EXHIBIT 4.4
FORM OF
WARRANT AGREEMENT
This Warrant Agreement (the "Agreement") made as of __, 2006 between
Navitas International Corporation, a Delaware corporation, with offices at 0
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and Continental
Stock Transfer & Trust Company, a New York corporation, with offices at 00
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public
Offering") of Units ("Units") and, in connection therewith, has determined to
issue and deliver up to 34,500,000 Warrants ("Public Warrants") to the public
investors, and (ii) 1,500,000 Warrants to FTN Midwest Securities Corp. ("FTN";
together with Canaccord Xxxxx, the "Underwriters") or its designees (the
"Underwriters' Warrants" and, together with the Public Warrants, the "Warrants")
as part of a Unit Purchase Option, dated as of [ ], 2006 (the "Purchase
Option"), each Public Warrant evidencing the right of the holder thereof to
purchase one share of common stock, par value $0.0001 per share, of the
Company's Common Stock ("Common Stock") for $5.00, subject to adjustment as
described herein, and each Underwriters' Warrant evidencing the right of the
holder thereof to purchase one share of Common Stock for $6.25, subject to
adjustment described herein; and
WHEREAS, the Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") Registration Statement No. 333-130697 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 Units, the
Warrants and the Common Stock issuable upon exercise of the Warrants; and
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 and exercise of the
Warrants; and
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 substantially the form of Exhibit A
hereto, the provisions of which are
incorporated herein, and shall be signed by, or bear the facsimile
signature of, the Chairman of the Board or Chief Executive Officer 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. Such signature by the Warrant Agent upon any
Warrant executed by the Company shall be conclusive evidence that such
Warrant Certificate has been duly issued under the terms of this
Agreement.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall
maintain books (the "Warrant Register"), for the registration
of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the
Warrant Agent shall issue and register the Warrants in the
names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the
Warrant Agent by the Company.
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 be separately transferable on the earlier to occur of
the expiration of the Underwriters' over-allotment option or twenty
(20) days after the exercise in full or in part by the Underwriters of
such option, but in no event will the Underwriters allow separate
trading of the securities comprising the Units until the Company files
a Current Report on Form 8-K with the Commission 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 Underwriters' over-allotment
option, if the over-allotment option is exercised prior to the filing
of the Form 8-K.
2.5. Warrants and Underwriters' Warrants. The
Underwriters' 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.
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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 $5.00 per whole share, subject to
the adjustments provided in Section 4 hereof and in the last sentence
of this Section 3.1. Each Underwriters' Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder
thereof, subject to the provisions of such Underwriters' Warrant and of
this Agreement, to purchase from the Company the number of shares of
Common Stock stated therein, at the price of $6.25 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 in Section 3.2); provided that any such
reduction shall be identical in percentage terms among all of the
Warrants.
3.2. Duration of Warrants. A Warrant may be exercised only
during the period ("Exercise Period") commencing on the later of (i)
the consummation by the Company of a merger, capital stock exchange,
asset acquisition stock purchase or other similar business combination
("Business Combination") (as described more fully in the Company's
Registration Statement) or (ii) [one year from date of prospectus] and
terminating at 5:00 p.m., New York time on the earlier to occur of (x)
[four years from the date of the prospectus] or (y) the date fixed for
redemption of the Warrants as provided in Section 6.2 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 that any such
extension shall be identical in duration among all of the Warrants.
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, 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, in lawful money of the United States,
in cash, certified check or 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. Notwithstanding the foregoing, the Underwriters
Warrants, when countersigned by the Warrant Agent, may be
exercised by surrendering such Underwriters'
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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 Underwriters' Warrant,
multiplied by the difference between the Underwriters' 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 third business day prior
to the date on which notice of exercise is given to the
Company, or in the event that the Company has given a notice
of redemption to the holder of such Underwriters' Warrant, on
the third business day prior to the date on which any notice
of redemption is sent to holders of the Underwriters' 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 of such Warrant a
certificate or certificates for 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. Notwithstanding
the foregoing, the Company shall not be obligated to deliver
any securities pursuant to the exercise of a Warrant unless
(i) a registration statement under the Act with respect to the
Common Stock issuable upon such exercise is effective, or (ii)
in the opinion of counsel to the Company, the exercise of the
Warrants is exempt from the registration requirements of the
Act and such securities are qualified for sale or exempt from
qualification under applicable securities laws of the states
or other jurisdictions in which the registered holders reside.
Warrants may not be exercised by, or securities issued to, any
registered holder in any state in which such exercise would be
unlawful.
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
non-assessable.
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
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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 below, 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 Section 4.1 and 4.2 above, the Warrant Price
shall be adjusted (to the nearest cent) by multiplying such Warrant
Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of
shares of Common Stock so purchasable immediately thereafter.
4.4. 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 Section 4.1 or
4.2 hereof or that solely affects the par value of such shares of
Common Stock), or in the case of any merger or consolidation of the
Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and that does
not result in any reclassification or reorganization of the outstanding
shares of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the assets or other property of the
Company as an entirety or substantially as an entirety in connection
with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and
upon the terms and conditions specified in the Warrants and in lieu of
the shares of Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented
thereby, the kind and amount of shares of stock or other securities or
property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, that the Warrant holder would have
received if such Warrant holder had exercised his, her or its
Warrant(s) immediately prior to such event; and if any reclassification
also results in a change in shares of Common Stock covered by Section
4.1 or 4.2, then such adjustment shall be made pursuant to Sections
4.1, 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4
shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
4.5. Notices of Changes in Warrant. Upon every adjustment
of the Warrant Price or the number of shares issuable upon exercise of
a Warrant, the Company shall
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give written notice thereof to the Warrant Agent, which notice shall
state the Warrant Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price
upon the exercise of a Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is
based. Upon the occurrence of any event specified in Sections 4.1, 4.2,
4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such
holder in the warrant register, of the record date or the effective
date of the event. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
4.6. 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.
4.7. 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.
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.
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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, at the price of $.01 per Warrant
("Redemption Price"), provided that the last sales price of the Common
Stock has been at least $8.50 per share, on each of twenty (20) trading
days within any thirty (30) trading day period ending on the third
business day prior to the date on which notice of redemption is given.
The provisions of this Section 6.1 may not be modified, amended or
deleted without the prior written consent of the Underwriters.
6.2. Date Fixed for, and Notice of, Redemption. In the
event the Company shall elect to redeem all of the Warrants, the
Company shall fix a date for the redemption (the "Redemption Date").
Notice of redemption shall be mailed by first class mail, postage
prepaid, by the Company not less than 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
registration books. Any notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not
the registered holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may
be exercised in accordance with Section 3 hereof at any time after
notice of redemption shall have been given by the Company pursuant to
Section 6.2 hereof and prior to the Redemption Date. 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. Redemption of Purchase Option. Notwithstanding
anything to the contrary contained herein or in the Purchase Option
relating to, among other things, the Underwriters' Warrants, if the
Company shall elect to redeem all of the Warrants, (i) the
Underwriters' Warrants, if not earlier exercised in full, shall be
automatically exercised, on a cashless basis as described in Section
2.4 of the Purchase Option, immediately prior to a redemption of the
Company's outstanding Warrants pursuant to Section 6.1 hereof, and (ii)
each Underwriters' Warrant upon such automatic conversion shall be
redeemed
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by the Company as part of such redemption for the Redemption Price;
provided, that the Company shall give FTN and any other holder of the
Purchase Option at least thirty (30) days' notice prior to effecting
any such redemption.
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 and during the Exercise Period, it shall
file with the Commission any post- effective amendment to the
Registration Statement, a new registration statement or any other
filings with the Commission necessary to maintain the effective
registration 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.
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, with the prior
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written consent of the Underwriters, which consent shall not
be unreasonably withheld, 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 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
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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 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 gross negligence or willful
misconduct, 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
gross negligence or willful misconduct.
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 non-assessable.
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 promptly pay to the
Company, all moneys received by the Warrant Agent for the purchase of
shares of Common Stock through the exercise of Warrants.
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.
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9.2. Notices. Any notice, statement or demand authorized
by this Agreement to be given or made by the Warrant Agent or by the
holder of any Warrant to or on the Company shall be sufficiently given
when so delivered if by hand or overnight delivery or if sent by
certified mail or private courier service within five (5) days after
deposit of such notice, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent), as
follows:
Navitas International Corporation
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Chairman
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five (5) days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
Navitas International Corporation
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Servjeet X. Xxxxxx, General Counsel
and
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
and
FTN Midwest Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Syndicate Department
and
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
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Attn: Xxxxx-Xxxx X. Xxxxx, Esq.
9.3. Applicable law. The validity, interpretation, and
performance of this Agreement and of the Warrants shall be governed in
all respects by the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State
of New York or the United States District Court for the Southern
District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts represent
an 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 6.1, 6.4, 7.4, 8.2, 9.2 and 9.8 hereof, the Underwriters,
any right, remedy, or claim under or by reason of this Agreement or of
any covenant, condition, stipulation, promise, or agreement hereof. FTN
shall be deemed to be a third-party beneficiary of this Agreement with
respect to Sections 6.1, 6.4, 7.4, 8.2, 9.2 and 9.8 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 Underwriters with respect to the Sections 6.1,
6.4, 7.4, 8.2, 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 by it.
9.6. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
9.7. Effect of Headings. The Section headings herein are
for convenience only and are not part of this Agreement and shall not
affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the
parties hereto without the consent of any registered holder for the
purpose of curing any ambiguity, or 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
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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 Underwriters and the
registered holders of a majority of the then outstanding Warrants.
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.
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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.
NAVITAS INTERNATIONAL CORPORATION
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
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