WARRANT AGREEMENT
Exhibit
4.5
This
Warrant Agreement, dated as of
[ ],
2008 (the “Agreement”) by and between Xxxxxxxxx Asia Acquisition Corp., a
corporation organized under the laws of the Cayman Islands (the “Company”), with
offices at 00/X Xxxxx 0, Xxx Xxxxx Xxxxx, 00 Xxxxxx Xxxx Xxxxxxx, Xxxx Xxxx,
and
Continental Stock Transfer & Trust Company, a New York corporation (the
“Warrant Agent”), with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
WHEREAS,
the Company is engaged in a public offering (the “Public Offering”) of 4,000,000
Units (“Units”) of the Company, each Unit consisting of one ordinary share, par
value $0.001 per share (the “Ordinary Share”) and one warrant to purchase one
Ordinary Share (the “Warrant”) and, in connection therewith, has determined to
issue and deliver up to 4,000,000 Warrants (the “Public Warrants”) to the public
investors;
WHEREAS,
the Company has heretofore engaged in a private offering (the “Private
Offering”) of 1,150,000 warrants (the “Insider Warrants”) of the Company to
certain persons named in the Registration Statement (as defined
below);
WHEREAS,
in connection with the Public Offering, the Company has determined to sell
and
deliver to Broadband Capital Management, Inc. (the “Broadband”), as
representative of the Underwriters, an option to purchase 280,000 Units of
the
Company, which Units contain 280,000 Ordinary Shares and 280,000 Warrants (the
“Representative Warrants”);
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a
Registration Statement, No. 333-146147 on Form S-1 (the “Registration
Statement”) for
the registration, under the Securities Act of 1933, as amended (the “Act”) of,
among other securities,
the
Public Warrants and the Ordinary Shares issuable upon exercise of the Public
Warrants and the Representative’s Warrants and the Ordinary Shares issuable upon
exercise of the Representative’s Warrants;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Public Warrants, the Insider Warrants and the Representative’s
Warrants (each, the “Warrant”; collectively, the “Warrants”); and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent
for the Company for the Warrants, and the Warrant
Agent
hereby accepts such appointment and agrees to perform the same in accordance
with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Exhibit
A
hereto,
the provisions of which are incorporated herein and shall be signed by, or
bear
the facsimile signature of, the Chairman of the Board of Directors and Chief
Executive Officer and/or Chief Financial Officer, Chief Operating Officer,
Treasurer or Assistant Secretary of the Company and shall bear a facsimile
of
the Company’s seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which
such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant Register”), for the registration of
original issuance and the registration of transfer of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
by
the Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“registered holder”), as the absolute
owner of such Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant Certificate made
by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
2.4 Detachability
of Public Warrants.
The
Public Warrants and Ordinary Shares comprising the Units will begin separate
trading on the 45th
day
after the effective date of the Registration Statement hereof unless Broadband
informs the Company of its decision to allow earlier trading, subject to the
Company’s having filed the Current Report on Form 8-K and having issued a press
release announcing when such separate trading will begin, but in no event will
Broadband allow separate trading of the Public Warrants and Ordinary Shares
comprising the Units until the Company files with the SEC a Current Report
on
Form 8-K which includes an audited balance sheet reflecting the receipt by
the
Company of the gross proceeds of the sale of the Insider Warrants and the Public
Offering including the proceeds received by the Company from the exercise of
the
Underwriters’ Over-allotment Option, if the over-allotment option is exercised
prior to the filing of the Form 8-K.
2
2.5 Insider
Warrants.
The
Insider Warrants may not be transferred until the consummation of the Business
Combination (as defined in the Registration Statement).
3. Terms
and
Exercise of Warrants
3.1 Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of Ordinary Shares, at the
price of $6.00 per Ordinary Share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant
Price” as used in this Warrant Agreement refers to the price per share at which
Ordinary Shares may be purchased at the time a Warrant is exercised. The Company
in its sole discretion may lower the Warrant Price at any time prior to the
Expiration Date for a period of not less than ten (10) business days, provided
any such reduction shall be identical among all of the Warrants.
3.2 Duration
of Warrants.
A
Warrant may be exercised only during the period (“Exercise Period”) commencing
on the later of the consummation by the Company of a stock exchange, asset
acquisition or other similar business combination (“Business Combination”) (as
described more fully in the Company’s Registration Statement) or _____________,
2009, and terminating at 5:00 p.m., New York City time on the earlier to occur
of (i) ____________, 2013 or (ii) the date fixed for redemption of the Warrants
as provided in Section 6 of this Agreement (“Expiration Date”). Notwithstanding
the foregoing, no Warrant shall be exercisable unless, at the time of exercise,
a registration statement relating to the Common Stock issuable upon the exercise
of such a Warrant is effective and current and a prospectus is available for
use
by the holders thereof and the Common Stock has been qualified or deemed to
be
exempt under the securities laws of the state of residence of the holder of
such
Warrants. Except with respect to the right to receive the Redemption Price
(as
set forth in Section 6 hereunder), each Warrant not exercised on or before
the
Expiration Date shall become void, and all rights thereunder and all rights
in
respect thereof under this Agreement shall cease at the close of business on
the
Expiration Date. The Company in its sole discretion may extend the duration
of
the Warrants by delaying the Expiration Date; provided, however, the Company
will provide notice to registered holders of the Warrants of such extension
of
not less than 20 days and, further provided that any such extension shall be
identical in duration among all of the Warrants.
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company
(or
as otherwise agreed to by the Company), the Warrant Price for each full Ordinary
Share as to which the Warrant is exercised and any and all applicable taxes
due
in connection with the exercise of the Warrant, the exchange of the Warrant
for
the Ordinary Share, and the issuance of the Ordinary Share.
3
3.3.2 Issuance
of Certificates.
As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price, the Company shall issue to the registered
holder of such Warrant a certificate or certificates for the number of full
Ordinary Shares to which he is entitled, registered in such name or names as
may
be directed by him, her or it, and if such Warrant shall not have been exercised
in full, a new countersigned Warrant for the number of shares as to which such
Warrant shall not have been exercised. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant unless (i) a registration statement under the Act with
respect to the Ordinary Shares is effective or
(ii)
in the opinion of counsel to the Company, the exercise of the Warrants is exempt
from the registration requirements of the Act and such securities are qualified
for sale or exempt from qualification under applicable securities laws of the
states or other jurisdictions in which the registered holders reside.
Warrants may not be exercised by, or securities issued to, any registered holder
in any state in which such exercise or
issuance would be unlawful. In no event will the Company be required to provide
the registered holder of a warrant with a net-cash settlement or other
consideration in lieu of physical settlement in shares of Common Stock,
regardless of whether the Common Stock underlying the Warrants is registered
pursuant to an effective registration statement. Accordingly, the Warrants
may
expire unexercised and worthless if a current registration statement covering
the Common Stock is not effective.
3.3.3 Valid
Issuance.
All
Ordinary Shares issued upon the proper exercise of a Warrant in conformity
with
this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4 Date
of Issuance.
Each
person in whose name any such certificate for Ordinary Shares is issued shall
for all purposes be deemed to have become the holder of record of such shares
on
the date on which the Warrant was surrendered and payment of the Warrant Price
was made, irrespective of the date of delivery of such certificate, except
that,
if the date of such surrender and payment is a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become
the
holder of such shares at the close of business on the next succeeding date
on
which the stock transfer books are open.
3.3.5 Exercise
of Insider Warrant.
Notwithstanding anything contained herein to the contrary, the Insider Warrant
may, at any time, provided that at the time of exercise they are held by the
original purchaser thereof or its permitted assigns, be exercised by
surrendering such Insider Warrant for that number of shares of Common Stock
equal to the quotient obtained by dividing (x) the product of the number of
shares of Common Stock underlying the Warrant, multiplied by the difference
between the Warrant Price and the “FMV” (defined below) by (y) the FMV. The
“FMV” shall mean the average reported last sale price of the Common Stock for
the 10 trading days ending on the third business day prior to the date on which
notice of exercise is received by the Company.
4
4. Adjustments.
4.1 Stock
Dividends - Split-Ups.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding Ordinary Shares is increased by a stock dividend payable
in Ordinary Shares, or by a split-up of Ordinary Shares, or other similar event,
then, on the effective date of such stock dividend, split-up or similar event,
the number of Ordinary Shares issuable on exercise of each Warrant shall be
increased in proportion to such increase in outstanding Ordinary
Shares.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding Ordinary Shares is decreased by a consolidation, combination,
reverse stock split or reclassification of Ordinary Shares or other similar
event, then, on the effective date of such consolidation, combination, reverse
stock split, reclassification or similar event, the number of Ordinary Shares
issuable on exercise of each Warrant shall be decreased in proportion to such
decrease in outstanding Ordinary Shares.
4.3 Adjustments
in Exercise Price.
Whenever the number of Ordinary Shares purchasable upon the exercise of the
Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator
of which shall be the number of Ordinary Shares purchasable upon the exercise
of
the Warrants immediately prior to such adjustment, and (y) the
denominator of which shall be the number of Ordinary Shares so purchasable
immediately thereafter.
4.4 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding Ordinary Shares
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such Ordinary Shares), or in the case of any consolidation
of
the Company with or into another corporation (other than a consolidation in
which the Company is the continuing corporation and that does not result in
any
reclassification or reorganization of the outstanding Ordinary Shares), or
in
the case of any sale or conveyance to another corporation or entity of the
assets or other property of the Company as an entirety or substantially as
an
entirety in connection with which the Company is dissolved, the Warrant holders
shall thereafter have the right to purchase and receive, upon the basis and
upon
the terms and conditions specified in the Warrants and in lieu of the Ordinary
Shares of the Company immediately theretofore purchasable and receivable upon
the exercise of the rights represented thereby, the kind and amount of shares
of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, or consolidation, or upon a dissolution
following any such sale or transfer, that the Warrant holder would have received
if such Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a change in
Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions
of
this Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, or consolidations, sales or other transfers.
4.5 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the warrant register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
5
4.6 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the
holder of any Warrant would be entitled, upon the exercise of such Warrant,
to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up to the nearest whole number the number of the Ordinary Shares to be
issued to the Warrant holder.
4.7 Form
of Warrant.
The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer
and Exchange of Warrants.
5.1 Transfer
of Warrants.
Prior to
the date the warrants are detached from the Units (the “Detachment Date”), the
Public Warrants may be transferred or exchanged only together with the Unit
in
which such Warrant is included, and only for the purpose of effecting, or in
conjunction with, a transfer or exchange of such Unit. Furthermore, each
transfer of a Unit on the register relating to such Units shall operate also
to
transfer the Warrants included in such Unit. From and after the Detachment
Date,
this Section 5.1 will have no further force and effect.
5.2 Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon
request.
5.3 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and issue new Warrants in exchange therefor until the Warrant Agent
has
received an opinion of counsel for the Company stating that such transfer may
be
made and indicating whether the new Warrants must also bear a restrictive
legend.
6
5.4 Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.5 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.6 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6. Redemption.
6.1 Redemption.
Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time after they become
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2., at the price of $.01 per Warrant
(“Redemption Price”), provided that the last sales price of the Ordinary Shares
has been at least $11.50 per share, on each of twenty (20) trading days within
any thirty (30) trading day period ending on the third business day prior to
the
date on which notice of redemption is given.
Notwithstanding the foregoing, the Registration Statement must be current in
order for the Company to exercise its redemption rights pursuant to this Section
6. The provisions of this Section 6.1 may not be modified, amended or deleted
without the prior written consent of Broadband. The Insider Warrants are not
subject to this Section 6 provided they are held by the initial purchasers
thereof, or their permitted assigns (as described in the Securities Escrow
Agreement entered into by the holders of Insider Warrants on the date
hereof).
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to
the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the registration books.
Any notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the registered holder received such
notice.
6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Agreement at
any
time after notice of redemption shall have been given by the Company pursuant
to
Section 6.2. hereof and prior to the time and date fixed for redemption. On
and
after the redemption date, the record holder of the Warrants shall have no
further rights except to receive, upon surrender of the Warrants, the Redemption
Price.
7
6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this Section
6
apply only to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the
Warrants issued upon such exercise provided that the criteria for redemption
is
met. The provisions of this Section 6.4 may not be modified, amended or deleted
without the prior written consent of the Representative.
6.5 Exclusion
of Private Warrants. The Company understands that the redemption rights
provided for by this Section 6 do not apply to the Insider Warrants if at the
time of redemption such warrants continue to be held by the initial purchaser
or
its permitted assigns. However, once such Insider Warrants are transferred
other
than to any permitted assign, the Company may redeem the Insider Warrants,
provided the criteria for redemption are met, including the opportunity of
the
Warrant holder to exercise prior to redemption pursuant to Section
6.3.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and date
as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3 Reservation
of Ordinary Shares.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued Ordinary Shares that will be sufficient to permit the exercise
in
full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration
of Ordinary Shares.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
file with the Securities and Exchange Commission a post-effective amendment
to
the Registration Statement, or a new registration statement, for the
registration, under the Act, of, and it shall take such action as is necessary
to qualify for sale, in those states in which the Warrants were initially
offered by the Company, the Ordinary Shares issuable upon exercise of the
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective and to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement. In
addition, the Company agrees to use its reasonable efforts to register such
securities under the blue sky laws of the states of residence of the exercising
warrant holders to the extent an exemption is not available. The
provisions of this Section 7.4 may not be modified, amended or deleted without
the prior written consent of the Representative.
8
8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of Ordinary Shares upon the exercise of Warrants, but the Company
shall
not be obligated to pay any transfer taxes in respect of the Warrants or such
shares.
8.2 Resignation
or Consolidation of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws
of
the State of New York, in good standing and having its principal office in
the
Borough of Manhattan, City and State of New York, and authorized under such
laws
to exercise corporate trust powers and subject to supervision or examination
by
federal or state authority. After appointment, any successor Warrant Agent
shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2 Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Ordinary Shares not later than the effective date of any such
appointment.
8.2.3 Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated
or any corporation resulting from any merger or consolidation to which the
Warrant Agent shall be a party shall be the successor Warrant
Agent
under this Agreement without any further act.
9
8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Co-Chief Executive Officer or Chairman
of the Board of the Company and delivered to the Warrant Agent. The Warrant
Agent may rely upon such statement for any action taken or suffered in good
faith by it pursuant to the provisions of this Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make
any representation or warranty as to the authorization or reservation of any
Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as
to
whether any Ordinary Shares will when issued be valid and fully paid and
nonassessable.
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and conditions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the
Company, all moneys received by the Warrant Agent for the purchase of shares
of
the Company’s Ordinary Shares through
the exercise of Warrants.
10
8.6 Waiver.
The Warrant Agent hereby waives any and all right, title, interest or claim
of
any kind (“Claim”) in or to any distribution of the Trust Account (as defined in
that certain Investment Management Trust Agreement, dated as of the date hereof,
by and between the Company and the Warrant Agent as trustee thereunder), and
hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for
any Claim against the Trust Account for any reason whatsoever.
9. Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
9.2 Notices.
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
Xxxxxxxxx
Asia Acquisition Corp.
00/X
Xxxxx 0
Xxx
Xxxxx
Xxxxx
00
Xxxxxx
Xxxx Xxxxxxx
Xxxx
Xxxx
Attn:
Xxxx Xxxx, Chief Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Warrant
Agent
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Warrant Agent with the Company), as
follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
[ ]
with
a
copy in each case to:
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, Esq.
11
and
Broadband
Capital Management
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
T.
Xxxxx Xxxxxx
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
9.3 Applicable
law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
or the United States District Court for the Southern District of New York,
and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenient forum. Any such process or summons to
be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.2 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim.
9.4 Persons
Having Rights under this Agreement.
Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 6.1, 6.4, 7.4 and
9.2
hereof, the Representative, any right, remedy, or claim under or by reason
of
this Warrant Agreement or of any covenant, condition, stipulation, promise,
or
agreement hereof. The Representative shall be deemed to be a third-party
beneficiary of this Agreement with respect to Sections 6.1, 6.4, 7.4 and 9.2
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto (and the Representative with respect to the Sections
6.1,
6.4, 7.4 and 9.2 hereof) and their successors and assigns and of the registered
holders of the Warrants.
9.5 Examination
of the Warrant Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent in the Borough of Manhattan, City and State of New York,
for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
9.6 Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
12
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
9.8 Amendments.
This
Warrant Agreement may be amended by the parties hereto without the consent
of
any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Warrant Agreement as the parties may deem necessary or desirable
and
that the parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of each of Broadband and the registered holders of a majority
of
the then outstanding Warrants. Notwithstanding the foregoing, the Company may
lower the Warrant Price or extend the duration of the Exercise Period in
accordance with Sections 3.1 and 3.2, respectively, without such
consent.
9.9 Severability.
This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of
this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
13
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
|
XXXXXXXXX
ASIA ACQUISITION CORP.
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
Continental
Stock Transfer & Trust Company
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
14
