WARRANT AGREEMENT
EXHIBIT
4.5
This
Warrant Agreement (this “Agreement”) made as of _________ ___, 2005, by and
between Everest Acquisition Corporation, a Delaware corporation, with offices
at
15/F, The Hong Xxxx Xxxx Xxxxxxxx, 0X Xxxxxx Xxxx Xxxxxxx, Xxxx Xxxx
(“Company”), and Continental Stock Transfer & Trust Company, a New York
corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000
(“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 36,800,000 warrants (“Public Warrants”) to the public investors, each of such
Public Warrants evidencing the right of the holder thereof to purchase one
share
of common stock, par value $.0001 per share, of the Company’s Common Stock
(“Common Stock”) for $5.00, subject to adjustment as described herein;
WHEREAS,
Jesup & Xxxxxx Securities Corporation (“Jesup & Xxxxxx”), which is
acting as the representative of the underwriters in the IPO, has agreed that
during the 45-day trading period beginning after separate trading of the
Public
Warrants commences, it will purchase, in the aggregate, 1,250,000 Public
Warrants at prices not to exceed $0.70 per warrant; and
WHEREAS,
the Company has determined to issue and deliver up to 800,000 warrants
(“Underwriters’ Warrants”) to Jesup & Xxxxxx or its designees, each of such
Underwriters’ Warrants evidencing the right of the holder thereof to purchase
one share of Common Stock for $6.25, subject to adjustment as described herein
(the Underwriters’ Warrants together with the Public Warrants, being referred to
herein as the “Warrants”),
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-______ on Form S-1 (“Registration Statement”) for the
registration under the Securities Act of 1933, as amended (“Act”) of, among
other securities, 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
Public Warrant and Underwriters’ Warrants shall be issued in registered form
only, shall be in substantially the forms of Exhibit A and Exhibit B hereto,
respectively, 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 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 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 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 not be separately transferable until
90
trading days following the effective date of the Registration Statement is
filed
unless Jesup & Xxxxxx informs the Company of its decision to allow earlier
separate trading, but in no event will Jesup & Xxxxxx allow separate trading
of the securities comprising the Units until the Company files a Current
Report
on Form 8-K, which includes an audited balance sheet reflecting the receipt
by
the Company of the 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-
2.5 Public
Warrants and Underwriters’ Warrants.
Except
for the exercise price, the Underwriters’ Warrants shall have the same terms and
be in the same form as the Public Warrants.
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 Warrant 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 Warrant 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 Warrant 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 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 the consummation by the Company of a merger, capital stock
exchange, asset acquisition or other similar business combination (“Business
Combination”) (as described more fully in the Company’s Registration Statement)
or _________ ___, 2006, and terminating at 5:00 p.m., New York City time
on the
earlier to occur of (i) ________ ___, 2009 or (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 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 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, in lawful money of the United States, in
cash,
good certified check or good bank draft payable to the order of the Company,
the
Warrant Price for each full share of Common Stock as to which the Warrant
is
exercised and any and all applicable taxes due in connection with the exercise
of the Warrant, the exchange of the Warrant for the Common Stock, and the
issuance of the Common Stock.
-3-
3.3.2 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 is entitled, registered in such name or
names
as may be directed by him, 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 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
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, 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 issuable on exercise of each Warrant
shall
be increased in proportion to such increase in outstanding shares.
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 issuable on exercise of each Warrant shall be decreased in proportion
to such decrease in outstanding shares.
-4-
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, by a Warrant holder of the number of shares of Common
Stock of the Company obtainable upon exercise of the Warrants 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 on
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from
such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the warrant register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant 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.
-5-
4.7 Form
of Warrant.
The
forms of Public Warrant and Underwriters’ 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 Notice
of Certain Transactions.
In the
event that the Company shall propose to (a) offer the holders of its Common
Stock rights to subscribe for or to purchase any securities convertible into
shares of Common Stock or shares of stock of any class or any other securities,
rights or options, (b) issue any rights, options or warrants entitling the
holders of Common Stock to subscribe for shares of Common Stock or (c) make
a
tender offer or exchange offer with respect to the Common Stock, the Company
shall send to the Warrant holders a notice of such proposed action or offer.
Such notice shall be mailed to the registered holders at their addresses
as they
appear in the Warrant Register, which shall specify the record date for the
purposes of such dividend, distribution or rights, or the date such issuance
or
event is to take place and the date of participation therein by the holders
of
Common Stock, if any such date is to be fixed, and shall briefly indicate
the
effect of such action on the Common Stock and on the number and kind of any
other shares of stock and on other property, if any, and the number of shares
of
Common Stock and other property, if any, issuable upon exercise of each Warrant
and the Warrant Price after giving effect to any adjustment pursuant to this
Article 4 which would be required as a result of such action. Such notice
shall
be given as promptly as practicable after the Board of Directors of the Company
(the “Board”) has determined to take any such action and (x) in the case of any
action covered by clause (a) or (b) above at least 10 days prior to the record
date for determining the holders of the Common Stock for purposes of such
action
or (y) in the case of any other such action at least 20 days prior to the
date
of the taking of such proposed action or the date of participation therein
by
the holders of Common Stock, whichever shall be the earlier.
4.9 Other
Events.
If any
event occurs as to which the foregoing provisions of this Article 4 are not
strictly applicable or, if strictly applicable, would not, in the good faith
judgment of the Board, fairly and adequately protect the purchase rights
of the
registered holders of the Warrants in accordance with the essential intent
and
principles of such provisions, then the Board shall make such adjustments
in the
application of such provisions, in accordance with such essential intent
and
principles, as shall be reasonably necessary, in the good faith opinion of
the
Board, to protect such purchase rights as aforesaid.
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.
-6-
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 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 equal to or greater than $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 Jesup & Xxxxxx.
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. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to
the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the 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 of this 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.
-7-
6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by 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 redemption.
However, once such purchase rights are exercised, the Company may redeem
the
Warrants issued upon such exercise provided that the criteria for redemption
is
met, including the opportunity of the Warrant holder to exercise prior to
redemption pursuant to Section 6.3. The provisions of this Section 6.4 may
not
be modified, amended or deleted without the prior written consent of Jesup
&
Xxxxxx.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote
or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and
date as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or
not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3 Reservation
of Common Stock.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7.4 Registration
of Common Stock.
The
Company agrees that prior to the commencement of the Exercise Period, it
shall
file with the Securities and Exchange Commission a post-effective amendment
to
the Registration Statement, or a new registration statement, for the
registration, under the Act, of, and it shall take such action as is necessary
to qualify for sale, in those states in which the Warrants were initially
offered by the Company, the Common Stock issuable upon exercise of the 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
to
maintain the effectiveness of such registration statement until the expiration
of the Public Warrants and Underwriters’ Warrants in accordance with the
provisions of this Agreement. The provisions of this Section 7.4 may not
be
modified, amended or deleted without the prior written consent of Jesup &
Xxxxxx.
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-
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 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. 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.
-9-
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 President or Chairman of the Board
of
the Company and delivered to the Warrant Agent. The Warrant Agent may rely
upon
such statement for any action taken or suffered in good faith by it pursuant
to
the provisions of this Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach
by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or responsible for the manner, method, or
amount
of any such adjustment or the ascertaining of the existence of facts that
would
require any such adjustment; nor shall it by any act hereunder be deemed
to make
any representation or warranty as to the authorization or reservation of
any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Agreement and
agrees
to perform the same upon the terms and conditions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of the Company’s Common
Stock through the exercise of Warrants.
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.
-10-
9.2 Notices.
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service five days after deposit
of such notice, postage prepaid, addressed (until another address is filed
in
writing by the Company with the Warrant Agent), as follows:
Everest
Acquisition Corporation
15/F,
The
Hong Kong Club Xxxxxxxx
0X
Xxxxxx
Xxxx Xxxxxxx
Xxxx
Xxxx
Attn: Xxxxx
X.
Xxxxxxx, Chief Executive Officer
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 five days after deposit of such
notice, postage prepaid, addressed (until another address is filed in writing
by
the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
with
a
copy in each case to:
Xxxxxxxxx
Traurig LLP
MetLife
Building
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxx
X.
Annex, Esq.
and
Xxxxxx
Xxxx & Priest LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
X.
Xxxxxx, Esq.
and
Jesup
& Xxxxxx Securities Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxxx
-11-
9.3 Applicable
law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New
York
or the United States District Court for the Southern District of New York,
and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenience forum. Any such process or summons
to be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.2 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the
Company
in any action, proceeding or claim.
9.4 Persons
Having Rights under this Agreement.
Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or
give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 2.5, 6.1, 6.4,
7.4,
9.2 and 9.8 hereof, Jesup & Xxxxxx, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. Jesup & Xxxxxx shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 2.5, 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 Jesup & Xxxxxx with respect to
the Sections 2.5, 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 Warrant Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent in the Borough of Manhattan, City and State of New York,
for
inspection by 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 counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all
such
counterparts shall together constitute but one and the same
instrument.
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
9.8 Amendments.
This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or 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 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 Jesup & Xxxxxx 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.
-12-
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.
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
|
Attest:
______
|
EVEREST
ACQUISITION CORPORATION
By:___________________________________
Xxxxx
X. Xxxxxxx, Chief Executive Officer
|
|
Attest:
______
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
By:____________________________________
Xxxxxx
X. Xxxxxx, Chairman of the Board
|
-13-
