Registrant Engages Qualified Independent Underwriter to Comply with FINRA Rule

Committed Capital Acquisition Corp., a Delaware-incorporated blank check company that had a Form 10 Registration go effective in May 2007, has registered five million units of one common share and one warrant for a firm-commitment underwritten public offering (Form S-1 filed May 27, SEC File No. 333-174599).  Unlike most other blank check companies, the board of directors will have the sole discretion and authority to approve and consummate the initial business transaction without seeking stockholder approval.  

The sole book-running manager and underwriters' representative for the deal is Broadband Capital Management LLC ("BCM"), a boutique investment bank and broker-dealer.  Three Committed Capital insiders, who collectively own approximately 42.5% of the issued and outstanding shares before this offering, all serve as management of BCM.  As a member of the Financial Industry Regulatory Authority, BCM may be deemed to have a “conflict of interest” under Rule 5121(f)(5) of the Conduct Rules of FINRA. 

Compliance with Rule 5121(f)(5) of FINRA’s Conduct Rules requires that a “qualified independent underwriter” as defined by FINRA participate in the preparation of the registration statement and exercise the usual standard of due diligence.  The registrant has engaged Rodman & Renshaw to be the qualified independent underwriter and will pay Rodman a fee of $50,000 from the proceeds of a loan provided by BCM. Rodman & Renshaw will receive no other compensation. 

Offering proceeds of $25 million, or $28.750 million if the underwriters’ over-allotment option is exercised in full, will be deposited into a trust account.  The officers and directors have agreed that the company will have 21 months from the date of the prospectus (or 24 months if a letter of intent or a definitive agreement has been executed) to consummate the initial business transaction.  If the transaction has not been completed within such time, the company will (i) cease all operations except for the purpose of winding up, (ii) as promptly as possible, but not more than five business days thereafter, redeem public shares for cash equal to their pro rata share of the aggregate amount then on deposit in the trust account, less taxes and amounts released for working capital purposes, subject to applicable law, and (iii) as promptly as possible following such redemption, dissolve and liquidate as part of the plan of dissolution and liquidation.   

Contractual Rights Offered to Major Investors in T3 Motion, Inc.

T3 Motion, a manufacturer of personal mobility vehicles powered by electric motors that had been listed on the OTC Bulletin Board, initiated trading on the NYSE Amex with an underwritten offering units consisting of one common share, one Class H warrant and one Class I warrant (Form 424B4 filed May 17, SEC File No. 333-171163).  Each warrant entitles the holder to purchase one common share but cannot be exercised until three months after issuance.  The common shares and warrants will trade only as a part of a unit for 90 days following the closing of the offering.

T3 also offers 25 contractual rights to the purchasers of at least $500,000 of units in this offering as well as certain insiders converting their debt into units in a private placement concurrent with this prospectus (collectively, "$500,000 Investors"), which relate to Class H and Class I warrants.  In connection with such rights, the company plans to enter into agreements with the $500,000 Investors whereby, subject to certain exceptions, T3 may not sell or issue any common stock or equivalents at a per share price lower than the exercise price of the Class H or Class I warrants without prior written consent from such $500,000 Investors that hold at least 67% of all Class H and Class I warrants originally acquired by the $500,000 Investors.  

These negative covenant agreements also restrict T3 from engaging in certain types of change of control transactions in which common stock is exchanged for all cash or non-publicly traded securities without prior written consent from the $500,000 Investors (and permitted assigns).  The $500,000 Investors may assign their rights under these agreements in whole, but not in part, to a purchaser of their Class H or Class I warrants.  An agreement terminates with respect to any $500,000 Investor upon the earlier of the date that Class H and Class I warrants are no longer outstanding or at such time that such investor no longer holds Class H or Class I warrants.  The form of letter agreement was filed as Exhibit 4.6 to the Form S-1 on May 13.

Underwriting or Commissions Expense Listed in Registration Statement Part II

Item 511 of Regulation S-K requires the issuer to furnish a reasonably itemized statement of all expenses in connection with the issuance and distribution of the securities to be registered, other than underwriting discounts and commissions.  The General Instructions of registration statement Form S-1 instructs registrants to furnish the information required by Item 511 in Part II, Item 13 (Other Expenses of Issuance and Distribution).

Although the Item 511 requirement explicitly excludes underwriting expenses from mandatory disclosure, and the blank Form S-1 reserves Part II for disclosure of information not required in the prospectus (which constitutes the Part I disclosure), recent filers have included underwriting or commission expenses in the list of fees found in Item 13.  It might be that SEC comment letters called for this disclosure, but any comment letters for the offers discussed below are not yet publically available. 

NGL Energy Partners LP went public on May 12 and began trading on the NYSE (ticker: NGL).  The initial Form S-1 for the offering was filed February 11 (SEC file no. 333-172186), but it was not until Amendment No. 3 on April 28 that NGL disclosed a structuring fee equal to 0.5% of the gross proceeds payable to Wells Fargo Securities, LLC, one of the joint book-running managers for the deal.  Such disclosure was made as a footnote regarding underwriting discounts and commissions on the red-herring prospectus cover page and reference is made to it in Use of Proceeds discussions in Part I.  That is not unusual, but what is unusual is that this fee is quantified ($350,000) and listed as an expense in Part II, Item 13.

Other recent registrants report offering expenses on the prospectus cover page and in other Part I disclosures, but take the further step of quantifying the dollar amount and listing it in Item 13.  Juhl Wind, Inc. has registered $15M of common stock on a shelf basis and estimates up to $875,000 payable as commissions or discounts for a best efforts offering (file no. 333-173791).  On May 13, Vanguard Energy Corporation registered 7,000,000 units for an IPO (333-174194).  Vanguard has agreed to pay Paulson Investment Company, Inc., the representative of the underwriters, a non-accountable expense allowance equal to 3% of the total public offering price, and includes the $283,500 expense allowance with the other expenses of issuance and distribution listed in Part II.

Application of Push Down Accounting

Alto Palermo S.A. ("APSA") is a Buenos Aires-headquartered operator of ten shopping centers in Argentina with a limited trading market of American Depositary Shares listed on the NASDAQ Global Market.  In connection with the registration of common shares for concurrent Argentine and international offerings, APSA has applied push down accounting for US GAAP purposes in the Form F-1 filed on May 2 (SEC file no. 333-173838).  For Argentine GAAP purposes, push down accounting is not applied.

IRSA Inversiones y Representaciones Sociedad Anónima increased its equity interest in APSA to over 94% of the voting capital on October 15, 2010.  Pursuant to FASB ASC No. 805 and Codification of SEC Staff Accounting Bulletins Topic 5.J “New Basis of Accounting Required in Certain Circumstances”, when a purchase transaction results in an entity becoming substantially wholly-owned, push down accounting is applied in the acquired entity´s separate financial statements.  Push down accounting requires that the fair value adjustments and goodwill or negative goodwill identified by the acquiring entity be pushed down and reflected in the financial statements of the acquired entity.

Accordingly, the selected consolidated US GAAP income data statement data for the six-month period ended 12/31/10 prior to 10/15/10 reflect the historical accounting basis in APSA assets and liabilities and are labeled “Predecessor Company”.  The selected consolidated US GAAP income data statement data for the six-month period ended 12/31/10 subsequent to 10/15/10 are labeled “Successor Company” and reflect the push down basis of accounting for the new fair values in APSA's consolidated financial statements.  Consequently, the amounts shown for the periods prior to and subsequent to 10/15/10 are not comparable. Note 14 to the unaudited six-month consolidated financial statements provide a description of the adjustment related to push down accounting.