WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement") is made as of the ___ day of
__________, 2006 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) 10,000,000 units (the "Public
Units") to the public investors for $8.00 per unit, (ii) 62,500 units (the
"Founder Units") to Western United Funding, LLC for $8.00 per unit and (iii)
500,000 units to Sandler X'Xxxxx & Partners, L.P. (the "Representative") or its
designees (the "Representative's Units" and, together with the Public Units and
the Founder 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, the Founder
Units and the Representative's Units are referred to herein, respectively, as
the "Public Warrants," the "Founder 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
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registered form only, shall be in 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 Founder Warrants and Representative's Warrants. The
Representative's Warrants and the Founder Warrants shall have the same terms and
be in the same form as the Public Warrants except (i) with respect to the
Warrant Price as set forth below in Section 3.1 and (ii) the restriction on
transfer of the Founder Warrants pursuant to Section 3.2 of that certain
Security Escrow Agreement of even date herewith (the "Escrow Agreement").
3. TERMS AND EXERCISE OF WARRANTS.
3.1. Warrant Price. Each Public Warrant and each Founder Warrant shall,
when countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Public Warrant or Founder Warrant and of this
Agreement, to purchase from the Company the number of shares of
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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 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; provided, however, that with
respect to any Warrants purchased by Western United Funding, LLC during the
six-month period following separate trading of the Warrants included in the
Company's Units, in the event of a call pursuant to Section 6 hereof, such
stockholder may pay the Warrant Price by surrendering his Warrant for that
number of shares of Common Stock equal to the quotient obtained by dividing (x)
the product of the number of shares of Common Stock underlying the Warrant,
multiplied by the difference between the Warrant Price and the "Fair Market
Value" (defined below) by (y) the Fair Market Value. The "Fair Market Value"
shall mean the average reported last sale price of the Common Stock for the ten
(10) trading days ending on the 3rd trading day prior to the date on which the
notice of the call is sent to holders of Warrant pursuant to Section 6 hereof.
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
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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. For the avoidance of doubt, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Founder Warrant and shall have no obligation to settle the Founder
Warrant exercise unless a registration statement under the Act with respect to
the Common Stock underlying the Public Warrants is effective. 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
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
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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 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
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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 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.
5.6. Restrictions. The Founder Warrants may not be sold, transferred,
pledged, hypothecated or assigned until the date which is ninety (90) days
following the consummation of a Business Combination and are subject to the
terms and conditions of the Escrow Agreement.
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
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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 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
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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 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.
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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.
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
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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
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. 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 conflicts of law principles
that would result in the application of the substantive laws of another
jurisdiction. 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.
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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.
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:
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