AMENDMENT NO. 1 TO WARRANT AGREEMENT
EXHIBIT
4.1
AMENDMENT
NO. 1 TO
AMENDMENT
NO. 1 TO WARRANT AGREEMENT (this “Amendment”), dated as
of May 25, 2010, by and among GEROVA Financial Group, Ltd.
(formerly, Asia Special Situation Acquisition Corp.), a Cayman Islands exempted
company, with offices at Xxxxxxxxxx Xxxxx, 0xx Xxxxx, 1 Victoria Street,
Xxxxxxxx, XX 11, Bermuda (the “Company”), and Continental Stock Transfer &
Trust Company, a New York corporation, with offices at 00 Xxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 0000 (“Warrant
Agent”).
RECITALS
WHEREAS,
the Company and the Warrant Agent entered into the Warrant Agreement, dated as
of January 16, 2008 (the “Agreement”), 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
Warrants, and the parties intend to amend certain provisions of the
Agreement;
WHEREAS,
pursuant to Section 9.8 of the Agreement, the Agreement may be amended with the
written consent of Maxim and the Registered Holders of a majority of the then
outstanding Warrants; provided, that the Company may lower the Warrant Price or
extend the duration of the Exercise Period in accordance with the provisions of
Sections 3.1 and 3.2 of the Agreement, respectively, without the written consent
of Maxim and the Registered Holders of a majority of the then outstanding
Warrants; and
WHEREAS,
the Company proposes to lower the Warrant Price, extend the duration of the
Exercise Period, and in conjunction therewith, effect a 2:1 split of the
Warrants so that each holder of the Warrants shall receive an additional Warrant
for each Warrant such holder currently so holds; and
WHEREAS,
except as set forth in this Amendment, all of the terms and conditions set forth
in the Agreement shall remain in full force and effect.
NOW,
THEREFORE, in consideration of the premises, and of the covenants and agreements
set forth herein, and intending to be legally bound hereby, the parties hereby
agree as follows:
1. Definitions. All
capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Agreement.
2. The
Warrants. The Company hereby declares a 2:1 split of the
17,700,000 Warrants covered by the Agreement and agrees to exchange the
17,700,000 original Warrants for 35,400,000 new
Warrants. Accordingly, the Agreement is hereby amended so that the
11,500,000 originally issued Public Warrants shall now be exchanged for and
represent 23,000,000 Public Warrants, the 475,000 originally issued
Underwriter’s Warrants shall now represent 950,000 Underwriter’s Warrants, and
the 5,725,000 originally issued Private Warrants shall now represent 11,450,000
Private Warrants. For the avoidance of doubt, the 23,000,000 Public
Warrants shall be exercisable for an aggregate of 23,000,000 Ordinary Shares,
the 950,000 Underwriter’s Warrants shall be exercisable for an aggregate of
950,000 Ordinary Shares, and the 11,450,000 Private Warrants shall be
exercisable for an aggregate of 11,450,000 Ordinary Shares, in each case at the
Warrant Price per whole share. The Warrants, as amended hereby, may
be exercised by the holders, in whole or in part at any time or from time to
time, during the Exercise Period. The Company shall deliver to each
warrant holder of record on the effective and record date established for the
exchange a new Warrant entitling the holder to purchase the same number of
Ordinary Shares as contained in the original Warrant. Warrant holders
shall not be required to tender their original Warrants as a condition to
receiving the additional new Warrant.
3. Warrant
Price. Section 3.1 of the Agreement shall be amended and
restated in its entirety as follows:
“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 Agreement,
to purchase from the Company the number of Ordinary Shares stated therein, at
the price of $7.00 per whole 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 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 (as defined within Section 3 of the Warrant Agreement) for a period of not
less than ten business days; provided that any such reduction shall be identical
among all of the Warrants.”
4. Duration of
Warrants.
(a) Section
3.2.1 of the Agreement is amended as follows:
“January
16, 2012” shall be deleted wherever it appears and replaced with “January 16,
2014”.
(b) Section
3.2.2 of the Agreement is amended as follows:
“January
16, 2013” shall be deleted wherever it appears and replaced with “January 16,
2014”.
5. Form of
Warrant. The form of Warrant need not be changed because of
this Amendment. However, the Company may exercise its rights under
the second sentence of Section 4.7 of the Agreement.
6. Remaining
Provisions. Except as set forth in this Amendment, all other
provisions of the Agreement shall remain in full force and effect, and are
incorporated herein by this reference as though more fully set forth herein at
length.
7. Miscellaneous. The
provisions contained in Section 9 of the Agreement shall be incorporated herein
by reference and shall fully apply to this Amendment as if such provisions were
set forth in this Amendment.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Warrant
Agreement to be duly executed as of the date first above written.
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GEROVA
FINANCIAL GROUP, LTD.
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By:
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/s/ Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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Title: President
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CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
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By:
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/s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx
Xxxxxxxx
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Title: Vice
President
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REGISTERED
HOLDER OF WARRANTS
SIGNATURE
PAGE
AMENDMENT
NO. 1 TO
Instructions
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Individual
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Sign
Below
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Co-Owners
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Each
Co-Owner must sign below
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Corporation/Partnership/Trust
Other Entity
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Sign
below and indicate capacity (e.g. Managing Director, President, Managing
Partner)
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Name(s)
of Entity/Individual
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Name(s)
must be identical to name(s) set forth on the Warrant
Certificate
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Name
of Entity/Individual
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Signature:
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Print
Name:
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Title/Capacity/
Co-
Ownership: |
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Number
of Warrants Owned:
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