WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made as of the ___ day of
__________, 2007 between Western United Financial Corporation, a Delaware
corporation, with offices at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (the "Company"), and Xxxxx Fargo Bank, N.A., a Delaware
corporation, with offices at 000 Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx Xx. Xxxx,
Xxxxxxxxx 00000 (the "Warrant Agent").
WHEREAS, the Company is engaged in a public offering (the "Public
Offering") of units of the Company, each unit consisting of one share of common
stock of the Company, par value $0.01 per share (the "Common Stock"), and one
warrant exercisable for one share of Common Stock, and in connection therewith,
has determined to issue and deliver up to (i) 6,250,000 units plus 937,500 units
if the underwriters exercise their over-allotment option (the "Public Units") to
the public investors for $8.00 per unit and (ii) 312,500 units to Sandler
X'Xxxxx & Partners, L.P. (the "Representative") or its designees (the
"Representative's Units" and, together with the Public Units, the "Units"), for
$10.00 per unit, in each case subject to adjustment as described herein;
WHEREAS, the warrants that are part of the Public Units and the
Representative's Units are referred to herein, respectively, as the "Public
Warrants" and the "Representative's Warrants" (collectively, the "Warrants");
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "SEC") a Registration Statement 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 Representative's
Warrants and the Common Stock issuable upon exercise of the Public Warrants and
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, call, 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, 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
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substantially the form of Warrant attached as Exhibit A hereto, the provisions
of which are incorporated herein and shall be signed by, or bear the facsimile
signature of, the President and 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
transfers 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 Warrants. The securities comprising the Units will
not be separately transferable until ninety (90) days after the date hereof
unless the Representative informs the Company of its decision to allow earlier
separate trading, but in no event will the Representative allow separate trading
of the securities comprising the Units until the Company files a Current Report
on Form 8-K with the SEC which includes an audited balance sheet reflecting the
receipt by the Company of the gross proceeds of the Public Offering including
the proceeds received by the Company from the exercise of the Underwriter's
over-allotment option, if the over-allotment option is exercised prior to the
filing of the Form 8-K.
2.5 Representative's Warrants. The Representative's Warrants shall have
the same terms and be in the same form as the Public Warrants except with
respect to the Warrant Price as set forth below in Section 3.1.
3. TERMS AND EXERCISE OF WARRANTS.
3.1. Warrant Price. Each Public Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Public Warrant and of this 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. Each Representative's Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Representative's Warrant and of this
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $7.50 per whole share, subject to the
adjustments provided in Section 4 hereof. The term "Warrant Price" as used in
this Agreement refers to the price per share at which Common Stock may be
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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; provided,
however, that any change in the Warrant Price must apply equally to all of the
warrants, except that any amendment to the term of the Representative's Warrants
shall be subject to any limitations and conditions that may be imposed by NASD
Corporate Finance Rule 2710, and provided further that any reduction in Warrant
Price must remain in effect for at least twenty (20) business days.
3.2. Duration of Warrants. A Warrant may be exercised only during the
period ("Exercise Period") commencing on the later of (i) the completion of the
initial acquisition by the Company of one or more banks, thrifts and their
respective holding companies and other financial services organizations through
a merger, capital stock exchange, asset acquisition, exchangeable share
transaction, stock purchase or other similar business combination (a "Business
Combination"), and (ii) ___________, 2008 (one year after the effective date of
the Registration Statement), and terminating at 5:00 p.m., New York City time on
the earlier to occur of (i) ______________, 2011 or (ii) the date fixed for
calling the Warrants as provided in Section 6 of this Agreement ("Expiration
Date"). Except with respect to the right to receive the Call 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, that any
extension of the duration of the Warrants must apply equally to all of the
Warrants except that any amendment to the term of the Representative's Warrants
shall be subject to any limitations and conditions that may be imposed by NASD
Corporate Finance Rule 2710. Should the Company wish to extend the Expiration
Date of the Warrants, the Company shall provide advance notice to the American
Stock Exchange, and shall, if possible, provide at least two (2) months advance
notice to the American Stock Exchange, but in no event will the Company provide
less than twenty (20) days advance notice of such extension to the American
Stock Exchange.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this
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, 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 share of Common Stock 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
Common Stock, and the issuance of the Common Stock.
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 shares of Common Stock to which such
holder 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, and
shall have no obligation to settle the Warrant exercise unless a registration
statement under the Act with respect to the Common Stock is effective, subject
to the Company satisfying its obligations under Section 7.4 to use its best
efforts. In the event that a registration statement with respect to the Common
Stock underlying a Warrant is not effective under the Act, the holder of such
Warrant shall not be entitled to exercise such Warrant. Notwithstanding anything
to the contrary contained in this Agreement, under no circumstances will the
Company be required to net cash settle the exercise of the Warrants. Warrants
may not be exercised by, or
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securities issued to, any registered holder in any jurisdiction in which such
exercise would be unlawful. As a result of the provisions of this Section 3.3.2,
any or all of the Warrants may expire unexercised. In no event shall the
registered Holder of a Warrant be entitled to receive any monetary damages if
the Common Stock underlying the Warrants have not been registered by the Company
pursuant to an effective registration statement or if a current prospectus is
available for delivery by the Warrant Agent, provided the Company has fulfilled
its obligation to use its best efforts to effect such registration and ensure a
current prospectus is available for delivery by the Warrant Agent.
3.3.3. 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.
3.3.4. 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. 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.
4.3. Adjustments in Exercise Price. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Sections 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.
4.4. 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 Sections 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
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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 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 Sections 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 each 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. No Fractional Shares. Notwithstanding any provision contained in this
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 or down to the nearest whole number the number of
the shares of Common Stock 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.
4.8. Extraordinary Dividends. 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, 4.2 or 4.4, (x) regular 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 or (z) in
connection with the Company's liquidation and the 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, effective 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.
5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1. Registration of Transfer. The Warrant Agent shall register the
transfer, from time to time, of
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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.
5.2. 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.
5.3. 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.
5.4. Service Charges. No service charge shall apply to any holder of
Warrants for any exchange or registration of transfer of Warrants.
5.5. 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. CALL.
6.1. Call. Subject to Section 6.4 hereof, not less than all of the
outstanding Warrants may be called, 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 ("Call Price"), provided that (i) the last sales price of the
Common Stock has been at least $11.50 per share (the "Trigger Price"), 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 the call is given
and (ii) the Public Warrants and the Representative's Warrants and the Common
Stock underlying such Warrants are covered by an effective registration
statement and a current prospectus from the beginning of the measurement period
through the date fixed for the call.
6.2. Date Fixed for, and Notice of, the Call. In the event the Company
shall elect to call all of the Warrants, the Company shall fix a date for the
call, which date shall be prior to the expiration of the Warrants (the "Call
Date"). Notice of the call shall be mailed by first class mail, postage prepaid,
by the Company not less than thirty (30) days prior to the date fixed for the
call to the registered holders of the Warrants to be called 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 on the date sent whether or not the registered holder received such
notice. In the event of any adjustment to the Warrant Price or the number of
shares of Common Stock issuable on exercise of each Warrant as provided in
Section 4, a proportional adjustment shall be made to the Trigger Price.
6.3. Exercise after Notice of the Call. The Warrants may be exercised, for
cash at any time after notice of the call shall have been given by the Company
pursuant to Section 6.2 hereof and prior to the
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Call Date. On and after the Call Date, the record holder of the Warrants shall
have no further rights except to receive, upon surrender of the Warrants, the
Call Price.
6.4 Outstanding Warrants Only. The Company understands that the call
rights provided for in 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 the call. However, once such purchase rights are
exercised, the Company may call the Warrants issued upon such exercise provided
that the criteria for the call is met.
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 SEC 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 Public Warrants and
the Representative's Warrants were initially offered by the Company, the Common
Stock issuable upon exercise of the Public Warrants and the Representative's
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective on or prior to the commencement of the Exercise Period
and use its best efforts to maintain the effectiveness of such registration
statement and ensure that a current prospectus is on file with the SEC until the
expiration of the Warrants in accordance with the provisions of this Agreement;
provided, however, that the Company shall not be obligated to deliver
securities, and shall not have penalties for failure to deliver securities, if a
registration statement is not effective or a current prospectus is not on file
with the SEC at the time of exercise by the holder.
7.5. Delivery of Prospectus or Notice. Upon the exercise of any Warrant,
if the Company requests, the Warrant Agent shall deliver to the Holder of such
Warrant, prior to or concurrently with the delivery of the Shares issued upon
such exercise, in accordance with the Company's request, either (i) a prospectus
relating to the Shares deliverable upon exercise of Warrants and complying in
all material respects with the Securities Act or (ii) the notice referred to in
Rule 173 under the Securities Act.
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
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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.
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'
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 thirty (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
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.
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8.4.1. Reliance on Company Statement. Whenever in the performance of its
duties under this 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 or Chairman of the Board of Directors 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 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 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 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, consent or request to be given in connection
with any of the terms or provisions of this Agreement shall be in writing and
shall be sent by express mail or similar private courier service, by certified
mail (return receipt requested), by hand delivery or by facsimile transmission:
if to the Warrant Agent, to:
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Shareowner Services
9
000 Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, Xxxxxxxxx 00000
Attn: Account Management
if to the Company, to:
Western United Financial Corporation
00 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: V. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
in either case with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Xxxxx Xxxxx, Esq.
Fax: (000) 000-0000
9.3. Applicable Law. This Agreement and the Warrants shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that State, including, without
limitation, Sections 5-1401 and 5-1402 of the New York General Obligations Law
and the New York Civil Practice Laws and Rules 327(b). 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 2.5, 6.1, 6.4, 7.4 and 9.2 hereof,
the Representative, any right, remedy, or claim under or by reason of this
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 2.5, 6.1, 6.4, 7.4 and 9.2 hereof. All
covenants, conditions, stipulations, promises, and agreements contained in this
Agreement shall be for the sole and exclusive benefit of the parties hereto (and
the Representative with respect to the Sections 2.5, 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 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.
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9.6. Counterparts. This Agreement may be executed in any number of
original or facsimile 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 Agreement and shall not affect the interpretation
hereof.
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. All other modifications or amendments,
including, but not limited to, any amendment to increase the Warrant Price or
shorten the Exercise Period, shall require the written consent of each of the
Representative 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 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.
WESTERN UNITED FINANCIAL CORPORATION
By:_________________________________
Name: V. Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
XXXXX FARGO BANK, N.A.
By:_________________________________
Name:
Title:
[Warrant Agreement]
