FORM OF WARRANT AGREEMENT
Exhibit 4.4
FORM OF WARRANT AGREEMENT
This
Warrant Agreement is made as of ___, 2007
between MBF Healthcare Acquisition Corp., a Delaware corporation, with offices at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000 Xxxxx Xxxxxx, Xxxxxxx 00000 (the “Company”), and Continental Stock Transfer &
Trust Company, a New York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the “Warrant Agent”).
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of up to 18,750,000
units (“Public Units”), consisting of one share of the Company’s common stock, par value $0.0001
per share (“Common Stock”) and one warrant (“Public Warrants”), each of such Public Warrants
evidencing the right of the holder thereof to purchase one share of Common Stock for $6.00, subject
to adjustment as described herein;
WHEREAS, prior to the completion of the Public Offering, the Company shall sell
and issue to its initial shareholder, MBF Healthcare Partners, L.P.,
343,750 units (the “Private
Units” and together with the Public Units, the “Units”), each such Private Unit consisting of one
share of Common Stock and one warrant to purchase one share of Common Stock for $6.00, subject to
adjustments described herein (the “Unit Warrants”)
and warrants to purchase 2,750,000 shares of Common Stock for $6.00
per share, subject to adjustments described herein (the
“Placement Warrants” and together with the
“Unit Warrants”, the “Private Warrants”) (the Public Warrants and the Private Warrants
are together referred to herein as “Warrants”);
WHEREAS, the Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-135610, on Form S-1 (“Registration Statement”) for the registration under the
Securities Act of 1933, as amended (“Act”), of, among other securities, the Public Warrants and the
Common Stock issuable upon exercise of the Public 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, exercise and cancellation 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 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, 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 with respect to 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,
Chief Executive Officer, Chief Financial Officer or Chief Operating Officer 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. All of the Warrants shall initially be
represented by one or more book-entry certificates (each a “Book Entry Warrant Certificate”).
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.
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2.3 Detachability of Warrants. The securities comprising the Units will not be
separately transferable until 60 days after the earlier to occur of the expiration or termination
of the underwriters’ over-allotment option or the exercise in full by the underwriters of such
option (the “Detachment Date”), but in no event will separate trading of the securities comprising
the Units be allowed until the Company files a Current Report on Form 8-K which includes an audited
balance sheet reflecting the receipt by the Company of the net proceeds of the Public Offering
including the proceeds received by the Company from the exercise of the Underwriter’s
over-allotment option and the issuance of a press release announcing when such separate trading
will begin.
2.4 Registration.
2.4.1 Warrant Register. The Warrant Agent shall maintain books (“Warrant
Register”) for 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.
All of the Warrants shall initially be represented by one or more Book-Entry Warrant
Certificates deposited with the Depository Trust Company (the “Depository”) and registered
in the name of Cede & Co., a nominee of the Depository. Ownership of beneficial interests in
the Warrants shall be shown on, and the transfer of such ownership shall be effected
through, records maintained by (i) the Depository or its nominee for each Book-Entry Warrant
Certificate, or (ii) institutions that have accounts with the Depository (such institution,
with respect to a Warrant in its account, a “Participant”).
If the Depository subsequently ceases to make its book-entry settlement system
available for the Warrants, the Company may instruct the Warrant Agent regarding making
other arrangements for book-entry settlement. In the event that the Warrants are not
eligible for, or it is no longer necessary to have the Warrants available in, book-entry
form, the Warrant Agent shall provide written instructions to the Depository to deliver to
the Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the Company
shall instruct the Warrant Agent to deliver to the Depository definitive Warrant
Certificates in physical form evidencing such Warrants. Such definitive Warrant Certificates
shall be in the form annexed hereto as Exhibit A with appropriate insertions,
modifications and omissions, as provided above.
2.4.2 Beneficial Owner; Registered Holder. The term “beneficial owner” shall
mean, on or after the Detachment Date, any person in whose name ownership of a beneficial
interest in the Warrants evidenced by a Book-Entry Warrant Certificate is recorded in the
records maintained by the Depository or its nominee, and prior to the Detachment Date, the
person in whose name the Unit to which such Warrant Certificate was initially attached as
registered upon the register relating to such Units. 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 (a
“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.
2.5 Warrant Attributes. The Private Warrants and the Public Warrants shall have the
same terms except (i) the holder of a Private Warrant may exercise the Private Warrant on a
cashless basis, as set forth below in Section 3.3.1, with respect to an Exercise After Notice of
Redemption provided in Section 6.3 below and (ii) the Company has no obligation to deliver any
securities pursuant to the exercise of any Public Warrant unless a registration statement under the
Act with respect to the Common Stock is effective.
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Public Warrant and Private Warrant shall, when countersigned
by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of (a) such
Public Warrant or Private Warrant, as the case may be, and (b) this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the price of $6.00 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 Warrant
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Agreement refers to the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. Upon ten (10) business days advance notice, the Company in its sole
discretion may lower the Warrant Price at any time prior to the Expiration Date.
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 merger, capital
stock exchange, stock purchase, asset acquisition or other similar business combination or a
combination of any of the foregoing, of one or more operating businesses having collectively, a
fair market value (as calculated in accordance with the requirements as set forth in the Company’s
Amended and Restated Certificate of Incorporation) of at least 80% of the balance in the trust
account (less the deferred underwriting discounts and commissions and taxes payable) at the time of
such acquisition (a “Business Combination”), or
___2008, and terminating at
5:00 p.m., New York City time on the earlier to occur of (i) ___, 2010, or
(ii) the date fixed for redemption of the Warrants as provided in Section 6 of this Agreement
(subject to extension in the limited circumstances set forth in Section 2 of the Warrants) (the
date on which the exercise period terminates, the “Expiration Date”). 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.
3.3 Exercise of Warrants.
3.3.1 Procedures. (i) A Registered Holder may exercise a Warrant by
delivering, not later than 5:00 P.M., New York time, on any Business Day during the Exercise
Period (the “Exercise Date”) to the Warrant Agent at its corporate trust department (i) the
Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Book-Entry
Warrant Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) free on the
records of the Depository to an account of the Warrant Agent at the Depository designated
for such purpose in writing by the Warrant Agent to the Depository from time to time, (ii)
an election to purchase the Shares underlying the Warrants to be exercised (“Election to
Purchase”), properly completed and executed by the Registered Holder on the reverse of the
Warrant Certificate or, in the case of a Book-Entry Warrant Certificate, properly delivered
by the Participant in accordance with the Depository’s procedures, and (iii) the Warrant
Price for each Warrant to be exercised in lawful money of the United States of America by
certified or official bank check or by bank wire transfer in immediately available funds;
provided, however, that at any time after the Company has given a Redemption Notice, the
holder of a Private Warrant may, in lieu of payment of the Exercise Price, surrender its
Private Warrant for that number of Shares equal to the quotient obtained by dividing (x) the
product of (1) the number of Shares underlying the surrendered Private Warrant and (2) the
difference between the Fair Market Value (defined below) and the Exercise Price, by (y) the
Fair Market Value. The “Fair Market Value” shall mean the average reported last sale price
of the Common Stock for the 10 trading days ending on the third trading day prior to the
date on which the notice of redemption is sent to holders of Warrant pursuant to Section 6
hereof.
(ii) If any of (A) the Warrant Certificate or the Book-Entry Warrants, (B) the
Election to Purchase, or (C) the Warrant Price therefor, is received by the Warrant Agent
after 5:00 P.M., New York time, on the specified Exercise Date, the Warrants will be deemed
to be received and exercised on the Business Day next succeeding the Exercise Date. If the
date specified as the Exercise Date is not a Business Day, the Warrants will be deemed to be
received and exercised on the next succeeding day that is a Business Day. If the Warrants
are received or deemed to be received after the Expiration Date, the exercise thereof will
be null and void and any funds delivered to the Warrant Agent will be returned to the Holder
or Participant, as the case may be, as soon as practicable. In no event will interest accrue
on funds deposited with the Warrant Agent in respect of an exercise or attempted exercise of
Warrants. The validity of any exercise of Warrants will be determined by the Company in its
sole discretion and such determination will be final and binding upon the Holder and the
Warrant Agent. Neither the Company nor the Warrant Agent shall have any obligation to inform
a Holder of the invalidity of any exercise of Warrants.
(iii) The Warrant Agent shall deposit all funds received by it in payment of the
Warrant Price in the account of the Company maintained with the Warrant Agent for such
purpose and shall advise the Company at the end of each day on which funds for the exercise
of the Warrants are received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
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(iv) The Warrant Agent shall, by 11:00 A.M. Eastern Time on the Business Day following
the Exercise Date of any Warrant, advise the Company and the transfer agent and registrar in
respect of (a) the shares of Common Stock (the “Shares”) issuable upon such exercise as to
the number of Warrants exercised in accordance with the terms and conditions of this
Agreement, (b) the instructions of each Registered Holder or Participant, as the case may
be, with respect to delivery of the Shares issuable upon such exercise, and the delivery of
definitive Warrant Certificates, as appropriate, evidencing the balance, if any, of the
Warrants remaining after such exercise, (c) in case of a Book-Entry Warrant Certificate, the
notation that shall be made to the records maintained by the Depository, its nominee for
each Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing the
balance, if any, of the Warrants remaining after such exercise and (d) such other
information as the Company or such transfer agent and registrar shall reasonably require.
(v) The Company shall, by 5:00 P.M., New York time, on the third Business Day next
succeeding the Exercise Date of any Warrant and the clearance of the funds in payment of the
Warrant Price, execute, issue and deliver to the Warrant Agent, the Shares to which such
Registered Holder or Participant, as the case may be, is entitled, in fully registered form,
registered in such name or names as may be directed by such Registered Holder or the
Participant, as the case may be. Upon receipt of such Shares, the Warrant Agent shall, by
5:00 P.M., New York time, on the fifth Business Day next succeeding such Exercise Date,
transmit such Shares to or upon the order of the Registered Holder or Participant, as the
case may be.
(vi) In lieu of delivering physical certificates representing the Shares issuable upon
exercise, provided the Company’s transfer agent is participating in the Depository Fast
Automated Securities Transfer program, the Company shall use its reasonable best efforts to
cause its transfer agent to electronically transmit the Shares issuable upon exercise to the
Registered Holder or Participant by crediting the account of Registered Holder’s prime
broker with Depository or of the Participant through its Deposit Withdrawal Agent Commission
system. The time periods for delivery described in the immediately preceding paragraph shall
apply to the electronic transmittals described herein.
3.3.2 Registration Statement Not Effective; Private Warrant Exercise. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities pursuant to the
exercise of any Public Warrants and shall have no obligation to settle the Public Warrant exercise
unless a registration statement under the Act with respect to the Common Stock is effective. In the
event that a registration statement with respect to the Common Stock underlying the Public
Warrants is not effective under the Act, the holder of such Public Warrant shall not be entitled to
exercise such Public Warrant and such Public Warrant may have no value and expire worthless. In the event that a
registration statement for the exercised Public Warrants is not effective or the prospectus thereunder is not current, the purchaser of a Public Unit
containing such Public Warrant, will have paid the full purchase price for the Public Unit solely
for the shares of Common Stock included in such Public Unit. The shares of common stock issuable
upon exercise of Private Warrants shall be unregistered shares.
3.3.3 No Net Cash Settlement. In no event will the Company be required to net
cash settle any Warrant exercise. Warrants may not be exercised by, or securities issued to,
any Registered Holder in any state in which such exercise would be unlawful.
3.4 Dividends. The accrual of dividends, if any, on the Shares issued upon the
valid exercise of any Warrant will be governed by the terms generally applicable to the Shares.
From and after the issuance of such Shares, the former Holder of the Warrants exercised will be
entitled to the benefits generally available to other holders of Shares and such former Holder’s
right to receive payments of dividends and any other amounts payable in respect of the Shares shall
be governed by, and shall be subject to, the terms and provisions generally applicable to such
Shares.
3.5 Fractional Shares. Warrants may be exercised only in whole numbers of Shares. No
fractional shares of Common Stock are to be issued upon the exercise of the Warrant, but rather the
number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. If
fewer than all of the Warrants evidenced by a Warrant Certificate are exercised, a new Warrant
Certificate for the number of unexercised Warrants
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remaining shall be executed by the Company and countersigned by the Warrant Agent as provided
in Section 2 hereof, and delivered to the holder of this Warrant Certificate at the address
specified on the books of the Warrant Agent or as otherwise specified by such Registered Holder. If
fewer than all the Warrants evidenced by a Book-Entry Warrant Certificate are exercised, a notation
shall be made to the records maintained by the Depository, its nominee for each Book-Entry Warrant
Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining
after such exercise.
3.5 Taxes. The Company shall not be required to pay any stamp or other tax or
governmental charge required to be paid in connection with any transfer involved in the issue of
the Shares upon the exercise of Warrants; and in the event that any such transfer is involved, the
Company shall not be required to issue or deliver any Shares until such tax or other charge shall
have been paid or it has been established to the Company’s satisfaction that no such tax or other
charge is due.
3.6 Valid Issuance. All shares of Common Stock issued upon the proper exercise of a
Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.7 Date of Issuance. Each person in whose name any such certificate for shares of
Common Stock 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.
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 shares of Common Stock is increased by a
stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock, or
other similar event, then, on the effective date of such stock dividend, split-up or similar event,
the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares of Common Stock.
4.2 Extraordinary Dividend. If the Company, at any time during the Exercise Period, shall pay
a dividend or make a distribution in cash, securities or other assets to the holders of Common
Stock (or other shares of the Company’s capital stock into which the Warrants are convertible),
other than (w) as described in Sections 4.1, 4.3 and 4.5, (x) regularly quarterly or other periodic
dividends, (y) in connection with the conversion rights of the holders of Common Stock upon
consummation of the Company’s initial Business Combination (as such term is used in the
Registration Statement) or (z) in connection with the Company’s liquidation and distribution of its
assets upon its failure to consummate a Business Combination (any such non-excluded event being
referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased,
effectively immediately after the effective date of such Extraordinary Dividend, by the amount of
cash and/or the fair market value (as determined by the Company’s Board of Directors, in good
faith) of any securities or other assets paid on each share of Common Stock in respect of such
Extraordinary Dividend.
4.3 Aggregation of Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding shares of Common Stock is decreased by a
consolidation, combination, reverse stock split or reclassification of shares of Common Stock or
other similar event, then, on the effective date of such consolidation, combination, reverse stock
split, reclassification or similar event, the number of shares of Common Stock issuable on exercise
of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.4 Adjustments in Warrant Price. Whenever the number of shares of Common Stock
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 shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
4.5 Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding shares of Common Stock (other than a change
covered by Section 4.1 or 4.2 hereof or that solely affects the par value of such shares of Common
Stock), or in the case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization of the outstanding
shares of Common Stock), 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 shares of Common Stock 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, merger or consolidation, or upon a dissolution following any such sale or transfer,
that the Warrant
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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 shares of
Common Stock 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, mergers 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.
4.6 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 Detachment Date, the 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 Public Unit or a Private Unit on the register relating to such
Units shall operate also to transfer the Warrants included in such Unit.
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 except as otherwise provided herein or in any Book-Entry Warrant Certificate, each Book-Entry
Warrant Certificate may be transferred only in whole and only to the Depository, to another nominee
of the Depository, to a successor depository, or to a nominee of a successor depository; provided
further, 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.
Upon any such registration of transfer, the Company shall execute, and the Warrant Agent shall
countersign and deliver, in the name of the designated transferee a new Warrant Certificate or
Warrant Certificates of any authorized denomination evidencing in the aggregate a like number of
unexercised Warrants.
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.
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6. Redemption.
6.1 Redemption. At any time during the Exercise Period, the Company may, at its
option, redeem all (but not part) of the then outstanding Warrants upon giving notice in accordance
with Section 6.2, at the price of $0.01 per Warrant (the “Redemption Price”); provided, that the
last sales price of the 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 the Redemption Notice, as defined below, is given.
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 (the “Redemption
Date”). 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 Warrant Register (the
“Redemption Notice”). Any notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given on the date sent 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 the Redemption Notice 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. 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 Common Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that will be sufficient to
permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration of Common Stock. 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, if any, and solely in those states, in which the sale of the Public Warrants was initially
qualified, the Common Stock issuable upon exercise of the Public Warrants. In either case, the
Company will use its reasonable best efforts to cause such Registration Statement to become
effective and to maintain the effectiveness of such registration statement until the expiration of
the Public Warrants in accordance with the provisions of this Agreement.
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 shares of Common Stock 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.
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8.2 Resignation, Consolidation, or Merger 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’ prior written notice
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 Common Stock 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.
8.3 Fees and Expenses of Warrant Agent.
8.3.1 Remuneration. The Company agrees to pay the Warrant Agent $200 per month
administrative fees plus reasonable transaction charges for its services as 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
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 Chief Executive Officer, President 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.
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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 shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common Stock 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 Common Stock through the exercise of Warrants.
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 Fund 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:
MBF Healthcare Acquisition Corp.
121 Alhambra Acquisition Corp.
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
121 Alhambra Acquisition Corp.
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
with a copy in each case to:
Akerman Senterfitt
Xxx Xxxxxxxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx, Esq.
Xxx Xxxxxxxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx, Esq.
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: Compliance Department
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
9
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 inconvenience 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, any right, remedy, or claim under or by reason of this Warrant Agreement or
of any covenant, condition, stipulation, promise, or agreement 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 their successors and assigns and of the Registered
Holders.
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 any Registered Holder. The Warrant Agent may require
any such Registered 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.
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 Agreement may be amended by the parties hereto without the
consent of any Registered Holder for the purpose of curing any ambiguity, or 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 Agreement as the parties may deem necessary
or desirable and that the parties deem shall not adversely affect the interest of the Registered
Holders. 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, without such consent.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day
and year first above written.
| Attest: | MBF HEALTHCARE ACQUISITION CORP. | |
| |
By:
Title: Chief Financial Officer |
|
| Attest | CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |
| |
By:
Title: Chairman |
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EXHIBIT A
Form
of Warrant
