agree to advance the Company the funds necessary to complete the Company’s liquidation to the extent that the Company does not have sufficient funds to complete such liquidation outside of the principal amount held in the Trust Account (but including the interest or other income earned on the principal in the Trust Account, which shall be available to pay for the costs of liquidation and dissolution of the Company). The Indemnitors agrees not to seek repayment of such expenses from the Company or its Public Stockholders.
5. (a) The undersigned agrees to be a director and the President and Chief Operating Officer of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 586,250 shares of Common Stock (which amount shall be increased proportionately to up to 658,250 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | |
| By: | /s/ Stephen B. Cichy |
| Stephen B. Cichy | |
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.4
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
Re: Initial Public Offering
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 12 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement.
4. [INTENTIONALLY OMITTED]
5. (a) The undersigned agrees to be a director of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 586,250 shares of Common Stock (which amount shall be increased proportionately to up to 658,250 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | ||
| By: | /s/ John J. Delucca | |
| John J. Delucca | ||
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel | |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.5
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 12 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement.
4. [INTENTIONALLY OMITTED]
5. (a) The undersigned agrees to be director of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 586,250 shares of Common Stock (which amount shall be increased proportionately to up to 658,250 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | |
| By: | /s/ Jeffrey A. Rein |
| Jeffrey A. Rein | |
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.6
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
Re: Initial Public Offering
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 12 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement.
4. [INTENTIONALLY OMITTED]
5. (a) The undersigned agrees to be a director of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares of Common Stock issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 586,250 shares of Common Stock (which amount shall be increased proportionately to up to 658,250 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | ||
| By: | /s/ Robert G. Savage | |
| Robert G. Savage | ||
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel | |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.7
June 26, 2013
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
(as representative of the underwriters)
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a blank check company formed under the laws of the State of Delaware (the “Company”), and EarlyBirdCapital, Inc., as representative of the underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 6,600,000 shares (or up to 7,590,000 Shares if the entire over-allotment option is exercised) (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). The Shares will be sold in the Offering pursuant to a registration statement on Form S-1 and related prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”) and shall be listed on the Nasdaq Capital Market. Certain capitalized terms used herein and not otherwise defined are defined in paragraph 12 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. The undersigned agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the undersigned shall vote all shares of Common Stock held by the undersigned in favor of such proposed Business Combination.
2. The undersigned hereby agrees that in the event that the Company fails to consummate a Business Combination within 18 months from the date of the Prospectus (such time period being referred to herein as the “Time Period”), the undersigned shall take all reasonable steps to cause the Company as promptly as possible but no more than 10 business days after the expiration of the Time Period to redeem 100% of the shares of Common Stock sold by the Company in the Offering (including shares of Common Stock sold pursuant to the over-allotment option) for a pro rata portion of the funds held in the Trust Account (excluding any accrued interest, which shall be distributed to the Company to pay creditors and the costs of the liquidation and dissolution of the Company) and then seek to dissolve and liquidate. The undersigned hereby agrees not to take any action to cause or permit the Company to extend such time period.
3. (a) The undersigned acknowledges that the undersigned has waived and has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to any Founders’ Shares or Sponsors’ Shares held by the undersigned; provided, however, that in the event there shall be funds held outside of the Trust Account remaining after payment of all fees and expenses, such excess shall be distributed to the holders of the Founders’ Shares. The undersigned hereby further waives, with respect to any Common Stock held by the undersigned, any conversion rights the undersigned may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of any stockholder vote to amend the Company’s amended and restated certificate of incorporation (although the undersigned shall be entitled to liquidation rights with respect to any shares of Common Stock (other than Founders’ Shares and Sponsors’ Shares) the undersigned holds if the Company fails to consummate a Business Combination within the Time Period).
(b) The undersigned acknowledges and agrees that the Founders’ Shares are subject to restrictions on transfer as set forth in the Escrow Agreement.
4. [INTENTIONALLY OMITTED]
5. (a) The undersigned agrees to be a director of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
(b) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, he or she shall present to the Company for its consideration, prior to presentation to any other entity, any suitable business opportunity, subject to any pre-existing fiduciary or contractual obligations he or she might have.
(c) The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company, until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed to complete an initial Business Combination within the Time Period.
(d) The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the event of a breach by the undersigned of his or her obligations under paragraphs 5(a), 5(b) and/or 5(c) hereof, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach, subject to determination by a court in a final judgment.
6. The undersigned’s biographical information, if any, previously furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to the undersigned’s biography. The undersigned’s questionnaires, if any, previously furnished to the Company are true and accurate in all material respects. The undersigned represents and warrants that:
(a) no petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal agent or similar officer appointed by a court for, the business or property of the undersigned, or any partnership in which the undersigned was or is a general partner at or within two years prior to the date hereof, or any corporation or business association of which the undersigned was an executive officer at or within two years prior to the date hereof;
(b) the undersigned is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(c) the undersigned has never been convicted of, or pleaded guilty to, any crime nor is the undersigned currently a named subject of a pending criminal proceeding, in both cases excluding traffic violations and other similar minor offenses); and
(d) the undersigned has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
7. Except as disclosed in the Prospectus, neither the Sponsors nor any affiliate of the Sponsors, has received or shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment at the closing of this Offering of an aggregate $170,000 non-interest bearing loan made to the Company by Charles F. Fistel and Anthony Minnuto; and
(b) reimbursement of out-of-pocket expenses incurred by the Sponsors or their affiliates in connection with certain activities on the Company’s behalf, such as identifying and investigating possible business targets and Business Combinations.
8. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
9. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about the undersigned’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor their agents shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
10. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with any company with which the undersigned or any of the undersigned’s affiliates has had any discussions, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination with the Company.
11. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination with an entity that is affiliated with any of the Company’s officers, directors or Sponsors unless the Company obtains (i) an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority, Inc. or another independent entity regularly engaged to provide such opinions that the business combination is fair to the Company’s Public Stockholders from a financial point of view and (ii) the approval of a majority of the disinterested independent directors of the Company.
12. The undersigned has full right and power, without violating any agreement to which the undersigned is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
13. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or similar business combination, involving the Company and one or more businesses or entities; (ii) a “Sponsor” individually and the “Sponsors” collectively shall mean Charles F. Fistel, Stephen B. Cichy, Anthony Minnuto, John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D.; (iii) “Founders’ Shares” shall mean the 1,725,000 shares of Common Stock of the Company acquired by the Sponsors for an aggregate purchase price of $25,000, or approximately $0.015 per share of Common Stock, prior to the consummation of the Offering plus the 172,500 shares issued to the Sponsors as a dividend; (iv) “Public Stockholders” shall mean the holders of Common Stock issued in the Offering; (v) “Sponsors’ Shares” shall mean the 586,250 shares of Common Stock (which amount shall be increased proportionately to up to 658,250 shares of Common Stock if a portion or all of the over-allotment option in connection with the Offering is exercised) that are acquired by the Sponsors at a price per Share of $8.00 in a private placement that shall close simultaneously with the consummation of the Offering; (vi) “Subscription Agreement” shall mean the subscription agreement that each Sponsor entered into committing itself to purchase his, her or its portion of the Sponsors’ Shares; (vii) “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and all of the net proceeds from the sale of Sponsors’ Shares will be deposited; and (viii) “Escrow Agreement” shall mean the stock escrow agreement to be entered into among the Company, the Sponsors and the escrow agent named therein, as described in the Prospectus.
14. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
15. Neither party may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the undersigned and each of the undersigned’s heirs, personal representatives, successors and assigns.
16. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
17. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to the other party hereto at the address listed on the first page of this Letter Agreement or such other address as any party hereto may provide to the other parties hereto by notice sent in accordance with this provision.
[Signature Page Follows]
| Sincerely, | |
| By: | /s/ Howard I. Schwartz, M.D. |
| Howard I. Schwartz, M.D. | |
Acknowledged and Agreed:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel |
| Charles F. Fistel, Chief Executive Officer |
[Signature Page to Insider Letter]
Exhibit 10.8
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of June 26, 2013 by and between MedWorth Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (“Trustee”).
WHEREAS, the Company’s registration statement on Form S-1, No. 333-188706 (“Registration Statement”) for its initial public offering (“IPO”) of shares of its common stock, par value $.0001 per share (“Common Stock”), has been declared effective as of the date hereof (“Effective Date”) by the Securities and Exchange Commission (capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Registration Statement); and
WHEREAS, EarlyBirdCapital, Inc. (“EBC”) is acting as the representative of the underwriters in the IPO; and
WHEREAS, simultaneously with the IPO, the Company’s initial stockholders will be purchasing an aggregate of 634,250 shares of Common Stock (which amount shall be increased proportionately to up to 713,450 shares of Common Stock if a portion or all of the over-allotment option in connection with the Company’s IPO is exercised) (“Sponsors’ Shares”) from the Company for an aggregate purchase price of $5,074,000, or up to $5,707,600 if the over-allotment option is exercised in full; and
WHEREAS, as described in the Registration Statement, and in accordance with the Company’s Amended and Restated Certificate of Incorporation, a portion of the gross proceeds of the IPO and all of the gross proceeds from the sale of the Sponsors’ Shares (a total of $55,176,000, or $63,452,400 if the underwriters over-allotment option is exercised in full) will be delivered to the Trustee to be deposited and held in a trust account for the benefit of the Company and the holders of the Company’s Common Stock issued in the IPO as hereinafter provided (the aggregate amount to be delivered to the Trustee will be referred to herein as the “Property”; the stockholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Stockholders,” and the Public Stockholders and the Company will be referred to together as the “Beneficiaries”); and
WHEREAS, pursuant to the terms of a Merger & Acquisition Agreement entered into between the Company and EBC in connection with the IPO, EBC is entitled to a fee (the “Investment Banking Fee”) of $1,848,000 for acting as the Company’s investment banker in connection with the Company’s initial business combination as described in the Registration Statement (“Business Combination”), which Investment Banking Fee is to be paid upon closing of such Business Combination from the Trust Account (defined below); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property;
IT IS AGREED:
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1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in a segregated trust account (“Trust Account”) established by the Trustee at JP Morgan Chase Bank, NA and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the instruction of the Company, invest and reinvest the Property (i) in United States government treasury bills having a maturity of 180 days or less and/or (ii) in money market funds meeting the conditions of paragraphs (c)(2), (c)(3), (c)(4) and (c) (5) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, and that invest solely in U.S. treasuries, as determined by the Company;
(d) Collect and receive, when due, all principal and income arising from the Property;
(e) Notify the Company within two (2) business days of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of its tax returns;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
(h) Render to the Company monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements of the Trust Account; and
(i) Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter (“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B hereto, signed on behalf of the Company by its President or Chairman of the Board and Secretary or Assistant Secretary and affirmed by counsel for the Company, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account only as directed in the Termination Letter (which, in the case of Exhibit A, requires joint instructions from the Company and EBC and will include instructions to pay the Investment Banking Fee from the Property on closing of the Business Combination) and the other documents referred to therein; provided, however, that in the event that a Termination Letter has not been received by the Trustee by the 18-month anniversary of the Effective Date (“Last Date”), the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B hereto and distributed to the stockholders of record on the record date established by the Company for such purpose. The Company shall set the record date to be within ten days of the Last Date, or as soon thereafter as reasonably practicable and legally permissible. The provisions of this Section 1(i) may not be modified, amended or deleted under any circumstances.
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2. Limited Distributions of Income on Property.
(a) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C, the Trustee shall distribute to the Company the amount of interest and other income earned on the Property requested by the Company to cover any income or other tax obligation owed by the Company.
(b) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D, the Trustee shall distribute to the Company the amount of interest and other income earned on the Property requested by the Company to cover expenses related to investigating and selecting a target business and other working capital requirements, including but not limited to costs and expenses associated with the exercise of the over-allotment option, if applicable, and the cost of the liquidation and dissolution of the Company, if applicable; provided, however, that the Company will not be allowed to withdraw interest and other income earned on the Property unless there is an amount of interest and other income available in the Trust Account sufficient to pay the Company’s tax obligations currently due and owing.
(c) The limited distributions referred to in Sections 2(a) and 2(b) above shall be made only from income collected on the Property. Except as provided in Section 2(a), and 2(b) above, no other distributions from the Trust Account shall be permitted except in accordance with Section 1(i) hereof.
3. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:
(a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Chief Executive Officer, President, Vice President or Chief Financial Officer. In addition, except with respect to its duties under paragraphs 1(i), 2(a) and 2(b) above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it in good faith believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject to the provisions of Section 6(g) of this Agreement, hold the Trustee harmless and indemnify the Trustee from and against, any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection with any claim, potential claim, action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustee’s gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this paragraph, it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company which consent shall not be unreasonably withheld. The Company may participate in such action with its own counsel;
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(c) Pay the Trustee an initial acceptance fee, an annual fee and a transaction processing fee for each disbursement made pursuant to Sections 2(a) and 2(b) as set forth on Schedule A hereto, which fees shall be subject to modification by the parties from time to time. It is expressly understood that the Property shall not be used to pay such fees and further agreed that any fees owed to the Trustee shall be deducted by the Trustee from the disbursements made to the Company pursuant to Sections 1(i) solely in connection with the consummation of a Business Combination, or pursuant to Section 2(b). The Company shall pay the Trustee the initial acceptance fee and first year’s fee at the consummation of the IPO and thereafter on the anniversary of the Effective Date. The Trustee shall refund to the Company the annual fee (on a pro rata basis) with respect to any period after the liquidation of the Trust Fund;
(d) In connection with any vote of the Company’s stockholders regarding an Business Combination, provide to the Trustee an affidavit or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating stockholder votes verifying the vote of the Company’s stockholders regarding such Business Combination;
(e) The Company shall provide EBC with a copy of any Termination Letters and/or any other correspondence that it issues to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after such issuance; and
(f) In the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to Section 1(i), the Company agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement.
4. Limitations of Liability. The Trustee shall have no responsibility or liability to:
(a) Take any action with respect to the Property, other than as directed in paragraphs 1 and 2 hereof and the Trustee shall have no liability to any party except for liability arising out of its own gross negligence or willful misconduct;
(b) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(c) Change the investment of any Property, other than in compliance with paragraph 1(c);
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(d) Refund any depreciation in principal of any Property;
(e) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(f) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(g) Verify the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by the Company or any other action taken by it is as contemplated by the Registration Statement;
(h) File local, state and/or Federal tax returns or information returns with any taxing authority on behalf of the Trust Account and payee statements with the Company documenting the taxes, if any, payable by the Company or the Trust Account, relating to the income earned on the Property;
(i) Pay any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account or released to it under Section 2(a) hereof);
(j) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this agreement and that which is expressly set forth herein; and
(k) Verify calculations, qualify or otherwise approve Company requests for distributions pursuant to Section 1(i), 2(a) or 2(b) above.
5. Termination. This Agreement shall terminate as follows:
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(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of paragraph 1(i) hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Paragraph 3(b).
6. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. Upon receipt of written instructions, the Trustee will confirm such instructions with an Authorized Individual at an Authorized Telephone Number listed on the attached Exhibit E. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds transfers, the Trustee will rely upon all information supplied to it by the Company, including account names, account numbers and all other identifying information relating to a beneficiary, beneficiary’s bank or intermediary bank. The Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the wire.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. It may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Section 1(i) (which may not be amended under any circumstances) and Sections 3(e) and 3(f) and the Company’s obligation to pay the Investment Banking Fee upon the closing of an Business Combination from the Trust Account (which may not be changed, amended or modified without the prior written consent of EBC), this Agreement or any provision hereof may only be changed, amended or modified by a writing signed by each of the parties hereto. As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives the right to trial by jury. The Trustee may require from Company counsel an opinion as to the propriety of any proposed amendment.
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(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough of Manhattan, for purposes of resolving any disputes hereunder.
(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or by facsimile transmission:
if to the Trustee, to:
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven G. Nelson, Chairman, and Frank A. DiPaolo, CFO
Fax No.: (212) 509-5150
if to the Company, to:
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
Attn: Charles F. Fistel
Fax No.: (305) 395-5219
in either case with a copy to:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
Attn: Steven Levine
Fax No.: (___) ___-____
And
Broad and Cassel
2. S. Biscayne Boulevard, Suite 2100
Miami, Florida 33131
Attn: A. Jeffry Robinson
Fax No: (305) 373-9443
(f) This Agreement may not be assigned by the Trustee without the prior consent of the Company.
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(g) Each of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance. In the event that the Trustee has a claim against the Company under this Agreement, the Trustee will pursue such claim solely against the Company and not against the Property held in the Trust Account.
(h) Each of the Company and the Trustee hereby acknowledge that EBC is a third party beneficiary of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee | ||
| By: | /s/ Frank A. Di Paolo | |
| Name: Frank A. Di Paolo | ||
| Title: Trust Officer | ||
| MEDWORTH ACQUISITION CORP. | ||
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
[Signature Page for Investment Management Trust Agreement]
| 9 |
SCHEDULE A
| Fee Item | Time and method of payment | Amount | ||||
| Initial acceptance fee | Initial closing of IPO by wire transfer | $ | 3,500 | |||
| Annual fee | First year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or check | $ | 10,000 | |||
| Transaction processing fee for disbursements to Company under Section 2 | Deduction by Trustee from accumulated income following disbursement made to Company under Section 2 | $ | 250 | |||
| Paying Agent services as required pursuant to section 1(i) | Billed to Company upon delivery of service pursuant to section 1(i) | Prevailing rates | ||||
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EXHIBIT A
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank DiPaolo
| Re: | Trust Account No. - Termination Letter |
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between MedWorth Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of June 26, 2013 (“Trust Agreement”), this is to advise you that the Company has entered into an agreement (“Business Agreement”) with __________________ (“Target Business”) to consummate a business combination with Target Business (“Business Combination”) on or about [insert date]. The Company shall notify you at least 48 hours in advance of the actual date of the consummation of the Business Combination (“Consummation Date”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments on __________ and to transfer the proceeds to the above-referenced account at UBS Financial Services Inc. to the effect that, on the Consummation Date, all of the funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in the Trust Account awaiting distribution, the Company will not earn any interest or dividends.
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On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated, or will, concurrently with your transfer of funds to the accounts as directed by the Company be consummated, and (ii) the Company shall deliver to you (a) [an affidavit] [a certificate] of the Chief Executive Officer, which verifies that the Business Combination has been approved by the vote of the Company’s stockholders, if a vote is held and (b) joint written instructions from it and EarlyBirdCapital, Inc. with respect to the transfer of the funds held in the Trust Account, including payment of the Investment Banking Fee from the Trust Account (“Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the counsel's letter and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and be distributed after the Consummation Date to the Company or be distributed immediately and the penalty incurred. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof, the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the business day immediately following the Consummation Date as set forth in the notice.
| Very truly yours, | |
| MEDWORTH ACQUISITION CORP. | |
| By:________________________________ | |
| By:________________________________ |
cc: EarlyBirdCapital, Inc.
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EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank DiPaolo
| Re: | Trust Account No. - Termination Letter |
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between MedWorth Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of June 26, 2013 (“Trust Agreement”), this is to advise you that the Company has been unable to effect a Business Combination within the time frame specified in the Company’s Amended and Restated Certificate of Incorporation, as described in the Company’s prospectus relating to its IPO. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all the Trust Account investments on or before ______________ and to transfer the total proceeds to the Trust Checking Account at UBS Financial Services Inc. to await distribution to the Company’s Public Stockholders. The Company has selected ____________, 20__ as the record date for the purpose of determining the Public Stockholders entitled to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation proceeds while on deposit in the Trust Checking Account. You agree to be the Paying Agent of record and in your separate capacity as Paying Agent, to distribute said funds directly to the Company’s Public Stockholders in accordance with the terms of the Trust Agreement and the Amended and Restated Certificate of Incorporation of the Company. Upon the distribution of all the funds in the Trust Account, your obligations under the Trust Agreement shall be terminated.
| Very truly yours, | |
| MEDWORTH ACQUISITION CORP. | |
| By:________________________________ | |
| By:________________________________ |
cc: EarlyBirdCapital, Inc.
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EXHIBIT C
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Frank Di Paolo and Cynthia Jordan
| Re: | Trust Account No. |
Gentlemen:
Pursuant to paragraph 2(a) of the Investment Management Trust Agreement between MedWorth Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of June 26, 2013 (“Trust Agreement”), the Company hereby requests that you deliver to the Company $_______ of the interest and other income earned on the Property as of the date hereof. The Company needs such funds to pay its tax obligations. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
| MEDWORTH ACQUISITION CORP. | |
| By:________________________________ | |
| By:________________________________ |
cc: EarlyBirdCapital, Inc.
| 14 |
EXHIBIT D
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Frank Di Paolo and Cynthia Jordan
| Re: | Trust Account No. |
Gentlemen:
Pursuant to paragraph 2(b) of the Investment Management Trust Agreement between MedWorth Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of June 26, 2013 (“Trust Agreement”), the Company hereby requests that you deliver to the Company $_______ of the interest and other income earned on the Property as of the date hereof. The Company needs such funds to cover its expenses relating to investigating and selecting a target business and other working capital requirements, including but not limited to expenses relating to the exercise of the over-allotment option, if applicable, and expenses related to the liquidation and dissolution of the Company, if applicable. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
| Very truly yours, | |
| MEDWORTH ACQUISITION CORP. | |
| By:________________________________ | |
| By:________________________________ |
cc: EarlyBirdCapital, Inc.
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EXHIBIT E
Authorized Individuals and Authorized Telephone Numbers
| Authorized Individual | Authorized Telephone Numbers | |
| Charles F. Fistel | (305)347-5180 | |
| Stephen B. Cichy | (847)858-4216 | |
| Anthony Minnuto | (800)701-2197 Ext. 701 |
| 16 |
Exhibit 10.9
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of June 26, 2013 (“Agreement”), by and among MEDWORTH ACQUISITION CORP., a Delaware corporation (“Company”), Charles F. Fistel (“Fistel”), Stephen B. Cichy (“Cichy”), and Anthony Minnuto (“Minnuto” and together with Fistel and Cichy, the “Insiders”), John J. Delucca, Jeffrey A. Rein, Robert G. Savage and Howard I. Schwartz, M.D. (collectively with the Insiders, the “Initial Stockholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (“Escrow Agent”).
WHEREAS, the Company has entered into an Underwriting Agreement, dated June 26, 2013 (“Underwriting Agreement”), with EarlyBirdCapital, Inc. (“EBC”) acting as representative of the several underwriters (collectively, the “Underwriters”), pursuant to which, among other matters, the Underwriters have agreed to purchase 6,600,000 shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company, plus an additional 990,000 shares of Common Stock if the Underwriters exercise their over-allotment option in full, all as more fully described in the Company’s final Prospectus, dated June 26, 2013 (“Prospectus”) comprising part of the Company’s Registration Statement on Form S-1 (SEC File No. 333-188706) under the Securities Act of 1933, as amended (“Registration Statement”), declared effective on June 26, 2013 (“Effective Date”).
WHEREAS, the Initial Stockholders have agreed as a condition of the sale of the shares of Common Stock pursuant to the Underwriting Agreement to deposit their shares of Common Stock of the Company, as set forth opposite their respective names in Exhibit A attached hereto (collectively, the “Escrow Shares”), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Stockholders desire that the Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Company and the Initial Stockholders hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Shares. On or before the Effective Date, each of the Initial Stockholders shall deliver to the Escrow Agent certificates representing such Initial Stockholder’s respective Escrow Shares, to be held and disbursed subject to the terms and conditions of this Agreement. Each Initial Stockholder acknowledges that the certificate representing such Initial Stockholder’s Escrow Shares is legended to reflect the deposit of such Escrow Shares under this Agreement, it being agreed that such legend shall be removed upon the disbursement of the Escrow Shares as described in Section 3 below.
3. Disbursement of the Escrow Shares.
3.1 The Escrow Agent shall hold the Escrow Shares as follows: (i) with respect to half of the Escrow Shares deposited by each Initial Stockholder, until six months after the consummation by the Company of an initial business combination, (as described in the Prospectus) and (ii) with respect to the remainder of the Escrow Shares, one year after the consummation of a business combination (collectively, the “Escrow Period”); on which date it shall, upon written instructions from the Company’s Chief Executive Officer or President, disburse each of the Initial Stockholder’s Escrow Shares to such Initial Stockholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time after the date hereof, then the Escrow Agent shall promptly return the certificates representing the Escrow Shares to the Initial Stockholders; provided further, however, that the Escrow Agent shall disburse each Initial Stockholder’s Escrow Shares (and any applicable share power) to such Initial Stockholder, if, during the Escrow Period, the Company (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the stockholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property, upon receipt of a notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares in accordance with this Section 3.
3.2 Notwithstanding Section 3.1, if the Underwriters do not exercise their over-allotment option to purchase an additional 990,000 shares of Common Stock of the Company in full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Insiders agree that the Escrow Agent shall return to the Company for cancellation, at no cost, the number of Escrow Shares held by each Insider determined by multiplying (a) the product of (i) 225,000, multiplied by (ii) a fraction, (x) the numerator of which is the number of Escrow Shares held by each Insider, and (y) the denominator of which is the total number of Escrow Shares, by (b) a fraction (“Overallotment Fraction”), (i) the numerator of which is 990,000 minus the number of shares of Common Stock purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 990,000. The Company shall promptly provide notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of shares of Common Stock, if any, purchased by the Underwriters in connection with their exercise thereof.
4. Rights of Initial Shareholders in Escrow Shares.
4.1 Voting Rights as a Stockholder. Subject to the terms of the Insider Letters described in Section 4.4 hereof and except as herein provided, the Initial Stockholders shall retain all of their rights as stockholders of the Company during the Escrow Period, including, without limitation, the right to vote their Escrow Shares.
4.2 Dividends and Other Distributions in Respect of the Escrow Shares. During the Escrow Period, all dividends payable in cash with respect to the Escrow Shares held in escrow at the time of the dividend shall be paid to the Initial Stockholders, but all dividends payable in stock or other non-cash property (“Non-Cash Dividends”) with respect to the Escrow Shares held in escrow at the time of the dividend shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends distributed thereon, if any.
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4.3 Restrictions on Transfer. During the Escrow Period, while any Escrow Shares are still held by the Escrow Agent pursuant to the terms of this Agreement, the only permitted transfers of such Escrow Shares will be (i) to the Initial Stockholders or to the Company’s officers, directors and employees, (ii) if the Initial Stockholder is an entity, as a distribution to partners, members, stockholders or affiliates of the Initial Stockholder upon the liquidation and dissolution of the Initial Stockholder, (iii) by bona fide gifts to members of the Initial Stockholder’s immediate family or to a trust, the beneficiary of which is the Initial Stockholder and/or members of the Initial Stockholder’s immediate family for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death of the Initial Holder, (v) pursuant to a qualified domestic relations order, (vi) with the Company’s prior written consent, by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities; (vii) by private sales at prices no greater than the price at which the Escrow Shares were originally purchased or (viii) to the Company for cancellation in connection with the consummation of a Business Combination, in each case, except for clause (viii), on the condition that such transfers comply with applicable securities laws, in the opinion of counsel to the Corporation, and that such transfers may be implemented only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement and of the Insider Letter (as defined below) signed by the Initial Stockholder transferring the Escrow Shares.
4.4 Insider Letters. Each of the Initial Stockholders has executed a letter agreement with EBC and the Company, dated as indicated on Exhibit A hereto, and the form of which is filed as an exhibit to the Registration Statement (“Insider Letter”), respecting the rights and obligations of such Initial Stockholder in certain events, including but not limited to the liquidation of the Company.
5. Concerning the Escrow Agent.
5.1 Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
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5.2 Indemnification. The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Shares or it may deposit the Escrow Shares with the clerk of any appropriate court or it may retain the Escrow Shares pending receipt of a final, non appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Shares are to be disbursed and delivered. The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 Compensation. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder, as set forth on Exhibit B attached hereto. The Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
5.4 Further Assurances. From time to time on and after the date hereof, the Company and the Initial Stockholders shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.5 Resignation. The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, the Escrow Shares held hereunder. If no new escrow agent is so appointed within the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Shares with any court it reasonably deems appropriate.
5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.
5.7 Liability. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
5.8 Waiver. The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Escrow Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
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6. Miscellaneous.
6.1 Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
6.2 Third Party Beneficiaries. Each of the Initial Stockholders hereby acknowledges that the Underwriters are third party beneficiaries of this Agreement and this Agreement may not be modified or changed without the prior written consent of EBC.
6.3 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
6.4 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
6.6 Notices. Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national overnight courier service, return receipt requested, postage prepaid, and shall be deemed given when so delivered personally or, if sent by private national overnight courier service, on the next business day, or, if mailed, two days after the date of mailing, as follows:
If to the Company, to:
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
Attn: Charles F. Fistel
Fax No.: (305) 395-5219
If to an Initial Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Chairman
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A copy of any notice sent hereunder shall be sent to:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
Attn: Steven Levine
Fax No.: (___) ___-____
and:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and:
Broad and Cassel
2 South Biscayne Blvd., 21st Floor
Miami, Florida 33131
Attn: A. Jeffry Robinson, Esq.
The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.
6.7 Liquidation of the Company. The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company in the event that the Company fails to consummate a business combination within the time period specified in the Prospectus.
6.8 Counterparts. This Agreement may be executed in several counterparts, each one of which shall constitute an original and may be delivered by facsimile transmission, and together the counterparts shall constitute one and the same instrument.
[Signature Page Follows]
| 6 |
WITNESS the execution of this Agreement as of the date first above written.
| COMPANY: | ||
| MEDWORTH ACQUISITION CORP. | ||
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
| INITIAL STOCKHOLDERS: | ||
| /s/ Charles F. Fistel | ||
| Charles F. Fistel | ||
| /s/ Stephen B. Cichy | ||
| Stephen B. Cichy | ||
| /s/ Anthony Minnuto | ||
| Anthony Minnuto | ||
| /s/ John J. Delucca | ||
| John J. Delucca | ||
| /s/ Jeffrey A. Rein | ||
| Jeffrey A. Rein | ||
| /s/ Robert G. Savage | ||
| Robert G. Savage | ||
| /s/ Howard I. Schwartz, M.D. | ||
| Howard I. Schwartz, M.D. | ||
| ESCROW AGENT: | ||
| CONTINENTAL STOCK TRANSFER | ||
| & TRUST COMPANY | ||
| By: | /s/ Monty Harry | |
| Name: Monty Harry | ||
| Title: Vice President |
[Signature Page for Stock Escrow Agreement]
| 7 |
EXHIBIT A
| Name and Address of Initial Stockholder | Number of Shares | Stock Certificate Number | Date of Insider Letter | |||||||
| Stephen Cichy 4010 North Howard Avenue Arlington Heights, IL 60004 | 467,500 | June 26, 2013 | ||||||||
| John J. Delucca 314 Ardmore Road Ho-Ho-Kus, NJ 07423 | 34,375 | June 26, 2013 | ||||||||
| Charles Fistel 801 Brickell Avenue Suite 943 Miami, FL 33131 | 467,500 | June 26, 2013 | ||||||||
| Anthony Minnuto 999 Brickell Avenue Suite 800 Miami, FL 33131 | 825,000 | June 26, 2013 | ||||||||
| Jeffrey A. Rein 1883 E. Sahuaro Blossom Place Tucson, AZ 85718 | 55,000 | June 26, 2013 | ||||||||
| Robert G. Savage 315 South Shore Drive Sarasota, FL 34234 | 34,375 | June 26, 2013 | ||||||||
| Howard I. Schwartz, M.D. 6141 Sunset Drive Suite 301 Miami, FL 33143 | 13,750 | June 26, 2013 | ||||||||
EXHIBIT B
Escrow Agent Fees
Exhibit 10.10
PROMISSORY NOTE
| $45,000 | As of June 25, 2013 |
MedWorth Acquisition Corp., a Delaware corporation (“Maker”), promises to pay to the order of Anthony Minnuto (“Payee”) the principal sum of Forty-five Thousand and No Cents ($45,000) in lawful money of the United States of America, on the terms and conditions described below.
1. Principal. The principal balance of this Promissory Note (the “Note”) shall be repayable on the earlier of (i) the date on which Maker consummates an initial public offering of its securities (“IPO”) or (ii) the date on which Maker determines to not proceed with such IPO.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorneys’ fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
4. Events of Default. The following shall constitute Events of Default:
(a) Failure to Make Required Payments. Failure by Maker to pay the principal of this Note within five (5) business days following the date when due.
(b) Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under the U.S. Bankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
(d) Cross Default. Maker shall have defaulted under that certain promissory note dated as of February 22, 2013 with in the principal amount of $62,500 made in favor of Charles F. Fistel (the "Additional Payee") or that certain promissory note dated as of February 22, 2013 with the principal amount of $62,500 made in favor of the Payee.
5. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 4(a), Payee may, by written notice to Maker, declare this Note to be due and payable, whereupon the principal amount of this Note, and all other amounts payable thereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 4(b), 4(c) or 4(d), the unpaid principal balance of, and all other sums payable with regard to, this Note shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.
6. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment.
7. Unconditional Liability. Maker agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee or the Additional Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.
8. Notices. Any notice called for hereunder shall be deemed properly given if (i) sent by certified mail, return receipt requested, (ii) personally delivered, (iii) dispatched by any form of private or governmental express mail or delivery service providing receipted delivery, (iv) sent by telefacsimile or (v) sent by e-mail, to the following addresses or to such other address as either party may designate by notice in accordance with this Section:
| If to Maker: | MedWorth Acquisition Corp. |
| 999 Brickell Avenue | |
| Suite 800 | |
| Miami, FL 33131 | |
| Fascimile: 305-395-5219 | |
| aminnuto@medworthgroup.com |
| 2 |
| If to Payee: | 801 Brickell Avenue |
| Suite 943 | |
| Miami, FL 33131 | |
| Fascimile: 305-395-5219 | |
| medworth1@gmail.com |
Notice shall be deemed given on the earlier of (i) actual receipt by the receiving party, (ii) the date shown on a telefacsimile transmission confirmation, (iii) the date on which an e-mail transmission was received by the receiving party’s on-line access provider, (iv) the date reflected on a signed delivery receipt, or (vi) two (2) business days following tender of delivery or dispatch by express mail or delivery service.
9. Governing Law. This Note shall be construed and enforced in accordance with the domestic, internal law, but not the law of conflict of laws, of the State of Florida .
10. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by its duly authorized officer effective as of the day and year first above written.
| MEDWORTH ACQUISITION CORP. | ||
| By: | /s/ Charles F. Fistel | |
| Charles F. Fistel, Chief Executive Officer | ||
| 3 |
Exhibit 10.14
Subscription Agreement
| As of June 26, 2013 |
To the Board of Directors of
MedWorth Acquisition Corp.:
Gentlemen:
In addition to the shares previously subscribed for pursuant to the undersigned’s Subscription Agreement dated March 26, 2013, the undersigned hereby subscribes for and agrees to purchase 29,250 shares of common stock (“Sponsors’ Shares”) of MedWorth Acquisition Corp. (the “Corporation”), at $8.00 per Sponsor Share (the “Purchase Price”). EarlyBirdCapital, Inc. is acting as representative of the underwriters in the Corporation’s initial public offering (the “IPO”). In addition, if the underwriters in the IPO exercise the over-allotment option, in part or in full, the undersigned agrees to purchase up to an additional 7,200 Sponsors’ Shares, pro rata based on the percentage of the overallotment option that is exercised (the “Over-allotment Sponsors’ Shares”), at $8.00 per Sponsor Share (the “Over-allotment Purchase Price”). The Sponsors’ Shares and Over-allotment Sponsors’ Shares will be sold to the undersigned on a private placement basis and not as part of the IPO.
Not later than June 27, 2013, or one business day prior to the closing of the over-allotment option, as the case may be, the undersigned shall wire the Purchase Price, or the Over-Allotment Purchase Price, as the case may be, to Broad and Cassel, as escrow agent (“Escrow Agent”), to hold in a non-interest bearing account until the Corporation consummates the IPO, or the over-allotment option exercise, as the case may be. The closing of the sale of the Sponsor Shares or the Over-allotment Sponsors’ Shares will take place simultaneously with the consummation of the IPO or the over-allotment option exercise, as the case may be. Immediately prior to the consummation of the IPO or the over-allotment option exercise, as the case may be, the Escrow Agent shall deposit the Purchase Price or the Over-allotment Purchase Price, as the case may be, without interest or deduction, into the trust account established by the Corporation for the benefit of the Corporation’s public shareholders as described in the Registration Statement, pursuant to the terms of an Investment Management Trust Agreement to be entered into between the Corporation and Continental Stock Transfer & Trust Company. In the event that the IPO is not consummated within 14 days of the date the Purchase Price is delivered to the Escrow Agent, the Escrow Agent shall return the Purchase Price to the undersigned, without interest or deduction.
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The undersigned represents and warrants that he/she/it has been advised that the Sponsors’ Shares and Over-allotment Sponsors’ Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”); that he/she/it is acquiring the Sponsors’ Shares and Over-allotment Sponsors’ Shares for his/her/its account for investment purposes only; that he/she/it has no present intention of selling or otherwise disposing of the Sponsors’ Shares or Over-allotment Sponsors Shares in violation of the securities laws of the United States; that he/she/it is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under the Securities Act; and that he/she/it is familiar with the proposed business, management, financial condition and affairs of the Corporation. The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any liquidating distribution by the Corporation with respect to the Sponsors’ Shares or Over-allotment Sponsors’ Shares if the Corporation does not complete a Business Combination (defined below).
The undersigned agrees that he/she/it shall not sell or transfer the Sponsors’ Shares or Over-allotment Sponsors’ Shares until the Corporation consummates a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination (“Business Combination”) with one or more businesses or entities as more fully described in the Registration Statement (except for transfers (i) to officers, directors and employees of the Corporation and, if the undersigned is an entity, as a distribution to partners, members or stockholders of the undersigned upon the liquidation and dissolution of the undersigned, (ii) by bona fide gift to a member of the undersigned’s immediate family or to a trust, the beneficiary of which is the undersigned or a member of the undersigned’s immediate family for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death of the undersigned, (iv) pursuant to a qualified domestic relations order, (v) with the Company’s prior written consent, by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities; (vi) by private sales at prices no greater than the price at which the Sponsors’ Shares or Over-allotment Sponsors’ Shares were originally purchased or (vii) to the Corporation for cancellation in connection with the consummation of a Business Combination, in each case, except for clause (vii), on the condition that such transfers comply with applicable securities laws, in the opinion of counsel to the Corporation, and that such transfers may be implemented only upon the respective transferee’s written agreement to be bound by the transfer restrictions of this Subscription Agreement). The undersigned acknowledges that the certificates for such Sponsors’ Shares and Over-allotment Sponsors Shares shall contain a legend indicating such restriction on transferability.
Each party hereto hereby acknowledges that the underwriters of the IPO are third party beneficiaries of this Subscription Agreement, and this Subscription Agreement may not be modified or changed without the prior written consent of EarlyBirdCapital, Inc.
| Very truly yours, | |
| /s/ Anthony Minnuto | |
| Anthony Minnuto |
| 2 |
Agreed to:
MedWorth Acquisition Corp.
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
| Broad and Cassel, solely as Escrow Agent | ||
| By: | /s/ Nina S. Gordon | |
| Name: Nina S. Gordon | ||
| Title: President, Nina S. Gordon, P.A., Partner | ||
| 3 |
Exhibit 10.15
Subscription Agreement
As of June 26, 2013
To the Board of Directors of
MedWorth Acquisition Corp.:
Gentlemen:
The undersigned hereby subscribes for and agrees to purchase 18,750 shares of common stock (“Sponsors’ Shares”) of MedWorth Acquisition Corp. (the “Corporation”), at $8.00 per Sponsor Share, for an aggregate purchase price of $150,000 (“Purchase Price”). The closing of the purchase of the Sponsors’ Shares shall occur simultaneously with the consummation of the Corporation’s initial public offering of securities (“IPO”) pursuant to a Registration Statement on Form S-1 filed by the Corporation with the Securities and Exchange Commission (the “Registration Statement”). EarlyBirdCapital, Inc. is acting as representative of the underwriters in the IPO. The Sponsors’ Shares will be sold to the undersigned on a private placement basis and not as part of the IPO.
Not later than the close of business on June 27, 2013, the undersigned shall wire the Purchase Price to Broad and Cassel, as escrow agent (“Escrow Agent”), to hold in a non-interest bearing account until the Corporation consummates the IPO. The closing of the sale of the Sponsor Shares will take place simultaneously with the consummation of the IPO. Immediately prior to the consummation of the IPO, the Escrow Agent shall deposit the Purchase Price, without interest or deduction, into the trust account established by the Corporation for the benefit of the Corporation’s public shareholders as described in the Registration Statement, pursuant to the terms of an Investment Management Trust Agreement to be entered into between the Corporation and Continental Stock Transfer & Trust Company. In the event that the IPO is not consummated within 14 days of the date the Purchase Price is delivered to the Escrow Agent, the Escrow Agent shall return the Purchase Price to the undersigned, without interest or deduction.
The undersigned represents and warrants that he/she/it has been advised that the Sponsors’ Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”); that he/she/it is acquiring the Sponsors’ Shares for his/her/its account for investment purposes only; that he/she/it has no present intention of selling or otherwise disposing of the Sponsors’ Shares in violation of the securities laws of the United States; that he/she/it is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under the Securities Act; and that he/she/it is familiar with the proposed business, management, financial condition and affairs of the Corporation. The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any liquidating distribution by the Corporation with respect to the Sponsors’ Shares if the Corporation does not complete a Business Combination (defined below).
The undersigned agrees that he/she/it shall not sell or transfer the Sponsors’ Shares or any underlying securities until the Corporation consummates a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination (“Business Combination”) with one or more businesses or entities as more fully described in the Registration Statement (except for transfers (i) to officers, directors and employees of the Corporation and, if the undersigned is an entity, as a distribution to partners, members or stockholders of the undersigned upon the liquidation and dissolution of the undersigned, (ii) by bona fide gift to a member of the undersigned’s immediate family or to a trust, the beneficiary of which is the undersigned or a member of the undersigned’s immediate family for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death of the undersigned, (iv) pursuant to a qualified domestic relations order, (v) with the Company’s prior written consent, by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities; (vi) by private sales at prices no greater than the price at which the Sponsors’ Shares were originally purchased or (vii) to the Corporation for cancellation in connection with the consummation of a Business Combination, in each case, except for clause (vii), on the condition that such transfers comply with applicable securities laws, in the opinion of counsel to the Corporation, and that such transfers may be implemented only upon the respective transferee’s written agreement to be bound by the transfer restrictions of this Subscription Agreement). The undersigned acknowledges that the certificates for such Sponsors’ Shares shall contain a legend indicating such restriction on transferability.
Each party hereto hereby acknowledges that the underwriters of the IPO are third party beneficiaries of this Subscription Agreement, and this Subscription Agreement may not be modified or changed without the prior written consent of EarlyBirdCapital, Inc.
| Very truly yours, | |
| /s/ Jeffrey A. Rein | |
| Jeffrey A. Rein |
| Agreed to: | ||
| By: | /s/ Charles F. Fistel | |
| Name: Charles F. Fistel | ||
| Title: Chief Executive Officer | ||
| Broad and Cassel, solely as Escrow Agent | ||
| By: | /s/ Nina S. Gordon | |
| Name: Nina S. Gordon | ||
| Title: President, Nina S. Gordon, P.A., Partner | ||
Exhibit 10.16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 26th day of June, 2013, by and among MedWorth Acquisition Corp., a Delaware corporation (the “Company”), and the undersigned parties listed under Investor on the signature page hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the outstanding shares of Common Stock of the Company issued prior to the consummation of the Company’s initial public offering (the “Founders’ Shares”);
WHEREAS, certain of the Investors are privately purchasing an aggregate of 634,250 shares of Common Stock simultaneously with the consummation of the Company’s initial public offering (which amount shall be increased proportionately to up to 713,450 shares if a portion or all of the over-allotment option in connection with the Company’s initial public offering is exercised) (the “Sponsor’s Shares”);
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the Investors with certain rights relating to the registration of the Founders’ Shares, the Sponsor’s Shares and any Working Capital Shares (defined below);
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“Business Combination” means the acquisition of direct or indirect ownership through a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar type of transaction, of one or more businesses or entities.
“Commission” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Form S-3” is defined in Section 2.3.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Founders’ Shares” is defined in the preamble to this Agreement.
“Sponsor’s Shares” is defined in the preamble to this Agreement.
“Investor” is defined in the preamble to this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Register,” “Registered” and “Registration” mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registrable Securities” means (i) the Founders’ Shares, (ii) the Sponsors’ Shares and (iii) any Working Capital Shares. Registrable Securities include any warrants, shares of capital stock or other equity securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of such Founders’ Shares, Sponsor’s Shares and Working Capital Shares. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding, or (d) such securities are freely saleable under Rule 144 without volume limitations.
“Registration Statement” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
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“Release Date” means the date on which Founders’ Shares are disbursed from escrow pursuant to Section 3 of that certain Stock Escrow Agreement dated as of June 26, 2013 by and among certain of the Investors and Continental Stock Transfer & Trust Company.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Sponsors’ Shares” is defined in the preamble to this Agreement.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
“Working Capital Shares” means any shares held by Investors, officers or directors of the Company or their affiliates which may be issued in payment of working capital loans made to the Company.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1 Request for Registration. At any time and from time to time on or after (i) the date that the Company consummates a Business Combination, with respect to the Sponsor’s Shares and Working Capital Shares or (ii) three months prior to the initial Release Date, with respect to all other Registrable Securities, the holders of a majority-in-interest of such Sponsor’s Shares, Working Capital Shares or other Registrable Securities, as the case may be, held by the Investors, officers or directors of the Company or their affiliates, or the transferees of the Investors, may make a written demand for registration under the Securities Act of all or part of their Sponsor’s Shares or other Registrable Securities, as the case may be (a “Demand Registration”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will notify all holders of Registrable Securities of the demand, and each holder of Registrable Securities who wishes to include all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Company within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities.
2.1.2 Effective Registration. A registration will not count as a Demand Registration until the Registration Statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
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2.1.3 Underwritten Offering. If a majority-in-interest of the Demanding Holders so elect and such holders so advise the Company as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a majority-in-interest of the holders initiating the Demand Registration, and subject to the approval of the Company.
2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities which the Demanding Holders desire to sell, taken together with all other shares of Common Stock or other securities which the Company desires to sell and the shares of Common Stock, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights held by other stockholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such Person has requested be included in such registration, regardless of the number of shares held by each such Person (such proportion is referred to herein as "Pro Rata")) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the shares of Common Stock or other securities registrable pursuant to the terms of the Purchase Option issued to EarlyBirdCapital, Inc. or its designees in connection with the Company’s initial public offering (the “Purchase Options” and such registrable securities, the “Option Securities”) and (iv) the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, as to which “piggy-back” registration has been requested by the holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number of Shares.
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2.1.5 Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then either the Demanding Holders shall reimburse the Company for the costs associated with the withdrawn registration (in which case such registration shall not count as a Demand Registration provided for in Section 2.1) or the withdrawn registration shall count as a Demand Registration provided for in Section 2.1.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. If at any time on or after the date the Company consummates a Business Combination the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company including, without limitation, pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of shares of Common Stock which the Company desires to sell, taken together with shares of Common Stock, if any, as to which registration has been demanded pursuant to written contractual arrangements with persons other than the holders of Registrable Securities hereunder and the Registrable Securities as to which registration has been requested under this Section 2.2, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:
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a) If the registration is undertaken for the Company’s account: (A) first, the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the shares of Common Stock or other securities, if any, comprised of Registrable Securities and Option Securities, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares, Pro Rata; and (C) third, to the extent that the Maximum Number of shares has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares;
b) If the registration is a “demand” registration undertaken at the demand of holders of Option Securities, (A) first, the shares of Common Stock or other securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares; and
c) If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable Securities or the Option Securities, (A) first, the shares of Common Stock or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other securities, if any, comprised of Registrable Securities and Option Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof and of the Purchase Options, as applicable, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.
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2.2.3 Withdrawal. Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.2.4 Registrations on Form S-3. The holders of Registrable Securities may at any time and from time to time, but not more often than one time per calendar year, request in writing that the Company register the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which may be available at such time (“Form S-3”); provided, however, that the Company shall not be obligated to effect such request through an underwritten offering. Upon receipt of such written request, the Company will promptly give written notice of the proposed registration to all other holders of Registrable Securities, and, as soon as practicable thereafter, effect the registration of all or such portion of such holder’s or Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities or other securities of the Company, if any, of any other holder or holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii) if the holders of the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
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3.1.1 Filing Registration Statement. The Company shall use its reasonable best efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its reasonable best efforts to cause such Registration Statement to become effective and use its reasonable best efforts to keep it effective for the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer any Demand Registration for up to ninety (90) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by the President or Chairman of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso for more than a total of ninety (90) days in any 365-day period in respect of a Demand Registration hereunder.
3.1.2 Copies. The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the holders of Registrable Securities included in such registration, and such holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as the holders of Registrable Securities included in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable Securities owned by such holders.
3.1.3 Amendments and Supplements. The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) business days after such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further notify such holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon.
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3.1.5 State Securities Laws Compliance. The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction.
3.1.6 Agreements for Disposition. The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders of Registrable Securities included in such registration statement, and the representations, warranties and covenants of the holders of Registrable Securities included in such registration statement in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the Company.
3.1.7 Cooperation. The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records. Upon execution of confidentiality agreements, the Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any of them in connection with such Registration Statement.
3.1.9 Intentionally Omitted.
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3.1.10 Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders, as soon as practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11 Listing. The Company shall use its reasonable best efforts to cause all Registrable Securities included in any Registration Statement to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.4(iv), or, upon any suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence of material non-public information, each holder of Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company, each such holder will deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company; (viii) the fees and expenses of any special experts retained by the Company in connection with such registration and (ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling shareholders and the Company shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of shares each is selling in such offering.
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3.4 Information. The holders of Registrable Securities shall promptly provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the Company’s obligation to comply with Federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless each Investor and each other holder of Registrable Securities, and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such selling holder expressly for use therein, or is based on any selling holder’s violation of the federal securities laws (including Regulation M) or failure to sell the Registrable Securities in accordance with the plan of distribution contained in the prospectus.
4.2 Indemnification by Holders of Registrable Securities. Each selling holder of Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling holder, indemnify and hold harmless the Company, each of its directors and officers, and each other selling holder and each other person, if any, who controls another selling holder within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or allegedly untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or the alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company by such selling holder expressly for use therein, or is based on any selling holder’s violation of the federal securities laws (including Regulation M) or failure to sell the Registrable Securities in accordance with the plan of distribution contained in the prospectus, and shall reimburse the Company, its directors and officers, and each other selling holder or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage, liability or action. Each selling holder’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling holder.
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4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel, which counsel is reasonably acceptable to the Indemnifying Party) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
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4.4 Contribution.
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 The amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such holder from the sale of Registrable Securities which gave rise to such contribution obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. Except with respect to the securities issued or issuable upon exercise of the Purchase Options, the Company represents and warrants that no person, other than a holder of the Registrable Securities, has any right to require the Company to register any shares of the Company’s capital stock for sale or to include shares of the Company’s capital stock in any registration filed by the Company for the sale of shares of capital stock for its own account or for the account of any other person.
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6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the holders of Registrable Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction with and to the extent of any permitted transfer of Registrable Securities by any such holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or holder of Registrable Securities or of any permitted assignee of the Investors or holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals or other communications (collectively, “Notices”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours, then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day delivery.
To the Company:
MedWorth Acquisition Corp.
801 Brickell Avenue, Suite 943
Miami, Florida 33131
Attn: Chief Executive Officer
with a copy to:
Broad and Cassel
2 South Biscayne Blvd., 21st Floor
Miami, Florida 33131
Attn: A. Jeffry Robinson, Esq.
To an Investor, to the address set forth below such Investor’s name on Exhibit A hereto.
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
6.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.
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6.7 Modifications and Amendments. No amendment, modification or termination of this Agreement shall be binding upon any party unless executed in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the Investor or any other holder of Registrable Securities may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by, interpreted under, and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed within the State of New York, without giving effect to any choice-of-law provisions thereof that would compel the application of the substantive laws of any other jurisdiction.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the transactions contemplated hereby, or the actions of the Investor in the negotiation, administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
| COMPANY: | |
| MEDWORTH ACQUISITION CORP. | |
| By: | /s/ Charles F. Fistel |
| Name: Charles F. Fistel | |
| Title: Chief Executive Officer | |
| INITIAL STOCKHOLDERS: | |
| /s/ Charles F. Fistel | |
| Charles F. Fistel | |
| /s/ Stephen B. Cichy | |
| Stephen B. Cichy | |
| /s/ Anthony Minnuto | |
| Anthony Minnuto | |
| /s/ John J. Delucca | |
| John J. Delucca | |
| /s/ Jeffrey A. Rein | |
| Jeffrey A. Rein | |
| /s/ Robert G. Savage | |
| Robert G. Savage | |
| /s/ Howard I. Schwartz, M.D. | |
| Howard I. Schwartz, M.D. | |
[Signature Page for Registration Rights Agreement]
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EXHIBIT A
| Name |
Address | |
| Stephen Cichy | 4010 North Howard Avenue | |
| Arlington Heights, IL 60004 | ||
| John J. Delucca | 314 Ardmore Road | |
| Ho-Ho-Kus, NJ 07423 | ||
| Charles Fistel | 801 Brickell Avenue | |
| Suite 943 | ||
| Miami, FL 33131 | ||
| Anthony Minnuto | 999 Brickell Avenue | |
| Suite 800 | ||
| Miami, FL 33131 | ||
| Jeffrey A. Rein | 1883 E. Sahuaro Blossom Place | |
| Tucson, AZ 85718 | ||
| Robert G. Savage | 315 South Shore Drive | |
| Sarasota, FL 34234 | ||
| Howard I. Schwartz | 6141 Sunset Drive | |
| Suite 301 | ||
| Miami, FL 33143 |
Exhibit 10.17
June 5, 2013
MedWorth Acquisition Corp.
999 Brickell Avenue, Suite 800
Miami, FL 33131
Re: Initial Public Offering of MedWorth Acquisition Corp.
Ladies and Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between MedWorth Acquisition Corp., a Delaware corporation (the “Company”), and EarlyBirdCapital, Inc., as Representative (the “Representative”) of the Underwriters named in Schedule I thereto (together with the Representative, collectively the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) of the Company's common stock, par value $0.0001 per share (the “Common Stock”). Certain capitalized terms used herein are defined in Section 3 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree with the Company as follows:
1. Each of the undersigned agrees that from the effective date of the Registration Statement on Form S-1 filed by the Company in connection with the IPO (the “Effective Date”) until the earlier of (i) the consummation of an Initial Business Combination or (ii) the liquidation of the Trust Account, Anthony Minnuto shall present to the Company any business combination opportunity with a Target Business prior to presenting such opportunity to Allied Medical Supply Inc. Each of Anthony Minnuto and Allied Medical Supply Inc. agrees that it will not pursue such business combination opportunity, directly or indirectly, unless and until a majority of the Company's disinterested independent directors has determined for any reason that the Company will not pursue such opportunity.
2. Each of Anthony Minnuto and Allied Medical Supply Inc. has the full right and power, without violating any agreement by which he or it is bound, to enter into this letter agreement and such letter agreement is enforceable by its terms against each of the undersigned.
3. As used herein, "Initial Business Combination" shall mean the acquisition by the Company, whether through a merger, share exchange, asset acquisition, stock purchase, reorganization, recapitalization or similar type of transaction, of one or more business or entities (“Target Business” or “Target Businesses”), whose collective fair market value is equal to at least 80% of the balance in the trust account referenced in the Registration Statement on Form S-1 filed by the Company in connection with the IPO (“Trust Account”).
4. The undersigned acknowledges and understands that the Company and the Underwriters will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO.
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5. This letter agreement shall be binding on the undersigned and the undersigned’s heirs, personal representatives, successors and assigns. This letter agreement shall terminate on the earlier of (i) the consummation of an Initial Business Combination and (ii) the liquidation of the Trust Account; provided that such termination shall not relieve the undersigned from liability for any breach of this letter agreement prior to its termination.
6. This letter agreement shall be governed by and interpreted and construed in accordance with the laws of the State of New York applicable to contracts formed and to be performed entirely within the State of New York, without regard to the conflicts of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of another jurisdiction.
7. No term or provision of this letter agreement may be amended, changed, waived, altered or modified except by written instrument executed and delivered by the party against whom such amendment, change, waiver, alteration or modification is to be enforced and except with the consent of the Representative, which is an intended third party beneficiary of this letter agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date first set forth above.
| ALLIED MEDICAL SUPPLY INC. | ||
| By: | /s/ Anthony Minnuto | |
| Name: Anthony Minnuto | ||
| Title: President | ||
| /s/ Anthony Minnuto | ||
| Anthony Minnuto | ||
ACCEPTED AND AGREED:
MEDWORTH ACQUISITION CORP.
| By: | /s/ Charles F. Fistel | |
| Charles F. Fistel, Chief Executive Officer |