WARRANT AGREEMENT
EXHIBIT
4.4
Agreement
made as of ___________ , 2005 between Industrial Services Acquisition
Corp., a Delaware corporation, with offices at 0000 Xx Xxxxxxxx, Xxxxxx,
Xxxxxxxxxx 00000 (“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 ___________ Warrants (“Public Warrants”) to the investors in the Public
Offering, 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 $6.00, subject to adjustment as
described herein, and (ii) _________ Warrants to Wedbush Xxxxxx Securities
Inc.
(“Wedbush”) or its designees (“Representative's Warrants” and, together with the
Public Warrants, the “Warrants”), each such Representative’s Warrant evidencing
the right of the holder thereof to purchase one share of Common Stock for
$____,
subject to adjustments as described herein; and
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement, No. _________ on Form S-1 (as the same may be amended from time
to
time) (“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
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 President 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. All of the Warrants shall
initially be represented by one or more book-entry certificates (each a
“Book-Entry Warrant Certificate”).
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.
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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. All of the Warrants shall initially be represented by one or
more
Book-Entry Warrant Certificate deposited with the Depository Trust Company
(the
“Depository”) and registered in the name of Cede & Co., a nominee of the
Depository. Ownership of beneficial interests in the Warrants shall be shown
on,
and the transfer of such ownership shall be effected through, records maintained
by (i) the Depository or its nominee for each Book-Entry Warrant Certificate,
or
(ii) institutions that have accounts with the Depository (such institution,
with
respect to a Warrant in its account, a “Participant”).
If
the
Depository subsequently ceases to make its book-entry settlement system
available for the Warrants, the Company may instruct the Warrant Agent regarding
making other arrangements for book-entry settlement. In the event that the
Warrants are not eligible for, or it is no longer necessary to have the Warrants
available in, book-entry form, the Warrant Agent shall provide written
instructions to the Depository to deliver to the Warrant Agent for cancellation
of each Book-Entry Warrant Certificate, and the Company shall instruct the
Warrant Agent to deliver to the Depository definitive Warrant Certificates
in
physical form evidencing such Warrants. Such definitive Warrant Certificates
shall be in the form annexed hereto as Exhibit
A
with
appropriate insertions, modifications and omissions, as provided
above.
2.3.2 Beneficial
Owner; Registered Holder.
The
term “beneficial owner” shall mean, on or after the Detachment Date, any person
in whose name ownership of a beneficial interest in the Warrants evidenced
by a
Book-Entry Certificate is recorded in the records maintained by the Depository
or its nominee, and prior to the Detachment Date, the person in whose name
the
Unit to which Warrant Certificate was initially attached as registered upon
the
register relating to such Units. 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 within the
first
20 trading days following the earlier of the exercise in full or expiration
of
the underwriters’ over-allotment option (as described in the Company's
Prospectus dated ____________, 2005) (the “Detachment Date”), but in no event
will separate trading of the securities comprising the Units be allowed 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 net proceeds of the Public
Offering including the proceeds received by the Company from the exercise
of the
underwriter’s over-allotment option, if any.
2.5 Warrants
and Representative's Warrants.
The
Representative's Warrants shall have the same terms and be in the same form
as
the Public Warrants except with respect to the Warrant Price as set forth
below
in Section 3.1.
3. Terms
and Exercise of Warrants.
3.1 Warrant
Price.
Each
Public Warrant shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such Public Warrant
and
of this Warrant Agreement, to purchase from the Company the number of shares
of
Common Stock stated therein, at the price of $6.00 per whole share, subject
to
the adjustments provided in Section 4 hereof and in the last sentence
of
this Section 3.1. Each Representative’s Warrant shall, when countersigned
by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Representative's Warrant and of this Warrant Agreement,
to
purchase from the Company the number of shares of Common Stock stated therein,
at the price of $6.00 per whole share, subject to the adjustments provided
in
Section 4 hereof and in the last sentence of this Section 3.1. 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.
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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) ___________, 2010 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.
3.3 Exercise
of Warrants.
A
registered holder may exercise a Warrant by delivering not later than 5:00
P.M.,
New York time, on any Business Day (defined as any day that is not a Saturday
or
Sunday and is not a United States federal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to
close
in New York) during the Exercise Period (the “Exercise Date”) to the Warrant
Agent at its corporate trust department (i) the Warrant Certificate evidencing
the Warrants to be exercised, or, in the case of a Book-Entry Warrant
Certificate, the Warrants to be exercised (the “Book-Entry Warrants”) free on
the records of the Depository to an account of the Warrant Agent at the
Depository designated for such purpose in writing by the Warrant Agent to
the
Depository from time to time, (ii) an election to purchase the shares underlying
the Warrants to be exercised (“Election to Purchase”), properly completed and
executed by the registered holder on the reverse of the Warrant Certificate
or,
in the case of a Book-Entry Warrant Certificate, properly delivered by the
Participant in accordance with the Depository’s procedures, and (iii) the
Exercise Price for each Warrant to be exercised in lawful money of the United
States of America by certified or official bank check or by bank wire transfer
in immediately available funds. If any of (A) the Warrant Certificate or
the
Book-Entry Warrants, (B) the Election to Purchase, or (C) the Exercise Price
therefor, is received by the Warrant Agent after 5:00 P.M., New York time,
on
the specified Exercise Date, the Warrants will be deemed to be received and
exercised on the Business Day next succeeding the Exercise Date. If the date
specified as the Exercise Date is not a Business Day, the Warrants will be
deemed to be received and exercised on the next succeeding day that is a
Business Day. If the Warrants are received or deemed to be received after
the
Expiration Date, the exercise thereof will be null and void and any funds
delivered to the Warrant Agent will be returned to the holder or Participant,
as
the case may be, as soon as practicable. In no event will interest accrue
on
funds deposited with the Warrant Agent in respect of an exercise or attempted
exercise of Warrants. The validity of any exercise of Warrants will be
determined by the Company in its sole discretion and such determination will
be
final and binding upon the holder and the Warrant Agent. Neither the Company
nor
the Warrant Agent shall have any obligation to inform a holder of the invalidity
of any exercise of Warrants.
The
Warrant Agent shall deposit all funds received by it in payment of the Exercise
Price in the account of the Company maintained with the Warrant Agent for
such
purpose and shall advise the Company at the end of each day on which the
funds
for the exercise of the Warrants are received of the amount so deposited
to its
account. The Warrant Agent shall promptly confirm such telephonic advice
to the
Company in writing.
(a) The
Warrant Agent shall, by 11:00 A.M., New York time, on the Business Day following
the Exercise Date of any Warrant, advise the Company and the transfer agent
in
respect of (a) the shares of Common Stock (the “Shares”) issuable upon such
exercise as to the number of Warrants exercised in accordance with the terms
and
conditions of this Agreement, (b) the instructions of each registered holder
or
Participant, as the case may be, with respect to delivery of the Shares issuable
upon such exercise, and the delivery of definitive Warrant Certificates,
as
appropriate, evidencing the balance, if any, of the Warrants remaining after
such exercise, (c) in case of a Book-Entry Warrant Certificate, the notation
that shall be made to the records maintained by the Depository, its nominee
for
each Book-Entry Warrant Certificate, or a Participant, as appropriate,
evidencing the balance, if any, of the Warrants remaining after such exercise
and (d) such other information as the Company or such transfer agent and
registrar shall reasonably require.
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(b) The
Company shall, by 5:00 P.M., New York time, on the third Business Day next
succeeding the Exercise Date of any Warrant and the clearance of the funds
in
payment of the Warrant Price, execute, issue and deliver to the Warrant Agent,
the Shares to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder or the
Participant, as the case may be. Upon receipt of such Shares, the Warrant
Agent
shall, by 5:00 P.M., New York time, on the fifth Business Day next succeeding
such Exercise Date, transmit such Shares, to or upon the order of the holder
or
Participant, as the case may be.
In
lieu
of delivering physical certificates representing the Shares issuable upon
exercise, provided the Company’s transfer agent is participating in the
Depository Fast Automated Securities Transfer program, the Company shall
use its
reasonable best efforts to cause its transfer agent to electronically transmit
the Shares issuable upon exercise to the registered holder or Participant
by
crediting the account of the registered holder’s prime broker with Depository or
of the Participant through its Deposit Withdrawal Agent Commission system.
The
time periods for delivery described in the immediately preceding paragraph
shall
apply to the electronic transmittals described herein. Notwithstanding the
foregoing, the Company shall not be obligated to deliver any securities pursuant
to the exercise of a Warrant unless a registration statement under the Act
with
respect to the Common Stock is effective. Warrants may not be exercised by,
or
securities issued to, any registered holder in any state in which such exercise
would be unlawful.
(c) The
accrual of dividends, if any, on the Shares issued upon the valid exercise
of
any Warrant will be governed by the terms generally applicable to the Shares.
From and after the issuance of such Shares, the former holder of the Warrants
exercised will be entitled to the benefits generally available to other holders
of Shares and such former holder’s right to receive payment of dividends and any
other amounts payable in respect of the Shares shall be governed by, and
shall
be subject to, the terms and provisions generally applicable to such
Shares.
(d) Warrants
may be exercised only in whole numbers of Warrants. No fractional shares
of
Common Stock are to be issued upon the exercise of this Warrant, but rather
the
number of shares of Common Stock to be issued shall be rounded up to the
nearest
whole number. If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of Warrants
remaining unexercised shall be executed by the Company and countersigned
by the
Warrant Agent as provided in Section 2 hereof, and delivered to the holder
of
this Warrant Certificate at the address specified on the books of the Warrant
Agent or as otherwise specified by such registered holder. If fewer than
all the
Warrants evidenced by a Book-Entry Warrant Certificate are exercised, a notation
shall be made to the records maintained by the Depository, its nominee for
each
Book-Entry Warrant Certificate, or a Participant, as appropriate, evidencing
the
balance of the Warrants remaining after such exercise.
(e) The
Company shall not be required to pay any stamp or other tax or governmental
charge required to be paid in connection with any transfer involved in the
issue
of the Shares upon the exercise of Warrants; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver
any
Shares until such tax or other charge shall have been paid or it has been
established to the Company’s satisfaction that no such tax or other charge is
due.
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4. Adjustments.
4.1 Stock
Dividends - Split-Ups.
If
after the date hereof, and subject to the provisions of Section 4.6
below,
the number of outstanding shares of Common Stock is increased by a stock
dividend payable in shares of Common Stock, or by a split-up of shares of
Common
Stock, or other similar event, then, on the effective date of such stock
dividend, split-up or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be increased in proportion to
such
increase in outstanding shares of Common Stock.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6,
the
number of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common
Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the
number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3 Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in 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.
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4.5 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from
such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to 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.
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 Transfer
of Warrants.
Prior
to the Detachment Date, 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, prior to the Detachment Date, each transfer of a 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
shall be of no further force and effect.
5.2 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.
5.3 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 except as otherwise provided herein or
in any
Book-Entry Warrant Certificate, each Book-Entry Warrant Certificate may be
transferred only in whole and only to the Depository, to another nominee
of the
Depository, to a successor depository or to a nominee of a successor depository;
provided further, 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. Upon any such registration of transfer, the Company shall execute,
and
the Warrant Agent shall countersign and deliver, in the name of the designated
transferee a new Warrant Certificate or Warrant Certificates of any authorized
denomination evidencing in the aggregate a like number of unexercised
Warrants.
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5.4 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.
5.5 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer
of
Warrants.
5.6 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 $11.50 per share, on each of 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. The provisions of this
Section 6.1 may not be modified, amended or deleted without the prior
written consent of Wedbush.
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.
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. The provisions of this Section 6.4 may not be modified,
amended or deleted without the prior written consent of Wedbush.
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.
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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 and to maintain the effectiveness of such registration
statement until the expiration of the 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 Wedbush.
8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance
or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its
duties
and be discharged from all further duties and liabilities hereunder after
giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within
a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the
holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws
of
the State of New York, in good standing and having its principal office in
the
Borough of Manhattan, City and State of New York, and authorized under such
laws
to exercise corporate trust powers and subject to supervision or examination
by
federal or state authority. After appointment, any successor Warrant Agent
shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if
for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8
8.2.2 Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Common Stock not later than the effective date of any such
appointment.
8.2.3 Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon
demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to
be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability
of Warrant Agent.
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.
8.6 Waiver.
The
Warrant Agent hereby waives any and all right, title, interest or claim of
any
kind (“Claim”) in or to any distribution of the Trust Fund (as defined in that
certain Investment Management Trust Agreement, dated as of the date hereof,
by
and between the Company and the Warrant Agent), and hereby agrees not to
seek
recourse, reimbursement, payment or satisfaction for any Claim against the
Trust
Fund for any reason whatsoever.
9
9. Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
9.2 Notices.
Any
notice, 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 within 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:
0000
Xx
Xxxxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attn:
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 within 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:
Xxxxxx
Godward LLP
Xxx
Xxxxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
and
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
and
Wedbush
Xxxxxx Securities Inc.
0000
Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxxx XxXxxxxxx
10
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 6.1, 6.4,
7.4 and
9.2 hereof, Wedbush, any right, remedy, or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. Wedbush 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 9.4 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 Wedbush with respect to the Sections 6.1, 6.4, 7.4, 9.2 and 9.4
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.
[Remainder
of this page intentionally left blank]
11
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
| Attest | INDUSTRIAL SERVICES ACQUISITION CORP. | ||
|
By:
|
|||
|
|
Name: Xxxx XxXxxxxx |
||
| Title: Chief Executive Officer |
| Attest | CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
|
||
|
By:
|
|||
|
|
Name: Xxxxxx Xxxxxx |
||
|
Title: Chairman
|
12
Exhibit
A
Form
of Warrant Certificate
13
