FORM OF WARRANT AGREEMENT
EXHIBIT 4.4
This
Warrant Agreement (the “Agreement”) made as of _____,
2010, between SMG Indium Resources Ltd., a Delaware corporation, with offices at
00 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 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 has undertaken a public offering (the “Public Offering”) of units of
the Company (the “Units”), each Unit consisting
of one share of common stock, par value $.001 per share, of the Company (the
“Common Stock”) and one
warrant exercisable for one share of Common Stock, and in connection therewith,
has determined to issue and deliver (i) 5,000,000 Warrants (the “Public Warrants”) to the
public investors and (ii) 250,000 Warrants to Sunrise Securities Corp. and
Xxxxxx & Xxxxxxx, LLC (the “Representatives”) or its
designees (the “Representatives’ Warrants”
and, together with the Public Warrants, the “Warrants”), in each case
subject to adjustments as described herein;
WHEREAS,
the Company has filed, with the Securities and Exchange Commission (the “Commission”), a registration
statement, No. 333-165930, 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, 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, the legally valid and binding
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 Public
Warrant. Each Warrant shall be issued in registered form only, shall be
in substantially the form of Warrant attached hereto as Exhibit A, the
provisions of which are incorporated herein, and shall be signed by, or bear the
facsimile signature of, (i) the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) the Treasurer, Secretary or Assistant
Secretary of the Company, and shall bear a facsimile of the Company’s seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
2.2 Form of Representatives’
Warrant. The Representatives’ Warrants will be issued in the same form as
the Public Warrants, except that each of the Representatives’ Warrants, (i) is
exercisable at a price equal to 110% of the exercise price of the Public
Warrants, (ii) subject to certain limited exceptions described below, will not
be transferable or salable for a period of one year after the date of the final
prospectus included in the Registration Statement, (ii) will be exercisable on a
cashless basis in accordance with Section 3.1(b) hereof, (iv) will not be
redeemable by the Company, and (v) may be exercised for unregistered shares so
long as a registration statement relating to the Common Stock issuable upon
exercise of the warrants is not effective and current.
2.3 Effect of
Countersignature. Unless and until countersigned by the Warrant Agent
pursuant to this Warrant Agreement, a Warrant shall be invalid and of no effect
and may not be exercised by the holder thereof.
2.4 Registration.
2.4.1 Warrant Register. The
Warrant Agent shall maintain books (“Warrant Register”), for the
registration of the original issuance and 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.
2.4.2 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.
2.5 Detachability of
Warrants. The securities comprising the Units may trade separately
beginning on the 90th day
after the effective date of the registration statement unless the
Representatives determines that an earlier date is acceptable, but in no event
will the Representatives permit separate trading of the common stock and
warrants until the business day following the earlier to occur of (i) the
expiration or termination of the underwriters’ over-allotment option or (ii) its
exercise in full (the “Detachment
Date”).
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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 $5.75 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
$5.50 per whole share, subject to the adjustments provided in Section 4 hereof
and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this
Agreement refers to the price per share at which 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 (as defined
below); provided, however, that any change in the Warrant Price must apply
equally to all of the Warrants, and provided further that any amendment to the
term of the Representative’s Warrants shall be subject to any limitations and
conditions that may be imposed by FINRA Corporate Finance Rule 2710, and
provided further that any reduction in Warrant Price shall remain in effect for
at least twenty (20) business days.
3.2 Duration of Warrants.
Except as set forth in this Section 3.2, a Warrant may be exercised only during
the period (“Exercise
Period”) commencing immediately upon the effectiveness of the
Registration Statement, and terminating at 5:00 p.m., New York City time, on the
earlier to occur of (i) _______, 2015 and (ii) the date fixed for redemption of
the Warrants as provided in Section 6 of this Agreement (“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; provided, however, that any such
extension of the duration of the Warrants shall apply equally to all of the
Warrants, except that any amendment to the terms of the Representative’s
Warrants shall be subject to any limitations and conditions that may be imposed
by FINRA Corporate Finance Rule 2710. Should the Company wish to extend the
Expiration Date of the Warrants, the Company shall provide at least twenty (20)
days advance notice to the NASDAQ Stock Market, LLC (or the principal trading
market for the Warrants) of such extension.
Notwithstanding
the foregoing, a Warrant can expire unexercised regardless of whether a
registration statement is current under the Act with respect to the Common Stock
issuable upon exercise of the Warrants.
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3.3 Exercise of
Warrants.
3.3.1
Payment. Subject to
the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, the Warrant Price for each whole 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, as
follows:
(a) in
cash, good certified check or good bank draft payable to the order of the
Company (or as otherwise agreed to by the Company); or
(b) with
respect to any Representatives’ Warrants, by surrendering such Representatives’
Warrants 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 Representatives’ Warrants, multiplied by the difference between
the Warrant Price and the Fair Market Value (as defined below) by (y) the Fair
Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market
Value” shall mean the average reported last sale price of the Common Stock for
the five trading days ending on the trading day prior to the date on which the
Representatives’ Warrants are exercised.
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 representing the number of full shares of Common Stock to which he,
she or it 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.
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 or entity 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.
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4. Adjustments.
4.1 Stock Dividends -
Split-Ups. If, at any time during the Exercise Period, 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
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 (i) as described in
Sections 4.1, 4.3 or 4.5, (ii) regular quarterly or other periodic dividends,
(iii) in connection with the Company’s liquidation and the distribution of its
assets (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.
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 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, 4.2 and
4.3 above, the Warrant Price shall be adjusted (to the nearest cent) by
multiplying such Warrant Price, immediately prior to such adjustment, by a
fraction, (i) 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 (ii) 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 Sections 4.1, 4.2 or 4.3 hereof or one 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, 4.2 or 4.3, then such adjustment
shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this
Section 4.5. The provisions of this Section 4.5 shall similarly apply
to successive reclassifications, reorganizations, mergers or consolidations,
sales or other transfers.
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4.6 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, 4.4 or 4.5 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.
4.7
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 to the nearest whole number the number of the
shares of Common Stock to be issued to the Warrant holder.
4.8
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 Public Warrants
may be transferred or exchanged only together with the Unit in which such
Warrant is included, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Unit. Furthermore, each transfer of a
Public Unit on the register relating to such Units shall operate also to
transfer the Warrants included in such Unit. From and after the Detachment Date
this Section 5.1 will have no further force and effect.
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5.2 Registration of
Transfer. The Warrant Agent shall register the transfer, from time to
time, of any outstanding Warrant into 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 the Company’s request.
5.3 Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent, together with
a written request for exchange or transfer, and, thereupon, the Warrant Agent
shall issue in exchange therefor one or more new Warrants as requested by the
registered holder of the Warrants so surrendered, representing an equal
aggregate number of Warrants; provided, however, that in the event a Warrant
surrendered for transfer bears a restrictive legend, the Warrant Agent shall not
cancel such Warrant and shall 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 be made 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. Redemption.
6.1 Redemption. Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time after they become
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2 hereof, at a redemption price of
$.01 per Warrant (the “Redemption Price”), provided
that (i) the last sales price of the Common Stock has been equal to or greater
than $8.00 per share (the “Trigger Price”) for any twenty
(20) trading days within a thirty (30) trading day period ending on the third
business day prior to the date on which notice of redemption is given and (ii)
the Public Warrants and the shares of 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
redemption. The provisions of this Section 6.1 may not be
modified, amended or deleted without the prior written consent of the
Representatives.
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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”), which shall
be prior to the expiration of the Warrants. Notice of redemption shall be mailed
by first class mail, postage prepaid, by the Company not less than thirty (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. 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
Redemption. The Warrants may be exercised in accordance with
Section 3 of this Warrant Agreement at any time after notice of redemption
shall have been given by the Company pursuant to Section 6.2 hereof and
prior to the time and date fixed for redemption. On and after the redemption
date, the record holder of the Warrants shall have no further rights except to
receive, upon surrender of the Warrants, the Redemption Price.
6.4 No Other Rights to Cash
Payment. Except for a redemption in accordance with this Section 6, no
holder of any Warrant shall be entitled to any cash payment whatsoever from the
Company in connection with the ownership, exercise or surrender of any Warrant
under this Agreement, regardless of whether a registration statement is current
under the Act with respect to the Common Stock issuable upon exercise of the
Warrants.
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 terms 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.
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7.4 Registration of Common
Stock. The Company agrees that, prior to the commencement of the Exercise
Period, it shall file with the Commission a post-effective amendment to the
Registration Statement, or a new registration statement, for the registration
under the Act of, and it shall take such action as is necessary to qualify for
sale in those states in which the 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, to maintain
the effectiveness of such registration statement and to ensure that a current
prospectus is on file with the Commission until the expiration or redemption of
the Warrants in accordance with the provisions of this Agreement; provided,
however, that the Company shall not be obligated to deliver shares of Common
Stock issuable upon exercise of the Public Warrants, and shall not have
penalties nor be liable to the Warrant holder for failure to deliver shares, if
a registration statement is not effective or a current prospectus is not on file
with the Commission at the time of exercise of the Public Warrant by a holder.
In addition, the Company agrees to use its reasonable efforts to register such
securities under the blue sky laws of the states of residence of the exercising
warrant holders to the extent an exemption is not available. The
provisions of this Section 7.4 may not be modified, amended or deleted
without the prior written consent of the Representative.
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 of Common Stock issuable upon
such exercise, in accordance with the Company’s request, either (i) a prospectus
relating to the shares of Common Stock deliverable upon exercise of the Warrants
and complying in all material respects with the Act or (ii) the notice referred
to in Rule 173 under the Act.
7.6
Limitation on Monetary
Damages. In no event shall the registered holder of a Public Warrant be
entitled to receive monetary damages for failure to settle any Warrant exercise
if the Common Stock issuable upon exercise of the Public Warrants has not been
registered with the Securities and Exchange Commission pursuant to an effective
registration statement or if a current prospectus is not available for delivery
by the Warrant Agent, provided the Company has fulfilled its obligations under
Section 7.4 to use its best efforts to effect the registration under the Act of
the Common Stock issuable upon exercise of the Warrants.
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’ 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, her or its
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. 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 have its
principal office in the Borough of Manhattan, City and State of New York, and be
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. 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 on the part
of the Company or the Warrant Agent.
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 Warrant Agent hereunder as set forth on Exhibit B hereto 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.
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8.3.2 Further Assurances.
The Company agrees to perform, execute, acknowledge and deliver, or cause to be
performed, executed, acknowledged and delivered, all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability of Warrant
Agent.
8.4.1 Reliance on Company
Statement. Whenever, in the performance of its duties under this Warrant
Agreement, the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer,
Chairman of the Board of Directors or President 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 Warrant 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
Warrant 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 Warrant
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.
9. Miscellaneous
Provisions.
9.1 Successors. All the
covenants and provisions of this Warrant 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.
11
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 express mail or similar
overnight courier service, by certified mail (return receipt requested), by hand
delivery or by facsimile transmission:
If to the
Company, to:
00 Xxxxxxxxxx Xxxxx, Xxxxx
000
Xxxxxxx, Xxxxxxxxxxxx
00000
Attn: Xxxxx X.
Xxxxxxxx
If
to the Warrant Agent, to:
Continental Stock Transfer & Trust
Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Compliance Department
with a
copy in each case (which shall not constitute notice) to:
Ellenoff
Xxxxxxxx & Schole LLP
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
and
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx &
Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx,
Esq.
and
Sunrise
Securities Corp.
000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Low
and
Xxxxxx
& Xxxxxxx, LLC
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
●
Fax:
●
12
Any
notice, sent pursuant to this Agreement shall be effective, if delivered by
hand, upon receipt thereof by the party to whom it is addressed, if sent by
overnight courier, on the next business day of the delivery to the courier, and
if sent by registered or certified mail on the third day after registration or
certification thereof.
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 the conflict of laws principles thereof. The
Company and the Warrant Agent each 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
and the Warrant Agent each 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 or the Warrant Agent 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 or the Warrant Agent in any action,
proceeding or claim.
9.4 Persons Having Rights under
this Warrant Agreement. Nothing in this Agreement expressed and nothing
that may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation, other than the
parties hereto and the registered holders of the Warrants and, for the purposes
of Sections 6.1, 6.4, 7.4, 9.2 and 9.8 hereof, the Representatives, 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 6.1, 6.4, 7.4, 9.2 and 9.8 hereof. All covenants, conditions,
stipulations, promises and agreements contained in this Warrant Agreement shall
be for the sole and exclusive benefit of the parties hereto (and the
Representative, with respect to the Sections 6.1, 6.4, 7.4, 9.2 and 9.8 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, her or its Warrant for
inspection.
9.6 Counterparts; Facsimile
Signatures. 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 one and the same
instrument. Facsimile signatures shall constitute original signatures for all
purposes of this Warrant Agreement. Facsimile signatures shall
constitute original signatures for all purposes of this Agreement.
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.
13
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 of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Warrant Agreement as the parties may deem necessary or desirable and
that the parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of each of 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, respectively, without such
consent.
9.9 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
14
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
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Attest
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By:
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Name: Xxxxx
X. Xxxxxxxx
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Title: President
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Attest
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CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
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By:
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Name:
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Title:
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15
EXHIBIT
A
Form of Public
Warrant
16
EXHIBIT
B
Warrant Agent
Fees
17
