Exhibit 10.1
DATED 12 JULY 2006
(1) CRT Capital Group LLC
(2) KBC Peel Hunt Ltd
(3) Directors
(4) Viceroy Acquisition Corporation
PLACING AGREEMENT RELATING TO
PLACING OF UNITS
OF VICEROY ACQUISITION CORPORATION
CONTENTS
1. Definitions and Interpretation.....................................2
2. Conditions.........................................................9
3. Subscription for Units............................................10
4. [Clause intentionally omitted]....................................11
5. Price Stabilisation...............................................11
6. AIM Application...................................................12
7. Allotment.........................................................13
8. Placing...........................................................13
9. Payment to the Company............................................14
10. Settlement........................................................15
11. Fees, Commissions and Expenses....................................15
12. Warranties........................................................17
13. Indemnity.........................................................19
14. Undertakings......................................................23
15. US Undertakings...................................................24
16. Prospectus Directive Undertakings.................................25
17. Representations of the Company, CRT and Peel Hunt.................26
18. Termination.......................................................26
19. General...........................................................29
20. Rights of Third Parties...........................................31
21. Notices and Service of Proceedings................................31
22. Law of Agreement..................................................32
SCHEDULE 1 The Directors..................................................34
SCHEDULE 2 Warranties.....................................................36
SCHEDULE 3 Documents to be Delivered......................................44
SCHEDULE 4 Limitation of Liability........................................46
SCHEDULE 5 Certificate....................................................47
SCHEDULE 6 Fees, Commissions and Expenses.................................48
Part IA UK Expenses to be Deducted from Proceeds by Peel Hunt..............48
Part IB US Expenses to be Deducted from Proceeds by CRT....................50
Part II Payments of Fees out of Working Capital by the Company.............51
1
THIS AGREEMENT IS MADE ON JULY 2006
BETWEEN:
(1) CRT CAPITAL GROUP LLC, a limited liability company organised under
the laws of the State of Delaware, with its principal place of
business at 262 Harbor Drive, Stamford, Connecticut, 06902 ("CRT");
(2) KBC PEEL HUNT LTD, whose registered office is at 111 Old Broad
Street, London EC2N 1PH ("PEEL HUNT");
(3) THE SEVERAL PERSONS whose names and addresses are set out in Schedule
1 (the "DIRECTORS"); and
(4) VICEROY ACQUISITION CORPORATION, a corporation organised under the
laws of the State of Delaware pursuant to the Delaware General
Corporation Law, whose principal place of business is 8235 Forsyth
Boulevard, Suite 400, St Louis, Missouri 63105 (the "COMPANY").
WHEREAS:
(A) The Company is a corporation formed and organised as a corporation
under the laws of the State of Delaware.
(B) Peel Hunt has agreed, subject to the terms, conditions and
provisions of this Agreement, to act as Nominated Adviser and
Broker and as UK placing agent in relation to Admission and the
Placing and CRT has agreed, subject to the terms and conditions and
provisions of this Agreement, to act as non-UK placing agent in
relation to Admission and the Placing.
(C) CRT and Peel Hunt have agreed on the terms and subject to the
conditions referred to in this Agreement to act as placing agents
for the Company in relation to Admission and the Placing and to use
their respective reasonable endeavours to procure subscribers for
the Subscription Units at the Placing Price.
(D) The Company has authorised Peel Hunt to make the AIM Application on
its behalf in respect of all Common Shares and Warrants of the
Company in issue.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Throughout this Agreement, including the Schedules, the following
words and expressions have the meanings given to them below:
ACCOUNTS DATE 30 April, 2006.
ACT the Companies Act 1985, as amended.
ADMISSION the admission of the whole of
the common stock and warrants of
the Company to trading on AIM
becoming effective in accordance
with Rule 6 of the AIM Rules.
ADMISSION DOCUMENT the document in the agreed form
proposed to be published on behalf
of the Company in connection with
the AIM
2
Application as required by Rule 3
of the AIM Rules.
ADMISSION DOCUMENT the verification notes in the
VERIFICATION NOTES agreed form (as of the date of
this Agreement) prepared by the
Company (and its advisors) in
connectio with the Placing and
for the purpose of
substantiating the accuracy and
completeness of the information
contained in the Admission
Document and the Presentation
Materials.
AIM the market of that name operated
by the London Stock Exchange.
AIM APPLICATION the application to be made by or
on behalf of the Company to the
London Stock Exchange for
Admission.
AIM RULES the rules published by the
London Stock Exchange governing
admission of securities to
trading on AIM and the
regulation of AIM companies and
their nominated advisers as
amended or reissued from time to
time.
ASSOCIATE in relation to a person, each of
its subsidiaries, holding
companies (and subsidiaries of
any such holding companies) and
each of their respective
officers, directors and
employees.
BROKER a member firm appointed by the
Company who assumes the
responsibilities set out in Rule
35 of the AIM Rules.
CERTIFICATE certificates in the agreed form
issued in respect of Common
Shares and Warrants
respectively.
COMMON SHARES shares of common stock par value
US$0.0001, in the capital of the
Company, having the rights and
being subject to the restrictions
set out in the certificate of
incorporation and bylaws of the
Company.
CONDITIONS the conditions set out in clause
2.1.
DEALING CODE the code for dealings in the
securities of the Company in the
agreed form.
DEALING DAY a day upon which dealings in
domestic securities may take
place on AIM with the authority
of the London Stock Exchange.
ENGAGEMENT LETTERS the letters of engagement between
the Company and CRT and between
the Company and Peel Hunt dated 13
April and 4 May 2006 respectively,
(and in the case of Peel Hunt,
including without limitation, its
standard terms and conditions as
provided to the Company) entered
into in relation to the Placing,
the AIM Application and Admission,
which shall terminate upon
Admission.
EXCHANGE ACT the US Securities Exchange Act of
1934, as amended.
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EXECUTIVE DIRECTORS the Directors whose names appear
in Part A of Schedule 1.
FOUNDING SHAREHOLDERS the persons who hold, directly or
indirectly, Common Shares issued
immediately prior to the Placing.
FSA the UK Financial Services Authority.
FSMA the UK Financial Services and
Markets Act 2000.
IMPACT DAY the date of this Agreement.
INDEMNIFIED PERSONS CRT and Peel Hunt and each of their
respective Associates.
INDEMNITY the indemnity in favour of the
Indemnified Persons set out in
clause 13.
LOCK-IN DEED the deed to be entered into
between each of the Directors
and Founding Shareholders, the
Company and Peel Hunt in the
agreed form setting out certain
restrictions in relation to the
disposal of the Company's
securities by the Directors and
Founding Shareholders and
certain of their connected
persons.
LONDON STOCK EXCHANGE London Stock Exchange plc.
LONG STOP DATE 5 p.m. on 31 July, 2006.
LOSSES all losses, claims, costs,
damages, liabilities, charges
(including stamp duty and stamp
duty reserve tax) and expenses
properly and reasonably incurred
(including reasonable fees and
costs and expenses of legal
counsel).
MEMBER STATE the countries which are members of
the European Economic Area.
NOMINATED ADVISER the person appointed by the
Company as its nominated adviser
pursuant to Rule 1 of the AIM
Rules who assumes the
responsibilities set out in Rule
39 and Schedule 6 of the AIM
Rules.
NOMINATED ADVISER the agreement entered into on the
AGREEMENT date of this Agreement between the
Company and Peel Hunt, appointing
Peel Hunt as nominated adviser and
broker to the Company with effect
from Admission.
NON-EXECUTIVE DIRECTORS the Directors whose names appear
in part B of Schedule 1.
PLACEES the persons whom CRT and Peel Hunt
procure to subscribe for the
Subscription Units on the terms
and subject to the conditions of
the Placing Letters (excluding,
for the avoidance of doubt, Paul
Anthony Novelly, or his
designees).
PLACING the proposed placing by CRT and
Peel Hunt of the Subscription
Units in accordance with the
terms of this Agreement, the
Placing Letters and the other
Placing
4
Documents and as described in
the Admission Document.
PLACING DOCUMENTS the Admission Document, the
Placing Letters and any other
documents issued in connection
with the Placing including,
without limitation, any
Supplementary Admission Document
(or any pathfinder version of the
Admission Document).
PLACING LETTERS US Placing Letter and the UK
Placing Letter.
PLACING PRICE US $8.00 per Unit.
PRESENTATION MATERIALS the presentation materials in the
agreed form prepared by CRT on
behalf of the Company and used by
it in meetings with institutional
investors in connection with the
Placing prior to the date of this
Agreement.
PRESS RELEASE the press release relating to the
Placing in the agreed form.
PRICE PER STABILISATION SHARE a price equal to the average price
per Stabilisation Share paid by
Peel Hunt for all Stabilisation
Shares calculated as follows:
total price paid by Peel Hunt for
all Stabilisation Shares divided
by the Stabilisation Shares
Quantity.
PROCEEDS the total subscription amount
payable by Placees in respect of
Subscription Units at the
Placing Price to CRT and Peel
Hunt, as agents for the Company,
in connection with the Placing.
PROSPECTUS DIRECTIVE Directive 2003/71/EC and includes
any relevant implementing measure
in the applicable Member State.
REDUCED PROCEEDS an amount equal to the Proceeds
minus the Stabilisation
Withholding Amount.
REGISTRAR Capita IRG (Offshore) Limited.
REGULATION D Rules 501-508 of the Securities Act.
REGULATION S Rules 901-906 of the Securities Act.
REPORTING ACCOUNTANTS KPMG LLP.
SECURITIES ACT the US Securities Act of 1933, as
amended.
SHORT FORM REPORT the short form accountants' report
on the Company prepared by the
Reporting Accountants and
reproduced in Part III of the
Admission Document.
STABILISATION ACTIVITIES the purchase on AIM by Peel Hunt
of Common Shares at the market
price applicable to Common Shares
at the time of such purchase for
the purpose of supporting the
market price of the Common Shares.
STABILISATION PERIOD the period starting at 8:00 a.m.
on the day of Admission and ending
at 5:00 p.m. on the 29th day
following the day of Admission.
5
STABILISATION RETENTION ACCOUNT the account maintained by Peel Hunt
for the purposes of holding the
Stabilisation Withholding
Amount.
STABILISATION SHARES the Common Shares purchased by
Peel Hunt during the Stabilisation
Period pursuant to Stabilisation
Activities.
STABILISATION SHARES PRICE an amount equal to 100.3% x the
Price per Stabilisation Share x
the Stabilisation Shares Quantity
(together with any Tax paid or
payable by Peel Hunt in respect of
the transfer of the Stabilisation
Shares from Peel Hunt to the
Company including stamp duty of
approximately 0.5 per cent. of the
average price per share); and (for
the avoidance of doubt) the
additional 0.3% incorporated
within the 100.3% referred to
above represents an agreed
broker's commission for Peel Hunt
in respect of the Stabilisation
Shares.
STABILISATION SHARES QUANTITY the total number of Common Shares
comprising the Stabilisation
Shares immediately following the
end of the Stabilisation Period.
STABILISATION WITHHOLDING AMOUNT US$9,000,000.
SUBSCRIPTION UNITS the 22,250,000 Units to be
allotted and issued by the
Company, comprising the 5,625,000
Units to be subscribed for by Paul
Anthony Novelly, or his designees,
and the 16,875,000 Units to be
subscribed for by potential
Placees pursuant to the Placing,
but not for the avoidance of doubt
including the 5,625,000 Units to
be subscribed for by Paul Anthony
Novelly, or his designees.
SUPPLEMENTARY ADMISSION DOCUMENT any supplementary admission
document published for and on
behalf of the Company under the
AIM Rules and prepared in
accordance with clauses 18.4 and
18.5.
TAX OR TAXATION any form of taxation whenever
created or imposed and whether of
the United Kingdom or elsewhere,
including all forms of taxation,
impositions, duties (including
stamp duty), contributions and
levies and all penalties, fines,
charges, costs and interest
relating thereto.
TAX AUTHORITY OR TAXATION any revenue, customs,
AUTHORITY governmental, statutory,
provincial, federal or other
fiscal revenue authority competent
to impose, administer and collect
Tax, whether in the United Kingdom
or elsewhere.
TRUST ACCOUNT the trust account created pursuant
to the terms of the Trust
Agreement into which certain
proceeds of the Placing are to be
deposited.
TRUST AGREEMENT the investment management trust
agreement in the agreed form to be
entered into by the Company and
Continental
6
Stock Transfer & Trust Company, as
trustee.
UK NET PROCEEDS The subscription monies paid to
and received by Peel Hunt from UK
Placees, less the commissions owed
to Peel Hunt by the Company in
accordance with clause 11.1, and
as set out at Part I-A of
Schedule 6, but not for the
avoidance of doubt including the
fees and expenses to be paid out
of the Company's working capital
listed at Part II of Schedule 6.
UK PLACEES Placees who have entered into UK
Placing Letters.
UK PLACING LETTERS the subscription agreements, each
with an accompanying form of
acceptance, to be entered into by
prospective Placees who are not US
Persons.
UNITED KINGDOM OR UK the United Kingdom of Great
Britain and Northern Ireland.
UNITS units of one Common Share and one
Warrant.
US GAAP Generally Accepted Accounting
Principles in the United States
(in effect from time to time).
US NET PROCEEDS the subscription monies paid to
and received by CRT from US
Placees, less (i) commissions owed
to CRT by the Company in
accordance with clause 11.1 as set
out at Part IB of Schedule 6, (ii)
the Working Capital Amount, and
(iii) any amount paid to Peel Hunt
in accordance with clause 9.1, but
not for the avoidance of doubt
including the fees and expenses to
be paid out of the Company's
working capital listed at Part II
of Schedule 6.
US PERSONS a US person, as defined in
Regulation S.
US PLACEES Placees who have entered into US
Placing Letters.
US PLACING LETTERS the subscription agreements, each
with an accompanying form of
acceptance, to be entered into by
prospective Placees who are US
Persons.
VAT United Kingdom Value Added Tax.
WARRANTIES the warranties set out in clause 12
and Schedule 2.
WARRANTORS the Company and the Executive
Directors, together with, in
relation to clauses 12 and 13 and
Warranties 16, 17 and 19 of
Schedule 2 only, the Non-Executive
Directors.
WARRANTS the warrants issued by the Company
and comprised in the Units, the
details of which are set out in
the Admission Document.
WORKING CAPITAL AMOUNT US$750,000.
7
WORKING CAPITAL REPORT the working capital report on the
Company dated on or around the
date of this Agreement, prepared
by the Reporting Accountants and
addressed to the Company and CRT
and Peel Hunt.
1.2 Where used in this Agreement:
(a) "SUBSIDIARY", "SUBSIDIARY UNDERTAKING", "PARENT UNDERTAKING",
"FINANCIAL YEAR" and "CONNECTED PERSONS" shall have the
meanings respectively attributed to them by the Act at the
date of this Agreement;
(b) "AFFILIATE" shall have the meaning given to such term
pursuant to Rule 501(b) of the Securities Act; and
(c) "ACTING IN CONCERT" shall have the meaning given in the City
Code on Takeovers and Mergers.
1.3 A reference to any statute or statutory provision or AIM Rule in this
Agreement:
(a) includes any order, instrument, regulation, permission and
direction made or issued under such statute or statutory
provision or AIM Rule or deriving validity from it;
(b) shall be construed as a reference to such statute or
statutory provision as in force at the date of this
Agreement (including, for the avoidance of doubt, any
amendments made to such statute or statutory provision or
AIM Rule that are in force at the date of this Agreement);
and
(c) shall also be construed as a reference to any statute or
statutory provision or AIM Rule of which such statute or
statutory provision or AIM Rule is a re-enactment or
consolidation.
1.4 The headings in this Agreement are for convenience only and shall not
affect its meaning.
1.5 References to a recital, clause, Schedule or paragraph are (unless
otherwise stated) to a recital to, clause of or Schedule to this
Agreement or to a paragraph of the relevant Schedule. The recitals
and Schedules form part of the operative provisions of this
Agreement and references to this Agreement shall, unless the
context otherwise requires, include references to the recitals and
the Schedules.
1.6 A document expressed to be "in the agreed form" shall mean a
document, the terms, conditions and form of which have been agreed
by the Company, CRT and Peel Hunt and a copy of which has been
identified as such and initialled by or on behalf of CRT and Peel
Hunt and the Company (subject to any further amendments which the
Company, CRT and Peel Hunt may subsequently agree).
1.7 Words importing one gender shall (where appropriate) include any
other gender and words importing the singular shall (where
appropriate) include the plural and vice versa.
1.8 In construing this Agreement general words introduced by the word
"other" shall not be given a restrictive meaning by reason of the
fact that they are preceded by words indicating a particular class
of acts, matters or things and general words shall not be given a
restrictive meaning by reason of the fact that they are followed by
particular examples intended to be embraced by the general words.
8
1.9 References to time of day, unless otherwise expressly stated, are to
London (England) times.
1.10 References to a person include an individual, a body corporate, a
corporation, a firm, association, partnership, joint venture,
organisation, institute, trust or agency, whether or not having a
separate legal personality and irrespective of the jurisdiction in
or under the law of which it was incorporated or exists.
2. CONDITIONS
2.1 Subject to this clause 2 and clause 17, the obligations of the
parties under this Agreement are conditional upon satisfaction of
each of the following conditions, in each case by the relevant time
and/or date referred to below (or, unless otherwise specified, such
later time and/or date as CRT, Peel Hunt and the Company may
determine, being no later than the Long Stop Date):
(a) an electronic copy of the Admission Document being submitted
to the London Stock Exchange as required by Rule 5 of the
AIM Rules together with the completed AIM Application (in
the form specified by the AIM Rules) and the fee payable in
respect of the AIM Application (with the accompanying
declaration from Peel Hunt pursuant to Rule 39 of the AIM
Rules) by not later than 9.00 a.m. on 7 July, 2006 (or such
other time and/or date as the Company and Peel Hunt may
agree); and
(b) the performance by the Company of its obligations under this
Agreement so far as the same fall to be performed prior to
Admission; and
(c) the delivery by the Company to Bingham McCutchen LLP on
behalf of Peel Hunt of a letter in the form set out in
Schedule 5 signed by a Director or duly authorised officer
on behalf of the Company by not later than 5.00 p.m. on the
Dealing Day immediately prior to the expected date of
Admission; and
(d) Admission occurring not later than 8.00 a.m. on 12 July,
2006; and
(e) the Nominated Adviser Agreement being entered into by not
later than the date of this Agreement; and
(f) the London Stock Exchange granting a derogation in writing
from the requirement for (i) electronic settlement of
securities contained in Rule 36 of the AIM Rules in respect
of the Common Shares and the Warrants, and (ii) annual
consent from the Company's shareholders to the Company's
investing strategy contained in Rule 8 of the AIM Rules
being delayed in accordance with the description of such
derogation contained in the Admission Document.
2.2 The Conditions set out in clauses 2.1(a) and 2.1(b) may be waived
in whole or in part by CRT and Peel Hunt in their absolute
discretion by notice in writing to the Company. The Company, CRT
and Peel Hunt may agree in writing to extend the time for
satisfaction of any Condition (but in any event no later than the
Long Stop Date).
2.3 The Company and the Directors undertake to each of CRT and Peel
Hunt to use all their respective reasonable endeavours to fulfil
or, at the Company's own expense, to procure the fulfilment of the
Conditions by the times and dates specified in clause 2.1 and CRT
and Peel Hunt agree to provide the Company and the Directors, where
applicable, with their reasonable assistance in connection
therewith.
2.4 Subject to the provisions of clause 18.3, if any Condition shall
not have been fulfilled (or waived) on or before the date or time
specified for the fulfilment thereof (or at such later time
9
and/or date as CRT, Peel Hunt and the Company may agree (but in any
event no later than the Long Stop Date)) or becomes incapable of
being fulfilled (and is not so waived) no party shall be obliged to
perform any further obligations under this Agreement (other than
under or by reference to this clause 2.4 and clauses 1, 11.2, 11.3,
13, 18, 19, 20, 21 and 22 which shall remain in full force and
effect) and in such event (except in relation to any breaches prior
to the relevant date) no party to this Agreement shall have any claim
against any other party to this Agreement for costs, damages,
compensation or otherwise.
3. SUBSCRIPTION FOR UNITS
3.1 The Company hereby irrevocably appoints (i) CRT to act as its
placing agent to US Persons and to Placees located in Switzerland
and Canada, and (ii) Peel Hunt to act as its placing agent to
non-US Persons, in each case for the purpose of carrying out the
Placing and arranging subscribers for the subscription of the
Subscription Units at the Placing Price in the manner set out in
this Agreement and the Placing Documents.
3.2 CRT and Peel Hunt hereby accept their respective appointments under
clause 3.1 and agree as agents for the Company, to use their
reasonable endeavours to procure subscribers in cash for the
Subscription Units upon and subject to the terms and conditions of
the Placing Documents at the Placing Price.
3.3 The Company confirms that the respective appointments under clause
3.1 confer on CRT and Peel Hunt respectively all powers,
authorities and discretions on behalf of the Company which are
necessary for, or reasonably incidental to, the carrying out of the
Placing to the extent that they relate to the procuring of
subscribers for the Subscription Units, and undertakes to ratify
and confirm everything which CRT and Peel Hunt lawfully do in
carrying out or exercising their responsibilities with respect to
such appointments, powers, authorities and discretions, not
inconsistent with the Admission Document, the Presentation
Materials and the Placing Documents. The Company authorises CRT and
Peel Hunt to give instructions to the Registrar in relation to the
Placing and the allotment of Subscription Units to Placees in
accordance with clause 7.
3.4 The Company undertakes to do all such other acts as may be
reasonably required to vest the Subscription Units in subscribers
procured by CRT or Peel Hunt, or otherwise as CRT or Peel Hunt may
reasonably direct (as the circumstances shall require).
3.5 The Company undertakes to each of CRT and Peel Hunt not to create
any adverse interest over the Subscription Units to be allotted and
issued by it pursuant to this Agreement.
3.6 The subscription price for each of the Subscription Units shall be
the Placing Price, which shall be satisfied in cash in accordance
with clauses 9 and 10.
3.7 The Common Shares subscribed for as part of the Subscription Units
shall be issued fully paid, free from all liens, mortgages,
charges, encumbrances and other third party rights and will, as
from the date when they are issued and are fully paid up, rank in
full for all dividends and other distributions declared, made or
paid on the Common Shares after Admission and otherwise rank pari
passu in all respects with, and be identical to, the existing
Common Shares then in issue.
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4. [CLAUSE INTENTIONALLY OMITTED]
5. PRICE STABILISATION
5.1 Subject to the other provisions of this clause 5, if at any time
during the Stabilisation Period (and for so long as) the market
price of one Common Share is lower than $7.20, Peel Hunt (wherever
practicable following consultation with CRT and the Company) may
(but shall not be obliged to) perform Stabilisation Activities.
5.2 Any Stabilisation Shares purchased by Peel Hunt shall be purchased
using Peel Hunt's own funds (and not any funds (including the
Stabilisation Withholding Amount) held by Peel Hunt on behalf of
the Company) and shall be owned by Peel Hunt (both as to legal and
equitable title) until transferred to the Company pursuant to
clause 5.7.
5.3 Peel Hunt shall not:
(a) purchase or agree to purchase Common Shares pursuant to
Stabilisation Activities having an aggregate Stabilisation
Shares Price greater than the Stabilisation Withholding
Amount;
(b) purchase Warrants pursuant to Stabilisation Activities; or
(c) be obliged to perform any Stabilisation Activities to the
extent such Stabilisation Activities would (or, in Peel
Hunt's absolute discretion, may) be prohibited by applicable
laws and/or regulations (including, without limitation, the
provisions of the Act, FSMA, the AIM Rules and/or any other
rules and/or regulations promulgated by the FSA).
5.4 The Company undertakes on the third Dealing Day following performance
of any Stabilisation Activities by Peel Hunt or at the end of the
Stabilisation Period (each, a "STABILISATION SETTLEMENT DATE") to
purchase from Peel Hunt and Peel Hunt undertakes to sell to the
Company all of the Stabilisation Shares at the Stabilisation Shares
Price, but not in an amount exceeding the Stabilisation Withholding
Amount.
5.5 Within 2 Dealing Days of the end of the Stabilisation Period, Peel
Hunt shall notify the Company of the Stabilisation Shares Price
(specifying the Stabilisation Shares Quantity and the Price per
Stabilisation Share) and such amount shall be immediately due and
payable on the date of such notice.
5.6 Peel Hunt shall, on any Stabilisation Settlement Date, set-off
(from the account maintained in accordance with clause 9.2(a)(ii))
Peel Hunt's obligation to pay to the Company an amount of the
Stabilisation Withholding Amount equal to the Stabilisation Shares
Price (as referred to in clause 9.3.) in full and final discharge
of the Company's obligation to pay the Stabilisation Shares Price
to Peel Hunt.
5.7 Within five Dealing Days of receipt of full payment from the
Company in cleared funds of the amounts due to Peel Hunt pursuant
to this clause 5 which, unless otherwise agreed by the Company,
shall be by way of the agreed set-off referred to in clause 5.6,
Peel Hunt shall (or shall procure another person to) send to the
Company duly executed stock transfer forms, all relevant share
certificates and such other documentation as the Company may
reasonably require in order to transfer all of the Stabilisation
Shares to the Company.
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6. AIM APPLICATION
6.1 The Company shall and each Executive Director shall procure that
the Company shall immediately following the execution of this
Agreement deliver, or procure that there are delivered to Peel
Hunt, the documents specified in Schedule 3 at the times specified
in, and otherwise in accordance with, the requirements of that
Schedule.
6.2 Peel Hunt may, in its absolute discretion, waive the requirement
that the Company deliver to it any document required to be so
delivered pursuant to clause 6.1 and Schedule 3 or may extend the
time and date for delivery of any such document. Any waiver or
extension may be granted by Peel Hunt subject to such conditions as
it may in its absolute discretion consider appropriate.
6.3 The Company shall promptly make the AIM Application through Peel
Hunt, as Nominated Adviser, and shall comply with all reasonable
requirements which the London Stock Exchange shall make of it so as
to enable the AIM Application to be granted and the Company
undertakes to each of CRT and Peel Hunt that it shall use its
reasonable endeavours to achieve Admission by the date specified in
clause 2.1(d) and will at its own expense supply or procure to be
supplied, all such information and documentation, give or procure
the giving of all such undertakings, execute, or procure the
execution of all such documents, pay all such fees and generally
do, or procure to be done, all such things, in each case as may be
necessary, or properly required by the London Stock Exchange, in
connection therewith and will comply fully with all relevant
provisions of the Act, FSMA, the AIM Rules and/or any other rules
and/or regulations promulgated by the FSA, applicable thereto.
6.4 The Company and Peel Hunt shall also procure (so far as is within
their power of procurement) that:
(a) the information specified in Schedule One to the AIM Rules,
in the form specified, is submitted to the London Stock
Exchange as required by Rule 2 of the AIM Rules not later
than 9.00 a.m. on 7 July, 2006;
(b) one copy of the Admission Document and the completed
application form (in the form specified by the AIM Rules)
are delivered to the London Stock Exchange as required by
Rule 5 of the AIM Rules not later than 9.00 a.m. on 7 July,
2006;
(c) copies of the Admission Document are published in accordance
with the requirements of the AIM Rules;
(d) by 5.00 p.m. on the day before Impact Day, resolutions of
the board of directors of the Company conditionally
allotting the Common Shares and Warrants, conditional upon
Admission, are delivered to CRT and Peel Hunt; and
(e) any and all documents as are reasonably required by CRT and
Peel Hunt for the purposes of Admission are made available
to them at the Company's expense.
6.5 Peel Hunt, in its capacity as Nominated Adviser, shall provide to
the Company appropriate advice and guidance for the purposes of
obtaining approval of the AIM Application and shall comply with
such of the AIM Rules as are applicable to it in its capacity as
Nominated Adviser for the purposes of Admission in completing and
submitting to the London Stock Exchange the declaration required
under Rule 39 of the AIM Rules in connection therewith, provided
that Peel Hunt shall only be required to issue such declaration, in
its sole discretion, if it is satisfied that the Company has
complied with all applicable AIM Rules in relation to Admission.
12
6.6 Peel Hunt, in its capacity as Nominated Adviser, shall provide to
the Company appropriate advice and guidance for the purposes of
obtaining from the London Stock Exchange the derogations referred
to at clause 2.1(f), but shall have no obligation or liability to
the Company or any other person if the London Stock Exchange
refuses to grant such derogations for whatever reason.
6.7 The Company shall provide the Registrar with all necessary
authorisations and (to the extent it is reasonably able)
information to enable the Registrar to perform its duties as
registrar in accordance with and as contemplated by this Agreement,
the Placing Documents and any agreement between the Company and the
Registrar in relation to the AIM Application and Admission. Prior
to Admission, Peel Hunt confirms that it shall liaise with the
Registrar on behalf of the Company and the Company confirms that it
shall, upon request by Peel Hunt, provide such information to the
Registrar as may reasonably be required.
6.8 The Company shall make available free of charge to the public for
not less than one month from the date of Admission a copy of the
Admission Document at the offices of Peel Hunt and the London
offices of the Company's solicitors, Mintz Levin Cohn Ferris
Glovsky and Popeo PC, to enable the Company to comply with its
obligations under Rule 3 of the AIM Rules.
7. ALLOTMENT
7.1 The Directors undertake that prior to Admission they will convene
and hold a meeting of the board of Directors of the Company for the
purpose of considering and passing all resolutions required in
connection with the allotment and issue of the Subscription Units,
the Common Shares and the Warrants (such resolutions to be in a
form approved by CRT and Peel Hunt) and all resolutions otherwise
required in connection with the Placing and Admission and will
ensure that all such resolutions are or will be duly and validly
passed.
7.2 The Company irrevocably undertakes to each of CRT and Peel Hunt
that it shall, upon receipt from CRT and Peel Hunt of their
respective lists of subscribers for the Subscription Units pursuant
to clause 8.3, allot the Common Shares and Warrants comprised in
the Subscription Units at the Placing Price to the Placees in the
numbers and proportions set out in such lists (including to CRT or
Peel Hunt as nominee for all or any of the subscribers), subject to
the Certificate of Incorporation and Bylaws of the Company and
conditional only upon Admission occurring.
8. PLACING
8.1 The Company authorises and directs Peel Hunt, and Peel Hunt agrees,
to arrange for the release of the Press Release to the press as soon
as practicable following 8.00 a.m. on the date of Admission.
8.2 Within one day of the date of this Agreement, CRT and Peel Hunt
shall, to the extent that they have not already done so, dispatch
the Placing Letters and the draft Admission Document to such
persons as they determine in their absolute discretion and use
their reasonable endeavours to place the Subscription Units at the
Placing Price with Placees selected by them (which may include CRT
and Peel Hunt and/or members of the respective groups of companies
of which they are a member) on and subject to the terms set out in
the Placing Letters.
8.3 CRT and Peel Hunt shall by no later than noon (US Eastern Standard
Time) on the Dealing Day after the date of the Agreement notify the
Company and/or the Registrar (as appropriate)
13
of the names, addresses and entitlements to Subscription Units of the
Placees procured by CRT and Peel Hunt respectively to subscribe for
the Subscription Units.
8.4 Peel Hunt shall be entitled to make for itself or on behalf of any
Indemnified Person any announcement concerning the Placing as may
in its reasonable and sole opinion be necessary in order to comply
with its obligations and duties as a Nominated Adviser if, in Peel
Hunt's sole opinion (acting reasonably), the Placing Documents
contain a misleading statement for the purposes of section 397 of
the FSMA.
8.5 CRT and Peel Hunt shall receive all payments on behalf of the
Company from US Placees and UK Placees respectively, and hold and
apply such amounts in accordance with clause 9.
9. PAYMENT TO THE COMPANY
9.1 In the event that as at the date of Admission, the aggregate
subscription monies paid to Peel Hunt by UK Placees is less than
the aggregate of (i) the commissions owed to Peel Hunt under clause
11.1 (a) and (b), and (ii) the Stabilisation Withholding Amount,
CRT shall on behalf of the Company, pay to Peel Hunt (by
telegraphic transfer) out of the aggregate subscription monies paid
to CRT by US Placees, an amount equal to such difference (plus the
costs of such transfer), to be applied by Peel Hunt in payment of
such fees and commissions and towards payment of the Stabilisation
Withholding Amount into the Stabilisation Retention Account
pursuant to clause 9.2(a).
9.2 By 5.00 p.m. (New York time) on the date of Admission, CRT shall
pay the Working Capital Amount to the Company out of the aggregate
subscription monies CRT has received from US Placees. Subject to
and following the Company complying with its obligations under
clause 11 (and specifically without limitation, with its obligation
to pay corporate finance fees under clause 11.1(b), all fees and
expenses referred to in clause 11.2, and any payments required in
accordance with clause 11.3) and subsequent to the making of any
payments by CRT pursuant to clause 9.1 and the payment of the
Working Capital Amount to the Company:
(a) Peel Hunt shall transfer on behalf of the Company:
(i) the UK Net Proceeds less the Stabilisation
Withholding Amount to the Trust Account provided
that amount is greater than zero; and
(ii) the Stabilisation Withholding Amount into a
segregated, non-interest bearing account maintained
by Peel Hunt pending the end of the Stabilisation
Period (being the Stabilisation Retention Account),
which shall be distributed in accordance with
clause 9.3 below; and
(b) CRT shall transfer on behalf of the Company the US Net
Proceeds to the Trust Account,
in each case, as soon as practicable following Admission and in any
event not later than 5.00 p.m. on the first Dealing Day immediately
following Admission. Such payment for the Subscription Units
(subject to the deductions referred to above) shall occur by
telegraphic transfer in immediately available funds in accordance
with instructions provided by the Company in writing to CRT and
Peel Hunt not less than two Dealing Days prior to Admission (which
the Company undertakes so to provide).
9.3 Within 3 Dealing Days of the end of the Stabilisation Period (but
subject to the agreed set-off described in clause 5.6 and the
deductions described in this clause 9) Peel Hunt shall, on
14
behalf of the Company, transfer to the Trust Account, an amount equal
to the Stabilisation Withholding Amount less the Stabilisation Shares
Price.
9.4 The Company:
(a) agrees that clause 9.3 sets out the Company's sole and
complete entitlement to receive (and Peel Hunt's sole and
complete obligation to pay to the Company) all or part of
the Stabilisation Withholding Amount; and
(b) undertakes that it will not create (or permit the creation
of) any charge, mortgage, lien, pledge, encumbrance or other
third party right over or in respect of all or any part of
the Stabilisation Withholding Amount.
9.5 Payment of such monies in the manner and to the accounts mentioned
in clauses 9.1 to 9.4 shall constitute a complete discharge of the
payment and Placing obligations of CRT and Peel Hunt pursuant to
this Agreement.
10. SETTLEMENT
10.1 The Company agrees with CRT and Peel Hunt that it will, on or
before Admission, instruct the Registrar to promptly register
(without registration fee) the persons named by CRT and Peel Hunt
(in respect of such persons from whom CRT and Peel Hunt have
received signed binding Placing Letters confirming their
subscription for Common Shares and Warrants) in accordance with
clause 8.3 as the holders of Common Shares and Warrants,
conditional only on Admission taking place.
10.2 The Company shall prior to Admission provide, or procure the
provision of, all information and authorisations required by the
Registrar to perform its duties as registrar in accordance with and
as contemplated by the terms of this Agreement, the Placing
Documents and any agreement between the Company and the Registrar.
10.3 As soon as practicable following their registration, the Company
shall procure that the Registrar issue Certificates to those
persons registered as holders of Common Shares and Warrants
pursuant to clause 10.1 above. These Certificates shall be
dispatched either to the holders directly or to CRT and Peel Hunt
respectively, as the Company, CRT or Peel Hunt may instruct the
Registrar.
10.4 The Company and, if any Certificates are dispatched by them to the
Registrar, CRT and Peel Hunt, shall procure that Certificates are
delivered to all holders registered pursuant to clause 10.1 not
later than five Dealing Days following Admission.
11. FEES, COMMISSIONS AND EXPENSES
11.1 In consideration of CRT and Peel Hunt's respective covenants and
obligations under this Agreement and CRT and Peel Hunt's respective
services in connection with the Placing and the AIM Application,
the Company shall, subject to clause 11.6, pay to CRT and Peel Hunt
on the date of Admission:
(a) a basic commitment commission of six per cent. (6%) of the
aggregate value of the Subscription Units in respect of
which Placees have been secured at the Placing Price
apportioned between CRT and Peel Hunt as follows:
15
(i) CRT to receive a basic commitment commission of
US$7,290,000, less the deferred commission of
US$2,430,000, to be deposited in the Trust Account,
referred to in 11.1(c) below;
(ii) Peel Hunt to receive a basic commitment commission
of US$810,000, less the deferred commission of
US$270,000 to be deposited in the Trust Account,
referred to in 11.1(c) below,
and CRT and Peel Hunt are hereby authorised to deduct an
amount equal to the aggregate of such commissions from the
payments to be made by CRT and Peel Hunt in accordance
with this Agreement; and
(b) corporate finance fees of US$1,350,000 to CRT and US$200,000
to Peel Hunt,
provided that,
(c) CRT and Peel Hunt have agreed to defer US$2,700,000 of their
commitment commission payable pursuant to clause 11.1(a)
above until the consummation of a Qualified Business
Combination (as defined and described in more detail in the
Admission Document) such deferred commissions comprising
US$2,430,000 commission to be deferred by CRT and US$270,000
to be deferred by Peel Hunt to be deposited in the Trust
Account and to be paid to CRT and Peel Hunt upon the
consummation of such Qualified Business Combination, in
accordance with the terms of the Trust Agreement;
11.2 The parties acknowledge that the Company is not expected to bear
any VAT as a result of the Placing and Admission. However, to the
extent that any VAT is payable, the Company shall bear the cost of
such payment. The Company shall bear all costs, charges and
expenses of, or incidental to, the satisfaction of the Conditions,
the Placing, the AIM Application, the issue of the Subscription
Units and the arrangements referred to in, or contemplated by, this
Agreement (together with any VAT chargeable thereon) including,
without limitation, all fees and expenses payable in connection
with Admission, the London Stock Exchange AIM admission fees, all
expenses of the Registrar, printing and advertising expenses,
postage and all legal, accountancy, actuarial and other
professional fees and expenses which shall include the fees and
expenses of CRT and Peel Hunt's legal advisers, but only up to a
maximum amount of US$75,000, all as set out at Part I-B, and Part
II-B of Schedule 6. The Company shall immediately upon request by
CRT and Peel Hunt reimburse to CRT and Peel Hunt, as the case may
be, the amount of any such costs, charges and expenses which CRT
and Peel Hunt may have paid.
11.3 Where, pursuant to the Placing and Admission, this clause 11 or
clause 13, a sum is payable to CRT or Peel Hunt, in respect of any
cost or expense incurred by CRT or Peel Hunt and that cost or
expense includes an amount in respect of VAT, the Company shall(if
applicable) in addition pay to CRT or Peel Hunt, as the case may
be, in respect of VAT:
(a) where the payment (or any part of it) constitutes the
consideration (or any part of the consideration) for any
supply by CRT or Peel Hunt, or anything which is treated for
VAT purposes as a supply by CRT or Peel Hunt to the Company,
such amount as equals any VAT properly payable thereon and
on such VAT, if any, as is referred to in clause 11.3(b);
(b) (except where the payment falls within clause 11.3(c)) where
the payment is in respect of costs, charges or expenses
incurred by CRT or Peel Hunt, such amount as equals any VAT
charged to or incurred by CRT or Peel Hunt in respect of
that cost,
16
charge or expense and which CRT or Peel Hunt certifies is
not recoverable by CRT or Peel Hunt by repayment or credit
(such certificate to be conclusive in the absence of
manifest error); and
(c) where the payment is in respect of costs, charges or
expenses incurred by CRT or Peel Hunt as agent for the
Company, such amount as equals the amount included in the
costs, charges or expenses in respect of VAT,
such payments to be made within seven days of CRT or Peel Hunt, as
the case may be, requesting the same and against product by CRT or
Peel Hunt of an appropriate tax invoice.
11.4 In the event that any stamp duty, stamp duty reserve tax or similar
tax is payable in respect of the Common Shares or Warrants to
ensure that those persons becoming entitled pursuant to this
Agreement to be registered as holders of the same be so registered,
such duty shall be borne by the Placees.
11.5 Notwithstanding that CRT or Peel Hunt are acting as agents for the
Company in connection with the Placing, each of them may retain any
commissions payable to it, pursuant to clause 11.1 (subject to the
deferred commissions referred to in clause 11.1(c). Any
Subscription Units which each of CRT and Peel Hunt purchases or
subscribes as principal may be retained or dealt in by it for its
own use and benefit.
11.6 Notwithstanding any other provision of the Agreement, the fees,
costs, charges, commissions and expenses payable by the Company to
CRT and Peel Hunt hereunder:
(a) under clause 11.1 shall be due and payable upon Admission,
save that the deferred fees and commissions referred to in
clause 11.1(c) will be payable upon consummation of a
Qualified Business Combination (as such term is defined in
the Admission Document);
(b) under any other part of this clause 11 shall be due and
payable upon the earlier of Admission, the Long Stop Date or
a termination of this Agreement under clause 18;
(c) are not in addition to the fees, costs, charges, commissions
and expenses payable under the Engagement Letters and
represent all the fees and expenses payable by the Company
to CRT and Peel Hunt in respect of the Placing; and
(d) no fees or commissions whatsoever shall be payable with
regard to the US$45 million subscription of Paul Anthony
Novelly or his designees for Subscription Units in the
Placing, as is described in more detail in the Admission
Document.
12. WARRANTIES
12.1 The Warrantors jointly and severally warrant to CRT and Peel Hunt
that each Warranty is true, accurate and not misleading at the date
of this Agreement, save that the Directors severally warrant to CRT
and Peel Hunt in respect of clause 12.3, and Warranties 16, 18 and
19 of Schedule 2 as at the date of this Agreement.
12.2 The Warrantors severally agree not to cause, and severally to use
all reasonable endeavours not to permit, any event to occur or
allow any omission which would render any of the Warranties untrue,
inaccurate or misleading if it were to be repeated immediately
prior to Admission by reference to the facts and circumstances then
subsisting.
17
12.3 Each Director further severally warrants to CRT and Peel Hunt that
the responses given by him to the directors' questionnaire and the
information set out in the Admission Document relating to him and
his connected persons are true and accurate and each is not by
itself or by omission misleading and that all information relating
to himself which would reasonably be considered material for
disclosure in the Admission Document has been disclosed to CRT and
Peel Hunt.
12.4 Without prejudice to the provisions of clause 18.4 each of the
Warrantors undertakes to notify CRT and Peel Hunt in writing,
immediately upon him or it becoming aware of any fact or
circumstance, which would or is likely to indicate at any time up
to Admission:
(a) that any of the Warranties was untrue, inaccurate or
misleading at the date of this Agreement;
(b) that any of the Warranties would be untrue, inaccurate or
misleading if it were to be repeated immediately prior to
Admission by reference to the facts and circumstances at
that time subsisting; or
(c) any other facts or circumstances which occur or arise at any
time prior to Admission which is or may constitute a
significant change or new matter for the purposes of the AIM
Rules.
12.5 Where any statement in the Warranties is qualified by the
expression "to the best of the knowledge, information and belief of
the Warrantors" or "so far as the Warrantors are aware" or any
similar expression, each Warrantor shall be deemed to have
knowledge of:
(a) other than in respect of the Warranty given at clause 12.3
and Warranties 18 and 19 of Schedule 2, anything of which
the other Warrantors have knowledge or are deemed by
paragraphs (b) or (c) below to have knowledge;
(b) anything of which he ought reasonably to have knowledge
given his particular position in and responsibilities to the
Company; and
(c) anything of which he would have had knowledge had he made
due and careful enquiry before giving the Warranties.
12.6 The Warranties shall continue in full force and effect
notwithstanding the completion of all matters and arrangements
referred to in or contemplated by this Agreement.
12.7 The Warranties shall be qualified to the extent of any facts or
information fairly disclosed in the Admission Document, or
otherwise fairly disclosed pursuant to the terms of this Agreement.
12.8 The Warrantors acknowledge that CRT and Peel Hunt are entering into
this Agreement in reliance upon each of the Warranties which has
also been given with the intention of inducing CRT and Peel Hunt to
enter into this Agreement.
12.9 Each of the Warranties shall be construed separately and shall not
be limited or restricted by reference to or inference from the
terms of any other of them or any term of this Agreement (other
than clauses 12.7 and 12.10).
12.10 The liability of the Warrantors shall be limited as set out in
Schedule 4.
18
12.11 References in this Agreement to a warranty or undertaking being (or
not being) true and accurate or being (or not being) misleading
shall mean material in the context of the Company or the Placing.
12.12 To the extent that a Supplementary Admission Document is published
after the date of this Agreement in accordance with clauses 18.4
and 18.5, all references to the Admission Document in this clause
12 and Schedule 2 shall be taken to include any such Supplementary
Admission Document and the Warranties shall be deemed to be
qualified by any statement made therein with effect from the date
of publication of such Supplementary Admission Document.
13. INDEMNITY
13.1 The Company agrees, and each of the Directors severally agrees to
indemnify CRT and Peel Hunt (for themselves and as trustees for
each of the other Indemnified Persons) against and to pay on demand
an amount equal to all Losses which any Indemnified Person may pay,
suffer or incur indirectly or directly (including, without
limitation, those paid, suffered or incurred in investigating,
seeking advice as to, defending or disputing any such claim,
action, demand, proceedings, investigation or liability and in
enforcing its rights under this clause) and which in any case is
occasioned by or results from or is attributable to or would not
have arisen but for:
(a) the issue or despatch of the Placing Documents (or any of
them) in breach of any applicable law or regulation;
(b) the allotment and issue of the Subscription Units in breach
of any applicable law or regulation;
(c) any breach or alleged breach (other than a breach alleged
only by an Indemnified Person) by the Company of any of the
Warranties or breach of any of the other provisions of, or
their respective obligations or undertakings under, this
Agreement or otherwise in connection with the Placing;
(d) the Placing Documents not containing, or being alleged not
to contain, all information required to be stated therein
(including by law or regulation and, for the avoidance of
doubt, the AIM Rules) or any statement therein (whether of
fact, opinion, expectation or intention and including any
forecast, projection or estimate) being or being alleged to
be untrue, inaccurate, incomplete or misleading or as having
been made negligently or otherwise without the required
standard of skill and care or reasonableness expected of a
director of an AIM listed company;
(e) the approval or issue by CRT or Peel Hunt of any invitation
or inducement to engage in investment activity (as defined
in section 21 of the FSMA) relating to the Placing;
(f) the proper performance by CRT or Peel Hunt of its services
to the Company in connection with the Placing and the AIM
Application or the content, preparation, publication and
distribution of any of the Placing Documents; or
(g) any failure or alleged failure by the Company or any of its
agents, employees, officers or professional advisers (other
than the Indemnified Persons) to comply with the FSMA, the
AIM Rules, the Securities Act, the Exchange Act or any other
requirements of statute or statutory regulations or laws or
regulations of any country in relation to the Placing, the
publication and despatch of the Placing Documents, this
19
Agreement, the AIM Application or Admission (including any
requirements imposed upon it by the London Stock Exchange in
connection with the AIM Application).
13.2 The Indemnity contained in clause 13.1:
(a) shall not extend to any Losses to the extent that they are
agreed by CRT or Peel Hunt or finally determined by a court
of competent jurisdiction to arise out of the negligence,
wilful default or fraudulent or criminal act, or fraudulent
misrepresentation of any Indemnified Person or as a result
of a breach by any Indemnified Person of any duties and
obligations owed by that Indemnified Person under the AIM
Rules, the rules of the FSA or under the regulatory system
established pursuant to the FSMA, under the Securities Act
or the Exchange Act or from the breach by CRT or Peel Hunt
of their respective obligations under this Agreement, or any
other agreement with the Company or its Directors
(including, to the extent it continues and survives, the
Engagement Letter between the Company and Peel Hunt;
(b) shall not apply to the extent prohibited by law; and
(c) shall not extend to any Tax paid or payable by or on behalf
of Peel Hunt or CRT on any fees or commissions received or
payable by them pursuant to clause 11.
13.3 Subject to the provisions of Schedule 4, the Indemnity set out in
clause 13.1 shall remain in full force and effect notwithstanding
the completion of all matters and arrangements referred to in or
contemplated by this Agreement or the Placing Documents.
13.4 The Company undertakes and each Director severally undertakes to
each Indemnified Person that no claim shall be made against any of
the Indemnified Persons (and that no Indemnified Person shall have
any liability (whether direct or indirect, in contract, tort or
otherwise)) by the Company or any of its Associates to recover any
Losses which the Company or any of its Associates may suffer or
incur by reason of or arising out of the Placing by CRT and Peel
Hunt of the Subscription Units, the performance of CRT and Peel
Hunt's other obligations under this Agreement, the issue of the
Subscription Units or the publication or despatch of the Placing
Documents, unless and except to the extent that such Losses arise
as a result of a breach by CRT or Peel Hunt of their respective
obligations under this Agreement or the fraudulent or criminal act,
fraudulent misrepresentation, negligence or wilful default of such
Indemnified Person or as a result of a breach by such Indemnified
Person of any duties and obligations owed by that Indemnified
Person under the rules of the FSA, the AIM Rules, the Exchange Act,
the Securities Act, under this Agreement or any other agreement
with the Company and its Directors (to the extent it is continuing)
or under the regulatory system established pursuant to the FSMA.
13.5 For the avoidance of doubt, should any amount paid or payable under
this Agreement (excluding the fees and commissions payable under
clause 11) to CRT, Peel Hunt or any of the other Indemnified
Persons be itself subject to tax in the hands of the recipient or
be required by law to be paid under any deduction or withholding,
the person making such payment shall pay such sum as will after any
such tax, deduction or withholding leave the recipient with the
same amount as he would have had if no such tax had been payable
and no deduction or withholding had been made, and such payments
and adjustments shall be made as may be necessary to give effect to
this clause 13.5.
13.6 Provided the relevant Indemnified Person is entitled to be
indemnified pursuant to this clause 13, the Indemnity set out in
clause 13.1 shall extend to all reasonable costs, charges and
expenses (including without limitation all reasonable legal fees
and expenses) which any Indemnified Person may incur or bear in
disputing any claim made against it or him or in
20
establishing any claim on its or his part under the provisions of
this clause 13 or in seeking advice as to any claim in respect of
which it or he is entitled to be indemnified pursuant to this clause
13.
13.7 CRT and Peel Hunt have entered into this clause 13 for themselves and
as trustee for each Indemnified Person on the following basis:
(a) only CRT or Peel Hunt, as the case may be, may decide
whether or not to enforce an Indemnified Person's right
under the trust (and only it may decide the terms and
conditions of that enforcement) and investigate a matter, or
give information to an Indemnified Person, in connection
with the trust;
(b) notwithstanding the trust, CRT or Peel Hunt may enter into
an agreement, arrangement or transaction with a person
(including, without limitation, the Company) and may deal
with his or its rights under this Agreement without regard
to an Indemnified Person's interest and is not liable to
account to an Indemnified Person for any benefit realised by
that agreement, arrangement, transaction or dealing; and
(c) CRT and Peel Hunt are not liable to another Indemnified
Person for any of its acts or omissions as trustee.
13.8 [Intentionally deleted].
13.9 CRT and Peel Hunt shall use reasonable endeavours to procure that
any Indemnified Person will, to the extent lawful, promptly give
written notice to the Company as soon as practicable after it
becomes aware of:
(a) any actual or potential claim which may give rise to a
liability upon the Company under the Indemnity given to the
Indemnified Persons pursuant to this clause 13; or
(b) any other matter which is likely to give rise to such
liability,
provided that no failure or delay by an Indemnified Person in
giving written notice shall relieve the Warrantors of their
obligations unless (and only to the extent that) the Warrantors
have been materially prejudiced by such failure or delay (and
non-disclosure by reason of legal or regulatory restriction shall
not constitute failure by an Indemnified Person).
13.10 CRT and Peel Hunt shall have the right to separate legal counsel of
their own choosing and will consult with the Company in relation to
any actual or potential claim by a third party or other matter
notified to the Company in accordance with clause 13.9 (the
"INDEMNITY CLAIM") and will thereafter maintain consultation with
the Company on all material aspects of the matters or circumstances
giving rise to the Indemnity Claim and shall provide the Company
with such information and copies of such documentation relating to
the Indemnity Claim as the Company and the Directors may reasonably
request. In relation to any Indemnity Claim, CRT and Peel Hunt will
either:
(a) allow the Company at its own expense and in its absolute
discretion to avoid, dispute, resist, compound or defend the
Indemnity Claim in the name and on behalf of CRT and Peel
Hunt or any other Indemnified Person and to have conduct of
any appeal or incidental negotiations; or
(b) at the request of the Company for itself and, in so far as
it is authorised and it is reasonably practicable for it so
to do, on behalf of any other person, take or procure that
the Indemnified Person take such action as it deems
necessary to avoid, dispute,
21
resist, appeal or compromise any Indemnity Claim, subject to
CRT and Peel Hunt being indemnified and secured to its/their
reasonable satisfaction by the Company against all losses,
costs, damages and expenses which may be thereby incurred.
Notwithstanding the aforesaid, if the Warrantors have committed any
acts or omissions which constitute fraudulent conduct, CRT and Peel
Hunt may without reference to the Warrantors pay, settle or otherwise
deal with the Indemnity Claim as it feels or they feel (as the case
may be) fit.
13.11 Notwithstanding any rule of law or equity to the contrary, any
release, waiver or compromise or other arrangement of any kind
whatsoever which CRT and Peel Hunt or any other Indemnified Person
may agree to or effect as regards one or more of the Warrantors in
connection with this Agreement and, in particular (but without
limitation), the Indemnity shall not affect the rights of the
Indemnified Person as regards any other of such parties.
13.12 If CRT or Peel Hunt recovers from some other person and actually
receives payment of any sum which compensates it for any Loss in
respect of any matter giving rise to a claim under the Warranties
or under clause 13.1, then either:
(a) the amount payable by the Warrantors in respect of such
claim shall be reduced by an amount equal to the sum so
recovered and actually received by the Indemnified Person
(less the reasonable costs and expenses of recovering it and
any Taxation payable by the Indemnified Person as a result
of its receipt); or
(b) if an amount shall already have been paid to the Indemnified
Person by any of the Warrantors in respect of such claim,
there shall be repaid to the relevant Warrantor an amount
equal to the amount so recovered and actually received by
the Indemnified Person (less the reasonable costs and
expenses of its recovery and any Taxation payable by the
Indemnified Person as a result of its receipt) or (if less)
such amount as has already been paid by the Warrantors to
the Indemnified Person in respect of such claim.
13.13 The Warrantors confirm that they have given to CRT and Peel Hunt
written notice of any express financial limitation of liability by
any of the Company's advisers in existence at the date of this
agreement. If the Warrantors have accepted (or subsequently accept)
any such limitation then any liability which any Indemnified Person
may have to the Company (but for this clause 13.13) for loss
suffered in connection with the performance of its obligations and
services hereunder or otherwise in connection with the Admission or
Placing shall be reduced if such loss would have been recoverable
by the Company from a third party but for an agreement between that
party and the Company which limits that party's liability to the
Company. Such reduction shall be to the extent that such agreement
has the effect of reducing the ability of the Indemnified Person to
recover under rights of contribution from that party. The
Warrantors shall inform CRT and Peel Hunt immediately if any such
agreements are entered into by the Company hereafter.
13.14 The Company and the Directors acknowledge that the Indemnity set
out in this clause 13 shall be a separate obligation to any
indemnities granted in favour of CRT or Peel Hunt in accordance
with the terms of their Engagement Letters (so far as they continue
until Admission), or the Nominated Adviser Agreement.
13.15 An Indemnified Person shall not be entitled to recover more than once
in respect of the same Loss.
22
14. UNDERTAKINGS
14.1 The Company and each of the Directors undertake to each of CRT and
Peel Hunt that between the date of this Agreement and the date
falling 18 months after Admission they shall not, without the prior
written consent of Peel Hunt as Nominated Adviser (such consent not
to be unreasonably withheld, conditioned or delayed), enter into or
procure or (so far as they are respectively able) permit the Company
or any of its Associates to enter into any commitment or agreement,
or put itself in a position where it is obliged to announce that any
commitment or agreement may be entered into, which:
(a) is not contemplated or otherwise referred to in the Placing
Documents; or
(b) could materially or adversely affect the Placing or which is
or may be material in relation to the Placing; or
(c) is material in the context of the business or affairs of the
Company,
other than in relation to a Business Combination (as defined in the
Admission Document) which has been approved by the necessary
shareholder vote in accordance with the terms of the Admission
Document.
14.2 Each of the Directors undertakes with Peel Hunt, as Nominated
Adviser and Broker, and with the Company that he shall, and shall
procure that any person connected with him shall, comply with Rule
21 of the AIM Rules relating to directors' dealings in securities
as applicable to AIM companies.
14.3 The Company and each Director hereby undertakes to each of CRT and
Peel Hunt that it will at all times comply and act in accordance
with its obligations under FSMA, the rules and requirements of the
London Stock Exchange (including, without limitation, the AIM
Rules), the Dealing Code and any other requirements, statutory or
otherwise, from time to time in force in relation to companies
listed on AIM.
14.4 Save as expressly contemplated by this Agreement, or as required by
law, the Securities Act, the Exchange Act, the AIM Rules or by the
London Stock Exchange or any other regulatory authority, neither
the Company nor any Director shall make or dispatch any public
announcement, statement or communication or publish any document
concerning the Company or in connection with the Placing (whether
in response to enquiries or otherwise) between the date of this
Agreement and the date falling 6 months after Admission, without
the prior written consent of Peel Hunt (such consent not to be
unreasonably withheld, conditioned or delayed) and the Company
shall forward to Peel Hunt for comment any proofs of all such
documents and take into account all reasonable requirements of Peel
Hunt in relation thereto.
14.5 The Company undertakes to each of CRT and Peel Hunt that, except as
set forth in this Clause 14.5, the Company shall not pay any Director
or any of their Associates any fees or compensation from the Company,
for services rendered to the Company prior to, or in connection with,
the consummation of a Business Combination; provided that the
Directors shall be entitled to reimbursement from the Company for
their out-of-pocket expenses incurred in connection with seeking and
consummating a Business Combination (as defined in the Admission
Document).
14.6 The Company undertakes to each of CRT and Peel Hunt that it shall
cause the proceeds of the Placing to be held in the Trust Account
to be invested only in money market funds meeting conditions of the
Investment Company Act of 1940 or securities issued or guaranteed
by the
23
United States with specific maturity dates, as set forth in the Trust
Agreement and disclosed in the Admission Document.
14.7 The Company undertakes to each of CRT and Peel Hunt that prior to
commencing its due diligence investigation of any operating
business which the Company seeks to acquire for an initial Business
Combination (as defined in the Admission Document) (a "TARGET
BUSINESS") or obtaining the services of any vendor, it will use its
reasonable efforts to cause the Target Business or vendor to
execute a waiver letter in relation to any claims against the Trust
Account. In the event that a vendor or Target Business refuses to
enter into such a waiver letter, the Company may engage such vendor
or commence due diligence investigations of, or enter into
discussions with, such Target Business, provided the Company
determines that it would be unable to obtain, on reasonable terms,
substantially similar services or opportunities from another entity
willing to enter into such a waiver.
14.8 Prior to the consummation of an initial Business Combination (as
defined in the Admission Document), the Company undertakes to each
of CRT and Peel Hunt that it will submit such transaction to the
Company's shareholders for their approval even if the nature of the
acquisition is such as would not ordinarily require shareholder
approval under applicable law.
15. US UNDERTAKINGS
15.1 Each of CRT and Peel Hunt severally and not jointly:
15.1.1. represent, warrant and agree that the Units, Common Shares
and Warrants (the "SECURITIES") have not been, and will not
be, registered under the Securities Act, and that they will
not offer the Securities in a manner that would require the
offered Securities to be registered under the Securities
Act; and
15.1.2. acknowledge that the offer and sale of the Securities or any
beneficial interests in the Securities prior to the date
which is one year after the later of (1) the date when the
Securities are first offered to persons (other than
distributors) pursuant to Regulation S and (2) the date of
closing of the offering (the "COMPLIANCE PERIOD") must be
only:
(ii) in compliance with the restrictions set forth under
"Category 3 Offering - Compliance Period" in the
Admission Document;
(iii) pursuant to an effective registration statement
under the Securities Act; or
(iv) pursuant to an available exemption for the
registration requirements of the Securities Act;
and that during the Compliance Period, neither CRT nor
Peel Hunt may engage in hedging transactions involving the
Securities unless in compliance with the Securities Act,
and that all offers and sales of securities contemplated
hereunder must be in accordance with "Offering
Restrictions", as such term is defined under Regulation S.
15.2 Neither the Company nor CRT, Peel Hunt nor their respective
affiliates nor any person acting on their behalf or on the behalf
of their affiliates will:
(a) directly or indirectly make offers or sales of Securities,
or solicit offers to buy or sell, or otherwise negotiate in
respect of, any Security under circumstances that would
require the registration of the Securities under the
Securities Act; or
(b) offer to sell the Units other than:
24
(i) in offshore transactions to non-US persons in
accordance with Regulation S;
(ii) to persons whom they reasonably believe are
"qualified institutional buyers"; or
(iii) sales to certain affiliates of the Company in
accordance with Regulation D,
as such term is defined under Rule 144A of the Securities
Act; or
(c) solicit offers for, or offer to sell, the Securities by any
form of general solicitation or general advertising (within
the meaning of Regulation D) or in any manner involving a
public offering within the meaning of Section 4(2) of the
Securities Act; or
(d) engage in directed selling efforts (within the meaning of
Regulation S) in respect of the Securities.
16. PROSPECTUS DIRECTIVE UNDERTAKINGS
None of the Company, CRT nor Peel Hunt, nor any of their respective
Associates nor any person acting on their behalf or on behalf of
any of their Associates will:
16.1 directly or indirectly make offers or sales of Units, Common Shares
or Warrants, or solicit offers to buy or sell, or otherwise
negotiate in respect of, any security under circumstances that
would require the Admission Document to be approved as a prospectus
by the FSA pursuant to sections 85 and 86 of the FSMA or vetted by
the FSA and certified by the FSA as containing the same level of
information as would be contained in a prospectus pursuant to the
Prospectus Directive; or
16.2 in relation to each Member State which has implemented the
Prospectus Directive, make an offer of the Units, Common Shares or
Warrants to the public in any such Member State, except that it may
make an offer of the Common Shares or Warrants in a Member State:
(a) to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(b) to any legal entity which does not meet two or more of the
following criteria, according to their last annual or
consolidated accounts:
(i) it has an average of at least 250 employees during
the last financial year;
(ii) it has a total balance sheet of more than
(euro)43,000,000; and
(iii) it has an annual net turnover of more than
(euro)50,000,000; or
(c) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to
Article 3 of the Prospectus Directive.
For the purposes of this clause 16.2, the phrase "offer of Units,
Common Shares or Warrants to the public" in relation to the sale or
offer of the Units, Common Shares or Warrants in any Member State
means the communication to one hundred or more persons in any one
Member State in any form and by any means of sufficient information
on the terms of the offer and the Units, Common Shares or Warrants
to be offered so as to enable a potential investor to decide to
purchase or subscribe for the Units, Common Shares or Warrants.
25
17. REPRESENTATIONS OF THE COMPANY, CRT AND PEEL HUNT
Each of the Company, CRT and Peel Hunt hereby represents and
warrants to each of the other parties to this Agreement that it:
(a) will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) in connection
with the issue or sale of the Units, Common Shares or
Warrants in circumstances in which Section 21(1) of FSMA
does not apply or pursuant to an exemption therefrom;
(b) prior to the date which is six months after the Admission
Date will not offer to sell, any Units, Common Shares or
Warrants sold through the Placing to persons in the United
Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of
investments for the purposes of their business or otherwise
in circumstances which have not resulted and will not result
in an offer to the public in the United Kingdom within the
meaning of the Prospectus Directive;
(c) has complied with and will continue to comply with all
applicable provisions of the FSMA with respect to anything
done by it in relation to the Units, Common Shares or
Warrants in, from or otherwise involving the United Kingdom;
and
(d) has only issued or passed on and will only issue and pass on
in the United Kingdom any document received by it in
connection with the sale of the Units, Common Shares or
Warrants to a person who is of a kind described in Articles
19 and 49 of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 or is a person to whom such
document may otherwise lawfully be issued or passed on.
18. TERMINATION
18.1 If at any time prior to Admission there shall have occurred, happened
or come into effect:
(a) any government regulation which in the reasonable opinion of
CRT and Peel Hunt seriously and adversely affects or will or
is reasonably likely to seriously and adversely affect the
business of the Company; or
(b) any major outbreak or escalation of hostilities, any attack
on or act of terrorism involving the United Kingdom, any
other Member State or the United States of America, or any
declaration of a national emergency or war by the United
Kingdom, any other Member State or the United States of
America which in the reasonable opinion of CRT and Peel Hunt
makes it impractical or inadvisable to proceed with the
Placing; or
(c) any other crisis or material change in the financial,
political, economic or market conditions in the United
Kingdom, any other Member State or the United States of
America, or elsewhere or in currency exchange rates or
controls which in the reasonable opinion of CRT and Peel
Hunt makes it impractical or inadvisable to proceed with the
Placing (including any disruption to trading generally on
any stock exchange or in any over-the-counter market); or
(d) any other crisis of international or national effect which
in the reasonable opinion of CRT and Peel Hunt makes it
impracticable or inadvisable to proceed with the Placing; or
26
(e) any material adverse change in the financial position or
prospects of the Company and its subsidiary undertakings
(taken as a whole) and in the reasonable opinion of CRT and
Peel Hunt, the effect of such change is such that it would
materially prejudice the success of the Placing or the
distribution of Subscription Units,
then CRT and Peel Hunt shall be entitled, after such consultation
with the Company as the circumstances may allow, to terminate their
respective obligations under this Agreement with immediate effect by
notice in writing to the Company at any time prior to Admission.
18.2 If at any time before Admission becomes effective:
(a) it comes to the knowledge of CRT and Peel Hunt (whether by
receipt of a notification under clause 12.4 or otherwise)
that any of the Warranties was untrue, inaccurate or
misleading when made and/or that any of the warranties
contained in this Agreement (including any of the
Warranties) has ceased to be true or accurate or has become
misleading by reference to the facts and circumstances from
time to time subsisting, in each case in any material
respect; or
(b) it shall come to the notice of CRT and Peel Hunt (whether by
receipt of a notification under clause 12.4 or otherwise)
that any statement in the Placing Documents is materially
incorrect or has become untrue, incorrect or misleading as a
result of a new matter or change or that a new matter has
arisen or a change has taken place which would, if the
Placing Documents were published at that time, constitute a
material omission from such documents and which would
require, pursuant to the AIM Rules, for a Supplementary
Admission Document to be published by or on behalf of the
Company; or
(c) any of the Company or the Directors have failed to comply
with any of their respective obligations under this
Agreement; or
(d) the appointment of CRT and Peel Hunt as agents to the
Company pursuant to clause 3 is terminated for any reason;
or
(e) any press or public announcement on behalf of the Company
that has not been approved by Peel Hunt as Nominated Adviser
prior to its release has been released,
then CRT and Peel Hunt shall be entitled, after such consultation
with the Company as the circumstances may allow, to terminate with
immediate effect their respective obligations under this Agreement
by giving notice to the Company at any time prior to Admission.
18.3 If this Agreement does not become unconditional or is terminated
pursuant to clauses 18.1 or 18.2, this Agreement shall cease and
determine and no party to this Agreement shall have any claim
against any other party to this Agreement for costs, damages,
compensation or otherwise except that:
(a) such termination shall be without prejudice to any accrued
rights or obligations of any party under this Agreement;
(b) the Company shall pay to CRT and Peel Hunt all expenses and
disbursements of the nature referred to in clause 11.2 and
any sums payable under clause 11.3;
(c) CRT and Peel Hunt shall as soon as practicable cause to be
redelivered to the Placees any moneys received from Placees
pursuant to the Placing; and
27
(d) the provisions of this clause 18.3 and clauses 1, 11.2,
11.3, 12, 13, 19, 20, 21 and 22 shall remain in full force
and effect.
18.4 If at any time following publication of the Admission Document but
prior to Admission becoming effective:
(a) there shall occur a significant change affecting the
information given in the final form of the Admission
Document or a contract shall be entered into by the Company
or such a contract shall determine, or notice be given of
its termination, and in any such case it would be required
or proper for the Company to issue a notification required
by the AIM Rules were Admission to have occurred; or
(b) if any such change or matter arises which gives rise to an
obligation to publish a Supplementary Admission Document,
then the Company shall provide each of CRT and Peel Hunt with full
details of such change or matter, immediately upon becoming aware
of the same and make all such announcements and publish all such
documents (including a Supplementary Admission Document) as CRT and
Peel Hunt may require or as may be required by law or the AIM Rules
in the circumstances (any such steps or documents to be in a manner
and form approved, subject to clause 18.5, by CRT and Peel Hunt,
such approval not to be unreasonably withheld, conditioned or
delayed).
18.5 The Company shall ensure that if a Supplementary Admission Document
is published:
(a) each statement of fact contained in the Supplementary
Admission Document is true and accurate and not misleading;
(b) each expression of opinion, intention or expectation
contained in the Supplementary Admission Document is made on
reasonable grounds, after due and careful enquiry and is
truly and honestly held by the Directors and is fairly
based;
(c) there is no other fact known by, or which could on
reasonable enquiry have been known to the Directors the
omission of which makes or would make a statement of fact or
an expression of opinion, intention or expectation contained
in the Supplementary Admission Document misleading or which
is or might be material in the context of the Placing; and
(d) the Admission Document and the Supplementary Admission
Document contain all information as investors and their
professional advisers would reasonably require, and
reasonably expect to find there, for the purpose of making
an informed assessment of the Company's assets and
liabilities, financial position, profits and losses and
prospects and the rights attached to the Units.
18.6 Immediately upon authorisation of the issue by CRT and Peel Hunt of
the Supplementary Admission Document, the Company shall make
available free of charge sufficient copies in accordance with the
requirements of the AIM Rules.
18.7 CRT and Peel Hunt shall provide all reasonable and timely
assistance in connection with the preparation and issue of the
Supplementary Admission Document. The Company shall provide each of
CRT and Peel Hunt with all such information and documents as they
may reasonably require to enable them to discharge their respective
obligations under this Agreement, in connection with Admission and
the Placing and to comply with their obligations to the London
Stock Exchange and in accordance with the AIM Rules.
28
18.8 If a Supplementary Admission Document is published in connection
with the Placing, references in this agreement to the Admission
Document are, as the context permits, to be read as references to
the Supplementary Admission Document, or as the context may
require, the Admission Document and Supplementary Admission
Document taken together.
18.9 If a Supplementary Admission Document is published, the Warranties
relating to the Admission Document shall be deemed to be repeated
on the date of publication of such Supplementary Admission Document
and when so repeated shall be read and construed as if the
references to the Admission Document were references to such
Admission Document when read together with the Supplementary
Admission Document.
19. GENERAL
19.1 The Company, and each of the Directors shall give all such
assistance and provide all such information as each of CRT and Peel
Hunt shall reasonably require for the purposes of this Agreement
and shall execute all such documents and do all such acts and
things as each of CRT and Peel Hunt may reasonably require in order
to give effect to the terms of this Agreement.
19.2 This Agreement shall be binding on each of the parties and their
successors and personal representatives as the case may be.
19.3 This Agreement may be executed as two or more counterparts in the
same form and execution by each of the parties of at least one of
such counterparts shall constitute due execution of this Agreement.
Any party may enter into this Agreement by executing a counterpart
and this Agreement shall not take effect until it has been executed
by all parties.
19.4 No failure or delay by any party to this Agreement in exercising
any remedy, right, power or privilege under or in relation to this
Agreement shall operate as a waiver of the same nor shall any
single or partial exercise of any remedy, right, power or privilege
preclude any further exercise of the same or exercise of any other
remedy, right, power or privilege.
19.5 No waiver by any of the parties of any of the requirements of this
Agreement or of any of its rights or remedies under this Agreement
shall have effect unless given in writing and signed by the waiving
or consenting party and then only in the instance and for the
purpose for which it is given. No waiver of any particular breach
of the provisions of this Agreement shall operate as a waiver of
any repetition of such breach.
19.6 Any release, waiver or compromise or any other arrangement of any
kind whatsoever which any party to this Agreement may agree to or
effect as regards one or more of the other parties in connection
with this Agreement shall not affect the rights and remedies of
that party as regards the remaining parties under this Agreement.
19.7 If at any time any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
19.8 Time shall be of the essence in this Agreement, both as regards the
dates, times and periods specifically mentioned and as to any
dates, times and periods which may, by agreement in writing between
the parties, be substituted for any of them.
19.9 This Agreement, the Nominated Adviser Agreement, the Engagement
Letters (so far as they continue until Admission) (together, the
"FRAMEWORK DOCUMENTS") constitute the entire and only legally
binding agreements between the parties relating to Admission and
the Placing.
29
Except in the case of fraud, or willful misconduct, the remedies
provided in the Framework Documents are the sole remedies of the
parties hereto for breach of the relevant terms of the Framework
Documents to the exclusion of all other rights and remedies at law,
in equity or otherwise. For the avoidance of doubt, the Engagement
Letters shall continue in full force and effect until Admission,
whereupon they shall terminate.
19.10 Each of the parties to this Agreement (other than the Company)
acknowledges that CRT and Peel Hunt are acting for the Company in
connection with Admission and the Placing and no one else, and
accordingly shall not be responsible to any party to this Agreement
(other than the Company) nor to any other persons for providing
protections afforded to its clients under the rules of the FSA or
advising any party to this Agreement (other than the Company) or
any other person on the Placing.
19.11 No party shall be entitled to assign, transfer or create any trust
in respect of the benefit or burden of any provision of this
Agreement (or any of the documents referred to herein) without the
prior consent of the other parties.
19.12 No advice rendered by CRT or Peel Hunt in connection with the
services performed by CRT and Peel Hunt hereunder will be quoted,
nor will such advice or communication or the name of CRT or Peel
Hunt be referred to in any report, document, press release, public
statement or other communication by the Company or any corporation
controlled by the Company or any director, officer, employee, agent
or representative of any thereof, without CRT or Peel Hunt's prior
written authorisation.
19.13 The Company recognises that CRT and Peel Hunt have been engaged
only by the Company, and that the Company's engagement of CRT and
Peel Hunt is not and is not deemed to be on behalf of and is not
intended to confer rights upon any director, shareholder, partner
or other owner of the Company or any other person not a party
hereto as against CRT or Peel Hunt. Unless otherwise expressly
agreed, no-one other than the Company is authorised to rely upon
the Company's engagement of CRT and Peel Hunt or any statements,
advice, opinions or conduct by CRT or Peel Hunt, and the Company
will not disclose such statements, advice, opinions or conduct to
others (except the Company's professional advisors and except as
required by law). None of CRT and Peel Hunt's advice shall
constitute a recommendation to any shareholder of the Company
concerning action that such persons might or should take in their
capacity as a shareholder. CRT and Peel Hunt's roles herein are
those of an independent contractor; nothing herein is intended to
create or shall be construed as creating a fiduciary relationship
between the Company and CRT and Peel Hunt.
19.14 The Company acknowledges and agrees that CRT and Peel Hunt may have
and may continue to have investment banking, financial advisory and
other relationships with parties other than the Company (including,
without limitation, competitors of the Company) pursuant to which
CRT and Peel Hunt may acquire information of interest to the
Company. Neither CRT nor Peel Hunt shall have any obligation to
disclose such information to the Company.
19.15 CRT and Peel Hunt are engaged in securities trading and brokerage
activities as well as investment banking and financial advisory
services. In the ordinary course of their trading and brokerage
activities, CRT and Peel Hunt may hold positions, for their own
account or the account of customers, in equity, debt or other
securities of the Company or any other company. CRT and Peel Hunt
may from time to time and at their discretion publish research on
the Company.
19.16 No variation of this Agreement shall be effective unless made in
writing signed by or on behalf of all the parties and expressed to
be a variation.
30
20. RIGHTS OF THIRD PARTIES
20.1 Each Indemnified Person shall have the right under the Contracts
(Rights of Third Parties) Act 1999 to enforce its rights against
the Company under clause 13 of this Agreement provided that an
Indemnified Person (in respect of clause 13) must obtain the
written consent of CRT and Peel Hunt (which may give or refuse in
their absolute discretion) before it may bring proceedings to
enforce the terms of clause 13 and, save to the extent notified in
writing by CRT and Peel Hunt to the relevant Indemnified Person,
CRT and Peel Hunt (without obligation) or one of them (as
determined by them) shall have the sole conduct of any such action
on behalf of the Indemnified Person.
20.2 Save as provided in clause 20.1, a person who is not a party to
this agreement shall have no rights under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of this Agreement but
this does not affect any right or remedy of a third party which
exists or is available apart from that Act.
20.3 Notwithstanding the provisions of clause 20.1, any rights arising
by virtue of the Contracts (Rights of Third Parties) Act 1999 may
be rescinded or varied in any way or at any time by the parties to
the Agreement without the consent of any Indemnified Person.
21. NOTICES AND SERVICE OF PROCEEDINGS
21.1 Any notice, consent, request, demand, approval or other
communication to be given or made under or in connection with this
Agreement (each a "Notice" for the purposes of this clause) shall
be, in writing and signed by or on behalf of the person giving it.
21.2 Service of a Notice must be effected by one of the following methods:
(a) by hand to the relevant address set out in clause 21.4 and
shall be deemed served upon delivery if delivered during a
Dealing Day, or at the start of the next Dealing Day if
delivered at any other time; or
(b) by prepaid first-class post to the relevant address set out
in clause 21.4 and shall be deemed served at the start of
the second Dealing Day after the date of posting; or
(c) by prepaid international airmail to the relevant address set
out in clause 21.4 and shall be deemed served at the start
of the fourth Dealing Day after the date of posting; or
(d) by facsimile transmission to the relevant facsimile number
set out in clause 21.4 and shall be deemed served on
despatch if despatched during a Dealing Day, or at the start
of the next Dealing Day if despatched at any other time,
provided that in each case a receipt indicating complete
transmission of the Notice is obtained by the sender and
that a copy of the Notice is also despatched to the
recipient using a method described in clauses 21.2(a) to (c)
(inclusive) no later than the end of the next Dealing Day.
21.3 In clause 21.2 "during a Dealing Day" means any time between 9.30
a.m. and 5.30 p.m. on a Dealing Day based on the local time where
the recipient of the Notice is located. References to "the start of
a Dealing Day" and "the end of a Dealing Day" shall be construed
accordingly.
31
21.4 If to the Company: Viceroy Acquisition Corporation
8235 Forsyth Boulevard
Suite 400
St. Louis,
Missouri 63105
Fax No: 001-314-889-9603
For the attention of: Chairman
with a copy to:
Lee Mikles
1486 E.Valley Road
Santa Barbara
California 93108
USA
Fax No: 001-805-565-0800
If to CRT: CRT Capital Group LLC
262 Harbor Drive
Stamford
Connecticut 06902
Fax No.: 001-203-569-6885
For the attention of:
Doug Harvey/Charles Severs
If to Peel Hunt: KBC Peel Hunt Ltd
111 Old Broad Street
London EC2N 1PH
Fax No.: +44 (0)20 7972 0112
For the attention of:
Adam Hart/Matt Goode
If to a Director: The address stated against his name
in Schedule 1
The facsimile number stated against
his name in Schedule 1
21.5 A party may change its address for service provided that the new
address is within the same country and that it gives the other
parties not less than 28 days' prior notice in accordance with this
clause 21. Until the end of such notice period, service on the
address set out in clause 21.4 shall remain effective.
22. LAW OF AGREEMENT
22.1 This Agreement shall be governed by and construed in accordance
with English law without regard to the conflicts of laws provisions
thereof and the parties hereby irrevocably consent to the exclusive
jurisdiction of the English courts in connection with any dispute
related to this Agreement and any documents entered into pursuant
to it, provided that nothing in this Agreement shall prevent or
limit CRT, the Company or Peel Hunt from bringing any action or
claim in connection with this Agreement in any other jurisdiction
it sees fit.
32
22.2 The Directors and the Company each appoint, without power of
revocation, Jordans Limited of 20-22 Bedford Row, London WC1R 4JS
as their respective agent for service of process in England and
hereby irrevocably consent to the service of process in any such
proceeding by delivery to such agent.
THIS AGREEMENT has been duly executed by the parties on the date stated
above.
33
SCHEDULE 1
THE DIRECTORS
PART A
THE EXECUTIVE DIRECTORS
NAME ADDRESS AND FAX NO. MAXIMUM LIABILITY
US$
Paul Anthony Novelly 8235 Forsyth Boulevard 2,000
Suite 400, Clayton
Missouri 63105
USA
Fax: 314-889-0211
Lee E. Mikles 1486 E. Valley Road 450,000
Santa Barbara
California 93108
USA
Fax: 805-565-0800
Douglas D. Hommert 8235 Forsyth Boulevard 450,000
Suite 400, Clayton
Missouri 63105
USA
Fax: 314-889-9603
PART B
THE NON EXECUTIVE DIRECTORS
NAME ADDRESS AND FAX NO. MAXIMUM LIABILITY
US$
Edwin A. Levy 570 Lexington Avenue 2,000
27th Floor, New York
New York 10022
USA
Fax: 314-889-9603
Thomas R. Evans 477 Madison Avenue 2,000
Suite 430, New York
New York 10022
USA
Fax: 314-889-9603
William J. Dore 8000 Global Drive 2,000
Carlyss, LA 70665
USA
Fax: 314-889-9603
34
SCHEDULE 2
WARRANTIES
1. COMPLIANCE WITH LAWS
The implementation of the Placing and Admission, the publication and
despatch of the Admission Document and the other Placing Documents
and the allotment and issue of the Units will comply with the FSMA,
the AIM Rules, the Securities Act and all other relevant requirements
of the rules and regulations of the London Stock Exchange and, so far
as the Directors are aware, all other relevant laws and regulations
of the United Kingdom, the United States and elsewhere and will, to
the extent permissible by applicable law, comply with and will not
infringe or exceed any limits, powers or restrictions or the terms of
any agreement, obligation or commitment to which the Company or any
of its Associates is a party or by which the Company or any of its
Associates is bound.
2. ADMISSION DOCUMENT
2.1 All factual information contained in the Placing Documents and/or
supplied to CRT or Peel Hunt (whether by the Company or the
Directors) for the purposes of Admission and the Placing, including
all statements of fact contained in the Admission Document, is and
will, when the Admission Document is despatched, be true and
accurate and not misleading or incomplete and does not omit
anything likely to affect the import of such information. All
statements, forecasts, estimates and expressions of opinion,
intention or expectation made by the Directors and contained in the
Admission Document are or will when published be honestly held by
the Directors and are or will be fairly based upon facts within the
knowledge of the Company and its Directors and have been or will be
made on reasonable grounds after due and proper consideration of
all information available to the Company and the Directors at that
time.
2.2 Each agreement or other instrument (however characterised 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 Admission Document, or (ii) is material to the Company's
business, has been duly and validly executed by the Company, is in
full force and effect and is enforceable against the Company and,
to the Company's knowledge, the other parties thereto, in
accordance with its terms, except (x) as such enforceability may be
limited by bankruptcy, insolvency, reorganisation or similar laws
affecting creditors' rights generally, (y) as enforceability of any
indemnification or contribution provision may be limited under the
federal and state securities laws, and (z) that the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defences and to the
discretion of the court before which any proceeding therefore 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.
2.3 There are no facts known, or which could on reasonable and proper
enquiry have been known to the Company or any of the Directors
which are not disclosed in the Admission Document and which would
or might reasonably be considered to:
(a) be likely to affect the import of the information contained
therein; or
35
(b) make any statement therein (whether of fact or opinion)
inaccurate or misleading; or
(c) invalidate or qualify any assumption made in support of
any statement therein (whether of fact or opinion); or
(d) be material for disclosure to Peel Hunt as Nominated
Adviser in relation to the Placing, or to a potential
subscriber for the Units.
2.4 The Admission Document contains all such information as investors
would reasonably expect to find there for the purpose of making an
informed assessment of:
(a) the assets and liabilities, financial position, profits and
losses and prospects of the Company; and
the rights attaching to the Subscription Units, Warrants and Common
Shares.
2.5 So far as the Company is, or any of the Directors are, aware at the
date of the publication of the Admission Document there is no fact
or circumstance which is not disclosed in the Admission Document
which if disclosed might reasonably be expected to affect the
decision of CRT or Peel Hunt to enter into this Agreement or of
Peel Hunt to act as Nominated Adviser and Broker to the Company for
the purposes of the AIM Rules or of any person to acquire any of
the Units.
3. VERIFICATION NOTES
The information contained in the replies to the Admission Document
Verification Notes is true and accurate in all material respects and
not misleading in any material respect and all expressions of opinion
and expectation therein contained are honestly held and fairly based,
such replies have been prepared or approved by persons having
appropriate knowledge and responsibility to enable them properly to
provide such replies and all such replies have been given in good
faith.
4. US SECURITIES LAWS
4.1 Neither the Company nor any of its affiliates:
(a) has, directly or indirectly, solicited any offer to buy,
sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy, sell or offer to sell
or otherwise negotiate in respect of, in the United States
or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Units
in a manner that would require the offered Units, Common
Shares or Warrants to be registered under the Securities
Act;
(b) will offer or sell the Units other than:
(i) in offshore transactions to non-US persons in
accordance with Regulation S;
(ii) to persons whom it reasonably believes to be
qualified institutional buyers within the meaning
of Rule 144A under the Securities Act; or
(iii) sales to certain affiliates of the Company in
accordance with Regulation D;
36
(c) has engaged or will engage, in connection with the
Placing, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) of the
Securities Act; and
(d) has engaged in or will engage in, in connection with the
Placing, any directed selling efforts (within the meaning
of Regulation S).
4.2 The Common Shares and Warrants are eligible for resale pursuant to
Rule 144A and will not be, at Admission, of the same class as
securities listed on a national securities exchange registered
under Section 6 of the Securities Act, or quoted in a United States
automated interdealer quotation system, and the Company reasonably
believes that there is no substantial U.S. market in the Units,
Common Shares or Warrants. The Company shall provide the
information to holders and purchasers of the Units described under
Section 144A(d)(4)(i) of the Securities Act.
4.3 The registration of the Units, Common Shares and Warrants under the
Securities Act is not necessary in connection with the offer, sale
and delivery of the Units in the manner contemplated by this
Agreement and the Admission Document.
5. ACCOUNTING INFORMATION
5.1 The historic financial information of the Company for the period
since incorporation to the Accounts Date as summarised in the Short
Form Report:
(a) has been prepared in accordance US GAAP;
(b) gives a true and fair view of the state of affairs of the
Company as at the Accounts Date and of the loss for the
period then ended; and
(c) in so far as required by and where appropriate in accordance
with US GAAP fairly sets out the assets, liabilities and
reserves of the Company and either makes proper provision
for or (where appropriate in accordance with US GAAP)
includes a note in respect of all material liabilities or
commitments, whether actual, deferred or contingent of the
Company as at the relevant dates and, in particular,
provides for or (where appropriate in accordance with US
GAAP) makes a proper disclosure of, all material liabilities
whether actual, deferred, contingent or disputed of the
Company for income tax or corporation tax measured by
reference to actual or deemed taxable profits (including
both income and chargeable gains) made or deemed to have
been made during the relevant financial periods, and for any
other taxes, duties or other fiscal impositions of any kind
whatsoever including any interest on any amounts and any
penalties or charges imposed in relation to such amounts
(arising under the laws of any jurisdiction) in relation to
or in consequence of any event occurring on or before the
relevant balance sheet date.
5.2 All information requested by the Reporting Accountants in the
course of preparation of the Short Form Report in Part III of the
Admission Document has been supplied to them and all information
and documentation supplied by the Company to the Reporting
Accountants for the purposes of the Short Form Report was when
given and remains (save to the extent amended, varied or updated
subsequently but prior to the date of the Short Form Report) true
and accurate and not misleading in any material respect.
37
6. FINANCIAL PROCEDURES
6.1 The Company has established procedures which the Directors believe
provide a reasonable basis for the Directors to make proper
judgements of the financial position of the Company.
6.2 The Company maintains a system of internal accounting controls
sufficient in the opinion of the Directors to provide reasonable
assurances that (a) transactions are executed in accordance with
management's general specific authorisation; (b) transactions are
recorded as necessary to permit preparation of financial statements
by the Company in conformity with US GAAP and to maintain
accountability for assets; (c) access to assets is permitted only
in accordance with management's general or specific authorisation;
and (d) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
7. POSITION SINCE THE ACCOUNT DATE
Save as disclosed in the Admission Document, the Company has not
traded in any business sector, incurred any material liabilities or
material assets and has not had any employees.
8. WORKING CAPITAL
8.1 The cash flow and working capital projections which form the basis
of the Working Capital Report have been approved by the board after
due and careful enquiry on the basis of the assumptions set out in
such projections and the Directors believe that such assumptions
are fair and reasonable and, so far as the Directors are aware,
there are no other assumptions on which that report ought to have
been based which have not been made, and which could reasonably be
expected to have an effect thereon.
8.2 All information requested from the Company by CRT and Peel Hunt and
the Reporting Accountants in connection with the review of the
working capital requirements of the Company was when given, and
remains, true and accurate and not misleading.
8.3 No material indebtedness of the Company has become payable before
its stated maturity nor do any circumstances exist such that (with
the giving of notice or the lapse of time) any secured or unsecured
borrowings of the Company would become repayable prior to its
stated date of maturity.
8.4 Having regard to available bank facilities and the proceeds of the
Placing, the Company will have sufficient working capital for its
present requirements, that is for at least the next 12 months from
the date of publication of the Admission Document.
9. WORKING CAPITAL REPORT, SHORT FORM REPORT AND OPINIONS
9.1 All information supplied by the Company or any of such person's
officers or employees to the Reporting Accountants for the purposes
of their Working Capital Report and/or the Short Form Report, and
to the Company's solicitors for the purposes of providing any legal
opinions required to be provided in relation to Admission
(collectively, the "Reports") and in respect of any updates to such
information was when supplied true and accurate in all material
respects and so far as the Directors are aware no further
information has been withheld the absence of which might reasonably
have affected the contents of the Reports in any material respect.
9.2 The Directors believe that the Reports are fairly presented and all
information contained in the Reports was and remains true and
accurate in all material respects and is not misleading in
38
any material respect and no fact or matter has been omitted from the
Reports which would be necessary to make the information therein not
misleading in any material respect save to the extent that the same
has been affected by events subsequent to the date of such Reports
and such events are disclosed accurately in all material respects and
without omission in the Placing Documents: and the Company and the
Directors have read and do not disagree to any material extent with
the statements of opinion contained in, or the contents of, the
Reports and (where relevant) the statements of opinion, intention or
expectation attributed to the Company or the Directors in the Reports
are accurate statements of the opinions, intentions or expectations
held by the Company which are fairly based upon facts within the
knowledge of the Company.
10. TAX
10.1 All returns of the Company for Taxation purposes that the Company is
required to make under applicable law and regulation have been made
and all such returns are correct and, so far as the Warrantors are
aware, are not the subject of any dispute with or claim by any
relevant Taxation Authority which would be material for disclosure in
the Admission Document and are not expected to be the subject of any
such dispute or claim.
10.2 The Company has, within any applicable time limit, paid all Tax
which it has become liable to pay, duly made all returns, given all
notices and supplied all other information required to be made,
given or supplied to any Tax Authority, and all such returns,
notices and information were and remain true and accurate in all
material respects and were made on a proper basis and the Company
is not involved in any dispute with, or subject to any
investigation by, any Tax Authority and, so far as the Directors
are aware, there are no facts or circumstances which are likely to
give rise to any such dispute or investigation. Other than as
fairly and specifically disclosed in the Admission Document, there
are no outstanding claims from any Tax Authority or any amounts
that the Company may be required to pay in connection with any Tax
liability.
10.3 So far as the Directors are aware having made all reasonable
enquiry all payments made by the Company to any person which ought
to have been made under deduction of Tax have been so made and the
Company has, where appropriate, duly accounted to the relevant Tax
Authority for such Tax.
11. CORPORATE MATTERS
11.1 All sums due in respect of the issued capital of the Company have
been paid to and received by the Company and there are, other than
as disclosed in the Admission Document, no outstanding options or
other rights to subscribe for or call for the issue or allotment of
any share or loan capital (or any other securities) of the Company.
11.2 Save to the extent disclosed in the Admission Document, the
shareholders of the Company are the beneficial owners free from all
encumbrances of the whole of the issued share capital of the
Company.
11.3 Save as disclosed in the Admission Document, none of the owners or
holders of Shares will, following Admission, have any rights, in
their capacity as such, in relation to the Company other than as
set out in the Certificate of Incorporation and Bylaws of the
Company.
11.4 Save as disclosed in the Admission Document, there are in force no
options or other agreements which call for the issue of or accord
to any person the right to call for the issue of any Common Shares,
warrants or other securities in the capital of the Company now or
at any time hereafter.
39
12. SECURITIES
The Common Shares and Warrants will, upon allotment, be free from all
claims, mortgages, charges, pledges, liens, encumbrances and equities
and any third party rights or interests (legal or equitable) or
restrictions of any nature whatsoever (other than as set out in the
Bylaws) and will, save as provided in the Admission Document, rank
pari passu in all respects with the Common Shares and Warrants (as
applicable) in the issued share capital of the Company.
13. CAPACITY
13.1 The Company has been duly incorporated under the laws of the State
of Delaware and has the requisite power and authority to conduct
its business as described in the Admission Document and is duly
qualified to transact business in each jurisdiction in which such
qualification is required, and is operating in accordance with its
Certificate of Incorporation and Bylaws.
13.2 The Directors have all necessary power under the Certificate of
Incorporation and Bylaws of the Company to create, allot and issue
and the Common Shares and Warrants constituting the Units, to enter
into this Agreement and the Placing Documents and to perform its
obligations under this Agreement and the Common Shares and Warrants
will, following the passing of the necessary resolutions of the
board of directors of the Company, be validly issued and the Common
Shares be credited as fully paid.
13.3 The creation, allotment and issue of the Common Shares and Warrants
constituting the Units will not infringe or exceed any limits,
powers or restrictions or the terms of any contract, obligation or
commitment or other arrangement binding on the Company.
14. LITIGATION
Neither the Company nor any Director nor any other person for whose
acts and defaults the Company is or may be vicariously liable is
engaged in any legal or arbitration proceedings or is the subject of
any disciplinary proceedings or enquiries by any governmental or
regulatory bodies which individually or collectively may have, or
have had during the 12 months preceding the date of this Agreement, a
significant effect on the financial position of the Company and so
far as the Warrantors are aware, no such legal or arbitration
proceedings are threatened or pending nor are there any circumstances
of which the Warrantors are aware which may give rise to any such
legal or arbitration proceedings being threatened or commenced,
which, in any such case, may have or is likely to have a material
effect on the financial position of the Company.
15. INSOLVENCY
The Company has not taken any action nor have any other steps been
taken or legal proceedings started or, to the best of the knowledge,
information and belief of the Warrantors, are threatened against the
Company for its winding-up, striking-off or dissolution or for it to
enter into any arrangement with or composition for the benefit of
creditors (including any moratorium prior to a voluntary
arrangement), or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of the Company or
any of its properties, revenues or other assets, including the filing
of any administration application, notice of intention to appoint an
administrator or notice of appointment of an administrator or for the
occurrence of any event in a jurisdiction outside England and Wales
of any form of insolvency proceeding or event similar or analogous to
any of those referred to in this paragraph.
40
16. DIRECTORS' RESPONSIBILITIES
The Directors have been provided with, and have read, a memorandum
prepared by the Company's solicitors the nature of their
responsibilities and obligations as directors of a listed company
under the AIM Rules.
17. LONDON STOCK EXCHANGE
17.1 The Company has informed CRT and Peel Hunt in writing of all
discussions which it or its agents (apart from CRT and Peel Hunt)
have had with the London Stock Exchange in relation to the AIM
Application or the interpretation of and AIM Application of the AIM
Rules to the Company.
17.2 All statements made by or on behalf of the Company in connection
with any AIM Application to the London Stock Exchange for certain
information to be omitted from the Admission Document as being
inapplicable or of minor importance only and not such as would
influence an assessment of the assets and liabilities, financial
position, profits and losses and prospects of the Company or any
other reason permitted by the AIM Rules were when made and continue
to be true and accurate.
18. DIRECTORS AND MANAGEMENT
18.1 No Director has given notice to, or received notice from, the
Company terminating his position as Director and no such person has
threatened or, so far as the Warrantors are aware, is expected to
give such notice.
18.2 The Directors are all the directors of the Company and there is no
other person who is or could be deemed to be a shadow director of
the Company within the meaning of section 741 of the Act.
18.3 Save as set out in the Admission Document, none of the Directors has:
(a) been adjudged bankrupt in the United Kingdom or elsewhere;
(b) at any time been party to a deed of arrangement or made any
other form of composition with his creditors;
(c) been a director of any company or other body corporate which
was liquidated (other than by a members' voluntary
winding-up) or had a receiver appointed while he was a
director or within six months after he ceased to be one;
(d) ever been censured by or refused admission to any
professional or regulatory body; or
(e) been convicted of an indictable offence.
19. CONFLICTS OF INTEREST
The Admission Document contains all information concerning any actual
or, so far as the Directors are aware, potential conflicts of
interest between the Company and any Director or any company of which
any Director is a director or in which he has a material interest and
all statements contained in the Admission Document concerning such
conflicts or concerning the future relationship between such Director
and the Company are truly and honestly made and are not misleading
and so far as the Directors are aware there are no other facts
concerning the same the omission of which makes any statement therein
false or misleading.
41
20. SUBSIDIARIES
The Company has no subsidiaries.
42
SCHEDULE 3
DOCUMENTS TO BE DELIVERED
Except as otherwise stated, the parties shall procure that the following
documents are delivered to Peel Hunt on Impact Day or as soon as possible
thereafter (or as soon thereafter as the Company and CRT and Peel Hunt shall
agree):
1. One copy of the Admission Document signed by each Director or by
his agent or attorney duly authorised in writing (together with the
original of any such authorisation and such number of certified
copies as CRT and Peel Hunt may require).
2. An original signed copy of the Admission Document Verification
Notes (including the analogous notes produced in respect of the
Presentation Materials) duly signed by or on behalf of each of the
Directors (and any other person indicated therein as being
responsible for any of the questions contained therein).
3. A form of definitive share certificate for the Common Shares.
4. A form of definitive warrant certificate for the Warrants.
5. An original signed copy of the Short Form Report in terms
previously agreed with CRT and Peel Hunt prepared by the Reporting
Accountants.
6. An original signed copy of the report in terms previously agreed
with CRT and Peel Hunt reporting on the working capital projections
of the Company prepared by the Reporting Accountants.
7. An original signed copy of the report in terms previously agreed
with CRT and Peel Hunt on the financial reporting procedures
adopted by the Company prepared by the Reporting Accountants.
8. An original of each of the following comfort letters:
8.1 from the Reporting Accountants about the Company's financial
reporting procedures and suitability for AIM;
8.2 from the Reporting Accountants confirming the accuracy of
financial information in the Admission Document;
8.3 from the Reporting Accountants in relation to the section on
UK taxation in the Admission Document;
8.4 from the Company in relation to financial reporting
procedures.
9. The original signed written consent of the Reporting Accountants to
the inclusion in the Admission Document of the Short Form Report
and the references thereto and to their name in the form and
context in which they are included.
10. An original of the letter from the Company addressed to CRT and
Peel Hunt confirming that the working capital available to the
Company is sufficient for its present requirements.
43
11. An original of each of the letters required to be provided pursuant
to Rule 39 of the AIM Rules.
12. An original signed copy of the power of attorney, responsibility
statement and statement of Directors' interests (in a form
previously approved by CRT and Peel Hunt) signed by each Director.
13. Originals of the responses to the Directors' questionnaires
prepared by Peel Hunt.
14. Copy of the Registrar's agreement duly executed by the Company and
the Registrar.
15. A certified copy of the minutes of the meeting of Directors in a
form previously agreed with the Company by CRT and Peel Hunt at
which, inter alia, resolutions were passed approving and
authorising the issue of the Placing Documents, authorising the
execution of this Agreement by the Company, conditionally allotting
the Subscription Units and adopting the Dealing Code and the
Company's financial reporting procedures.
16. A certified copy of the minutes of the meeting of Directors in a
form previously agreed with the Company by CRT and Peel Hunt at
which, inter alia, resolutions were passed approving and
authorising the issue of the Admission Document and the AIM
Application and approving the terms of the Placing.
17. A certified copy of the Certificate of Incorporation and Bylaws of
the Company.
18. The original signed AIM Application in the appropriate form issued
by the London Stock Exchange.
19. A certified copy of the warrant instrument for the Warrants.
20. The Press Release.
21. The original signed Lock-in Deeds executed by each Founding
Shareholder, the Company and Peel Hunt.
22. Original copies of the legal opinions being provided by the
Company's solicitors in relation to certain matters of US law.
44
SCHEDULE 4
LIMITATION OF LIABILITY
1. Neither the Directors nor the Company shall have liability in respect
of any claim for breach of the Warranties or under the Indemnity
unless written notice of the claim identifying its source and
circumstances (so far as within the knowledge of CRT and Peel Hunt at
that date) shall have been given by CRT and Peel Hunt to the person
against whom the claim is being made and in the case of the Directors
only, such written notice must be made prior to the date which is
three months after the publication of the audited accounts of the
Company for the financial year ending 31 December 2007. There shall
be no time limitation for giving notice of any claim against the
Company for breach of the Warranties or under the Indemnity.
2. The maximum aggregate liability of each of the Directors under
clause 12 and Schedule 2 and clause 13 of this Agreement shall not
exceed the amount set out opposite his name in Schedule 1.
3. The maximum liability of the Company under clause 12 and Schedule 2
and clause 13 of this Agreement shall be the aggregate value of the
Subscription Units acquired or subscribed for pursuant to the
Placing at the Placing Price and before taking into account the
expenses of the Placing.
4. Neither the Company nor the Directors shall have any liability in
respect of any claim under the Warranties if and to the extent that
such a claim occurs or is increased as a result of any change in
legislation after the date of this Agreement (or any legislation
not in force at the date of this Agreement) which takes effect
retrospectively or the withdrawal after the date of this Agreement
with retrospective effect of any published concession, or published
general practice by any Tax Authority.
5. Neither the Company nor the Directors shall be liable to any of the
Indemnified Persons for or in respect of:
(a) indirect loss or damage, special or punitive damages; or
(b) loss of profits;
suffered or incurred by any Indemnified Person arising out of, or
in connection with or resulting from this Agreement, whether any
claim for such loss or damage is based on tort (including
negligence), strict liability, contract (including breach of or
failure to perform this Agreement or the breach of any
representation or Warranty hereunder, whether express or implied)
or otherwise.
6. For the avoidance of doubt, none of the provisions of this Schedule
4 shall apply in the event of fraud or dishonesty on the part of
the relevant person, nor in respect of a breach of clause 12.3.
45
SCHEDULE 5
CERTIFICATE
[LETTERHEAD OF THE COMPANY]
CRT CAPITAL GROUP LLC
262 HARBOR DRIVE
STAMFORD
CONNECTICUT 06902
KBC PEEL HUNT LTD
111 OLD BROAD STREET
LONDON EC2N 1PH
[o][o] 2006
Dear Sirs
PLACING OF [o] UNITS
We refer to the placing agreement between us dated [o][o] 2006 relating to
the above-mentioned placing (the "PLACING AGREEMENT"). Words and expressions
defined in the Placing Agreement have the same meanings herein.
The Company and each of the Directors hereby confirm to you that:
(a) each of the Conditions referred to in paragraphs (a) to (f)
(inclusive) of clause 2.1 of the Placing Agreement has been
fulfilled in accordance with its terms;
(b) save as previously notified to CRT and Peel Hunt in accordance with
clause 12.4 of the Placing Agreement (if relevant), none of the
Warranties was untrue, inaccurate or misleading at the date of the
Placing Agreement or would cease to be true or accurate or would
become misleading if such Warranties were repeated at any time
before Admission by reference to the facts and circumstances then
subsisting; and
(c) the Company and the Directors have complied with or performed their
respective obligations under the Placing Agreement to the extent
that the same fall to be performed prior to Admission.
Yours faithfully
............................
[Officer], duly authorised
for and on behalf of Viceroy Acquisition Corporation
and on behalf of the Directors
46
SCHEDULE 6
FEES, COMMISSIONS AND EXPENSES
PART IA
AMOUNTS TO BE DEDUCTED FROM PROCEEDS BY PEEL HUNT
Peel Hunt shall pay out of the aggregate subscription monies paid to Peel
Hunt by UK Placees, together with any amounts paid to Peel Hunt by CRT
pursuant to clause 9.1:
1. For US$ Amounts To The Account Of Peel Hunt, To The Account Held By
Peel Hunt At Barclays Bank Plc And Having The Following Details:
Sort Code: 20-19-90
Account No: 79120288
Account Name: KBC Peel Hunt Ltd
Swift: BARCGB22
Iban: GB32 BARC 2019 9079 1202 88
For UK(pounds) amounts to the account of Peel Hunt, to the account
held by Peel Hunt at Barclays Bank plc and having the following
details:
Sort Code: 20-19-90
Account Number: 60058548
Account Name: KBC Peel Hunt Ltd
Swift: BARCGB22
Iban: GB47 BARC 2019 9060 0585 48
US$540,000, calculated by deducting from US$810,000 representing
Peel Hunt's commission of six per cent. of 10 per cent. of the
aggregate value of the Subscription Units, less US$270,000, being
that portion of commission that Peel Hunt has agreed to defer until
the consummation of a Qualified Business Combination; and
2. US$9,000,000, being the Stabilisation Withholding Amount, into the
Stabilisation Retention Account, being an account having the
following details:
Bank: Barclays Bank plc
Sort Code: 20-19-90
Account No: 79120288
Account Name: KBC Peel Hunt Ltd
47
Swift: BARCGB22
Iban: GB32 BARC 2019 9079 1202 88
48
PART IB
AMOUNTS TO BE DEDUCTED FROM PROCEEDS BY CRT
CRT shall pay out of the aggregate subscription monies paid to CRT by US
Places:
1. For US$ amounts to the account of CRT, to the account held by CRT
at The Bank of New York and having the following details:
ABA #: 021-000-018
Beneficiary: Pershing LLC
Beneficiary Account No: 890-051238-5
Ultimate Beneficiary: CRT Capital Group LLC
Ultimate Beneficiary Account No: 4LM-
US$4,860,000, calculated by deducting from US$7,290,000
representing CRT's commission of six per cent. of 90 per cent. of
the aggregate value of the Subscription Units, less US$2,430,000,
being that portion of commission that CRT has agreed to defer until
the consummation of a Qualified Business Combination.
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PART II
PAYMENTS OF FEES OUT OF WORKING CAPITAL BY THE COMPANY
The Company shall, as at Admission, pay out of its working capital:
1. all amounts necessary to satisfy all expenses (together with VAT or
other Tax chargeable thereon) for which the Company may be
responsible pursuant to clause 11.2 (other than those expenses
listed in Schedule 6 Part I), and specifically:
1.1 the professional fees and expenses of:
(a) Mintz Levin Cohn Ferris Glovsky and Popeo LLP, Mintz Levin
Cohn Ferris Glovsky and Popeo P.C. in the amount of
US$400,000 to the following account:
Bank name: Bank of America NA
Bank address: 5 Canada Square, London E14 5AQ
Sort Code: 16-50-50
SWIFT Code: BOFAGB22 (for international wires)
Account Name: Mintz Levin Cohn LLP RE Client Funds
Account number: 600868030049
(b) KPMG LLP in the amount of (pounds)36,225 to the following
account:
Sort Code: 20-00-00
Bank: Barclays Bank PLC
One Churchill Plaza
London EC14 5HP
Account Number: 40851590
SWIFT ID: BARCGB22
(c) Bingham McCutchen LLP in the amount of US$75,000 to the
following account:
Bank: Barclays Bank PLC
99 Hatton Garden
London EC1N 8DN
Account Number: 48833455
SWIFT ID: BARCGB22
(d) Capital Printing (UK) in an amount of up to US$50,000 to
such account as they may notify in writing to the Company.
1.2 to the accounts of Peel Hunt set out at Part IA of this Schedule:
50
(a) initial AIM listing fees of (pounds)4,340;
(b) pro rata payment of AIM annual fee of (pounds)3,127.18
(c) a corporate finance fee of US$200,000;
(d) an initial fee in respect of Peel Hunt's appointment as
Nominated Adviser under the Nominated Adviser Agreement of
US$12,500; and
(e) out-of-pocket expenses of (pounds)3,997.
1.3 to the account of CRT set out at Part IB of this Schedule a corporate
finance fee of US$1,350,000.
51
SIGNED by CHARLES SEVERS ) /s/ Charles Severs
for and on behalf of )
CRT CAPITAL GROUP LLC )
SIGNED by ADAM HART ) /s/ Adam D. Hart
for and on behalf of )
KBC PEEL HUNT LTD )
SIGNED by PAUL ANTHONY NOVELLY )
/s/ Paul Anthony Novelly )
)
)
SIGNED by LEE E. MIKLES )
/s/ Lee E. Mikles )
)
)
SIGNED by DOUGLAS D. HOMMERT )
/s/ Douglas D. Hommert )
)
)
SIGNED by Douglas D. Hommert )
for and on behalf of )
VICEROY ACQUISITION CORPORATION )
in the presence of: Mary B. Hockle )
/s/ Douglas D. Hommert
/s/ Mary B. Hockle
52
SIGNED by EDWIN A. LEVY )
/s/ Edwin A. Levy )
)
)
SIGNED by THOMAS R. EVANS )
/s/ Thomas R. Evans )
)
)
SIGNED by WILLIAM J. DORE )
/s/ William J. Dore )
)
)
53