FORM OF WARRANT AGREEMENT
FORM
OF WARRANT AGREEMENT
This
Warrant Agreement (this “Agreement”) made as of _____, 2007, by and between Asia
Special Situation Acquisition Corp., a Cayman Islands corporation, with offices
at X.X. Xxx 000XX, Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand
Cayman,
Cayman Islands (“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 (i) 10,000,000 Warrants (the “Public Warrants”) to the public investors, each
of such Public Warrants evidencing the right of the holder thereof to purchase
one ordinary share, par value $.0001 per share, of the Company’s ordinary shares
(the “ Ordinary Shares”) for $7.50, subject to adjustment as described herein,
and (ii) 475,000 Warrants to Maxim Group LLC as representative of the
underwriters (the “Underwriters”) or its designees (the “Underwriter’s
Warrants”), with each of such Underwriter’s Warrants evidencing the right of the
holder thereof to purchase one Ordinary Share for $7.50, subject to adjustment
as described herein.
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a
Registration Statement, No. 333-145163 on Form S-1 (the “Registration
Statement”) for the registration under the Securities Act of 1933, as amended
(the “Act”) of, among other securities, the Public Warrants, the Underwriter’s
Warrants and the Ordinary Shares issuable upon exercise of each of the Public
Warrants and the Underwriter’s 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 Public
Warrants, the Underwriter’s Warrants and 5,725,000 warrants (the “Private
Warrants,” together with the Public Warrants and the Underwriter’s Warrants
shall be referred to collectively as the “Warrants”) issued in connection with a
Regulation S private placement prior to the consummation of the Public Offering;
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 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. The Public Warrants and
the
Underwriter’s Warrants shall be in substantially the form of Exhibit A hereto
and the Private Warrants shall be in substantially the form of Exhibit B
hereto,
the provisions of each of which are incorporated herein, and shall be signed
by,
or bear the facsimile signature of, the Chief Executive Officer or President
and
Chief Financial Officer, Treasurer, Secretary or Assistant Secretary of the
Company and shall bear a facsimile of the Company’s seal. If 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 (the “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 Public Warrants.
The
securities comprising the Units will begin to trade separately on the 10th
business day following the earlier to occur of: (i) expiration of the
Underwriters’ over-allotment option, or (ii) its exercise in full, provided that
in no event may the separate trading of the securities comprising the Units
occur until the Company files with the SEC 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 sale of the Private Warrants and 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 on
the date of the effective date of the Registration Statement (the "Balance
Sheet
8-K").
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3. Terms
and
Exercise of Warrants.
3.1 Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the Registered
Holder thereof, subject to the provisions of such Warrant and of this Agreement,
to purchase from the Company the number of Ordinary Shares stated therein,
at
the price of $7.50 per whole share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant
Price” as used in this Agreement refers to the price per share at which Ordinary
Shares 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 within Section 3 of the Warrant Agreement) for a period
of not
less than ten business days; provided that any such reduction shall be identical
among all of the Warrants.
3.2 Duration
of Warrants.
3.2.1
Public
Warrants and Underwriter’s Warrants.
A
Public Warrant or Underwriter’s Warrant may be exercised only during the period
commencing on the later of: (i) the consummation by the Company of a merger,
capital stock exchange, asset acquisition or other similar business combination
(as described more fully in the Registration Statement, “Business Combination”),
or (ii) [______], 2008 and terminating at 5:00 p.m., New York City time on
the
earlier to occur of (x) [______], 2011 or (y) the date fixed for redemption
of
the Warrants as provided in Section 6 of this Agreement. Notwithstanding
the
foregoing, no Public Warrant or Underwriter’s Warrant shall be exercisable
unless, at the time of exercise, a registration statement relating to the
Ordinary Shares issuable upon the exercise of such Public Warrant or
Underwriter’s Warrant is effective and current and a prospectus is available for
use by the holders thereof and the Ordinary Shares has been qualified or
deemed
to be exempt under the securities laws of the state of residence of the holder
of such Public Warrants or Underwriter’s Warrants
3.2.2
Private
Warrants.
A
Private Warrant may be exercised only during the period commencing on the
later
of: (i) the consummation by the Company of a Business Combination, or (ii)
[______], 2008 and terminating at 5:00 p.m., New York City time on the earlier
to occur of (x) [______], 2011 or (y) the date fixed for redemption of the
Warrants as provided in Section 6 of this Agreement. So long as the Private
Warrants are owned by Ho Capital Management LLC, Noble Investment Fund Ltd.
or
Xxxxxx Xx, the Private Warrants
may be
exercised on a cashless basis by such holder. The
Private Warrants are not subject to redemption so long as they are held by
their
initial purchasers or their permitted designees.
3.2.3 General.
The
period during which a Warrant may be exercised shall be deemed the “Exercise
Period” and the termination of such Exercise Period shall be deemed the
“Expiration Date”. Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder and defined therein), each Warrant
not exercised on or before the Expiration Date shall become void, and all
rights
thereunder and all rights in respect thereof under this Agreement shall cease
at
the close of business on the Expiration Date. The Company in its sole discretion
may extend the duration of the Warrants by delaying the Expiration Date;
provided, however, that the Company will provide notice to Registered Holders
of
such extension of not less than 20 days and, further provided that any such
extension shall be identical in duration among all of the Warrants.
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3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrants 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, 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 Ordinary Share 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 Ordinary Shares, and the issuance
of the Ordinary Shares .
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
Ordinary Shares 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 Ordinary Shares 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 or issuance would be unlawful. In no
event
will the Registered Holder of a Warrant be entitled to receive a net-cash
settlement in lieu of physical settlement in Ordinary Shares, regardless
of
whether the Ordinary Shares underlying the Warrants is registered pursuant
to an
effective registration statement.
3.3.3 Valid
Issuance.
All
Ordinary Shares 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 Ordinary Shares is issued shall
for all purposes be deemed to have become the holder of record of such shares
on
the date on which the Warrant was surrendered and payment of the Warrant
Price
was made, irrespective of the date of delivery of such certificate, except
that,
if the date of such surrender and payment is a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become
the
holder of such shares at the close of business on the next succeeding date
on
which the stock transfer books are open.
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3.3.5 Warrant
Solicitation and Warrant Solicitation Fee.
(a) The
Company has engaged Maxim Group LLC (“Maxim”), on a non-exclusive basis, as its
agent for the solicitation of the exercise of the Warrants. The Company,
at its
cost, will (i) assist Maxim with respect to such solicitation, if requested
by
Maxim, and (ii) provide Maxim, and direct the Company’s transfer agent and the
Warrant Agent to deliver to Maxim, lists of the record and, to the extent
known,
beneficial owners of the Company’s Warrants. The Company hereby instructs the
Warrant Agent to cooperate with Maxim in every respect in connection with
Maxim’s solicitation activities, including, but not limited to, providing to
Maxim, at the Company’s cost, a list of record and beneficial holders of the
Warrants and circulating a prospectus or offering circular disclosing the
compensation arrangements referenced in Section 3.3.5(b) below to holders
of the
Warrants at the time of exercise of the Warrants. In addition to the conditions
set forth in Section 3.3.5(b), Maxim shall accept payment of the warrant
solicitation fee provided in Section 3.3.5(b) only if it has provided bona
fide
services to the Company in connection with the exercise of the Warrants and
only
to the extent that an investor who exercises his Warrants specifically
designates, in writing, that Maxim solicited his, her or its exercise. In
addition to soliciting, either orally or in writing, the exercise of Warrants
by
a Registered Holder, such services may also include disseminating information,
either orally or in writing, to Warrant holders about the Company or the
market
for the Company’s securities, or assisting in the processing of the exercise of
Warrants.
(b) In
each
instance in which a Warrant is exercised, the Warrant Agent shall promptly
give
written notice of such exercise to the Company and Maxim (“Warrant Agent’s
Exercise Notice”). If, upon the exercise of any Warrant more than one year from
the effective date of the Registration Statement (i) the market price of
the
Company’s Ordinary Shares is greater than the Warrant Price; (ii) disclosure of
compensation arrangements between the Company and Maxim with respect to the
solicitation of the exercise of the Warrants was made both at the time of
the
Public Offering and at the time of exercise (by delivery of the Prospectus
or as
otherwise required by applicable law, rule or regulation); (iii) the holder
of
the Warrant confirms in writing that the exercise of the Warrant was solicited
by Maxim; (iv) the Warrant was not held in a discretionary account; and (v)
the
solicitation of the exercise of the Warrant was not in violation of Regulation
M
(as such rule or any successor rule may be in effect as of such time of
exercise) promulgated under the Securities Exchange Act of 1934, as amended,
then the Warrant Agent, simultaneously with the distribution of the Ordinary
Shares underlying the Warrants so exercised in accordance with the instructions
from the Company following receipt of the proceeds to the Company received
upon
exercise of such Warrant(s), shall, on behalf of the Company, pay a fee of
5% of
the Warrant Price to Maxim, provided that Maxim delivers to the Warrant Agent
within ten (10) business days from the date on which Maxim has received the
Warrant Agent’s Exercise Notice, a certificate that the conditions set forth in
the preceding clauses (iii), (iv) and (v) have been satisfied. Notwithstanding
the foregoing, no fee will be paid to Maxim with respect to the exercise
by the
Underwriters or their affiliates or the Company’s officers or directors of
Warrants purchased by it or them and still held by them for its or their
own
account. Maxim and the Company may, at any time during business hours, examine
the records of the Warrant Agent, including its ledger of original Warrant
certificates returned to the Warrant Agent upon exercise of
Warrants.
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(c) The
provisions of this Section 3.3.5 may not be modified, amended or deleted
without
the prior written consent of Maxim.
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 Ordinary Shares is increased by a stock dividend payable
in Ordinary Shares, or by a split up of Ordinary Shares, or other similar
event,
then, on the effective date of such stock dividend, split up or similar event,
the number of Ordinary Shares issuable on exercise of each Warrant shall
be
increased in proportion to such increase in outstanding Ordinary
Shares.
4.2 Aggregation
of Shares.
If,
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding Ordinary Shares is decreased by a consolidation,
combination, reverse stock split or reclassification of Ordinary Shares or
other
similar event, then, on the effective date of such consolidation, combination,
reverse stock split, reclassification or similar event, the number of Ordinary
Shares issuable on exercise of each Warrant shall be decreased in proportion
to
such decrease in outstanding Ordinary Shares.
4.3 Adjustments
in Exercise Price.
Whenever the number of Ordinary Shares 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 Ordinary Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (y) the denominator of
which
shall be the number of Ordinary Shares so purchasable immediately
thereafter.
4.4 Replacement
of Securities upon Reorganization, etc.
In case
of any (i) reclassification or reorganization of the outstanding Ordinary
Shares
(other than a change covered by Section 4.1 or 4.2 hereof or a change that
solely affects the par value of such Ordinary Shares); (ii) 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 Ordinary Shares); or (iii) sale or conveyance to another corporation
or entity of the assets or other property of the Company in its entirety
or
substantially in its entirety in connection with which the Company is dissolved,
the Registered Holder 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 Ordinary Shares 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 Registered Holder would have received if such Registered Holder
had
exercised his, her or its Warrant(s) immediately prior to such event; and
if any
reclassification also results in a change in Ordinary Shares covered by Section
4.1 or 4.2 above, 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 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 above, then, in any such event, the Company shall give
written notice to the Registered 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 Ordinary Shares to be issued
to
the Registered 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 provided that such change 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.
Upon
surrender of any outstanding Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions
for
transfer, the Warrant Agent shall register the transfer, from time to time,
upon
the Warrant Register. 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 if 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.
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 6.3 below, at the price of $.01 per Warrant (the “Redemption Price”),
provided that the last sales price of Ordinary Shares has been equal to or
greater than $14.25 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. Notwithstanding the foregoing,
the
Registration Statement must be current in order for the Company to exercise
its
redemption rights pursuant to this Section 6. The provisions of this Section
6.1
may not be modified, amended or deleted without the prior written consent
of
Maxim. The Private Warrants are not subject to this Section 6 provided they
are
held by the initial purchasers thereof, or any of their permitted
designees.
6.2 Date
Fixed for, and Notice of, Redemption.
If 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 Warrant Register. 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. Other
Provisions Relating to Rights of Registered Holders.
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 Ordinary Shares.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued Ordinary Shares that will be sufficient to permit the exercise
in
full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration
of Ordinary Shares.
The
Company agrees that prior to the commencement of the Exercise Period, it
shall
use its best efforts to prepare and file with the SEC a post-effective amendment
to the Registration Statement, or a new registration statement, for the
registration, under the Act, of, and it shall use its best efforts to take
such
action as is necessary to qualify for sale, in those states in which the
Warrants were initially offered by the Company, the Ordinary Shares 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 use its best efforts to maintain the effectiveness
of
such registration statement until the expiration of the Warrants in accordance
with the provisions of this Warrant Agreement; provided, however, the Company
shall not be obligated to deliver Ordinary Shares and shall not have penalties
for failure to deliver Ordinary Shares if a registration statement is not
effective at the time of exercise by the holder. In addition, the Company
agrees
to use its reasonable efforts to register such securities under the blue
sky
laws of the states of residence of the exercising warrant holders to the
extent
an exemption is not available. The provisions of this Section 7.4 may not
be
modified, amended or deleted without the prior written consent of Maxim.
Notwithstanding the foregoing, a Warrant can expire unexercised regardless
of
whether a registration statement is current under the Act with respect to
the
Ordinary Shares issuable upon exercise of the Warrants. In no event will
the
registered holder of a warrant be entitled to receive a net-cash settlement
or
Ordinary Shares or other consideration as of result of the Company's
non-compliance with this Section 7.4.
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 Ordinary Shares 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.
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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, 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, 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.
If a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the Ordinary
Shares 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 as set forth on Exhibit A hereto, and will
reimburse the Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties
hereunder.
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.
10
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 Chief Operating Officer
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 (i) be responsible for any breach
by
the Company of any covenant or condition contained in this Agreement or in
any
Warrant; (ii) 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 (iii) by any act hereunder be deemed to
make
any representation or warranty as to the authorization or reservation of
any
Ordinary Shares to be issued pursuant to this Agreement or any Warrant or
as to
whether any Ordinary Shares will, when issued, be valid, 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 set forth herein. The Warrant
Agent shall, among other things, account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company,
all
monies received by the Warrant Agent for the purchase of shares of the Company’s
Ordinary Shares 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 each of their
respective successors and assigns.
9.2 Notices.
Any
notice or other communication required, or which may be given hereunder,
shall
be in writing and either be delivered (i) personally, (ii) by private national
courier service, or (iii) be mailed, certified or registered mail, return
receipt requested, postage prepaid. Notice shall be deemed given when so
delivered personally or, if sent by private national courier service, on
the
next business day after delivery to the courier, or, if mailed, two business
days after the date of mailing, as follows:
11
X.X.
Xxx
000 XX, Xxxxxx House
South
Church Street
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Attn:
President
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the Registered Holder 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:
______________
with
a
copy in each case to:
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxx, Esq.
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
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.
12
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 and, for the purposes of Sections 3.3.5, 6.1, 7.4, 9.2 and 9.8
hereof, Maxim, any right, remedy, or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise, or agreement hereof.
Maxim
shall be deemed to be a third-party beneficiary of this Agreement with respect
to Sections 3.3.5, 6.1, 7.4, 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 Maxim with respect
to
the Sections 3.3.5, 6.1, 7.4, 9.2 and 9.8 hereof) and their successors and
assigns and of the Registered Holders.
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 any Registered Holder. 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
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 Maxim 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 above, respectively, without such consent.
9.9 Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in
lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
[remainder
of document continued on next page]
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IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
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