WARRANT AGREEMENT
Exhibit
4.4
This
WARRANT
AGREEMENT
(this
“Agreement”)
is
made as of _________, 2008, by and between Indas Green Acquisition Corporation,
a company formed under the laws of the Cayman Islands having its principal
place
of business at Xxxxx 00-00, Xxx Xxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxx 000000
(“Company”)
and
Continental Stock Transfer & Trust Company, a New York corporation with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000 (the “Warrant
Agent”).
WHEREAS,
the
Company is engaged in a public offering (the “Public
Offering”)
of
Units (“Units”)
and,
in connection therewith, has determined to issue and deliver up to (i)
6,037,500 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 (“Ordinary
Shares”)
for
$5.00, subject to adjustment as described herein, and (ii) 262,500 Warrants
included as part of a unit purchase option issued to the underwriters (the
“Underwriters”)
with
Chardan Capital Markets, LLC, as the representative of the Underwriters
(“Chardan”)
or
their designees (the “Underwriters’
Warrants”),
with
each of such Underwriters’ Warrants evidencing the right of the holder thereof
to purchase one Ordinary Share for $5.00, subject to adjustment as described
herein;
WHEREAS,
immediately prior to the completion of the Public Offering, the Company shall
sell and issue 1,970,000 Warrants
in a private placement (the “Private
Warrants”)
pursuant to certain subscription agreements dated June ___, 2008 (the
“Subscription
Agreements”),
each
of such Private Warrants evidencing the right of the holder thereof (the
“Initial
Purchasers”)
to
purchase one Ordinary Share for $5.00 (the Public Warrants, the Underwriters’
Warrants and the Private Warrants are collectively referred to herein as the
“Warrants”);
WHEREAS,
the
Company has filed with the Securities and Exchange Commission (the “SEC”)
a
Registration Statement,
No. 333-[ ]
on Form F-1 (“Registration
Statement”)
for
the registration under the Securities Act of 1933, as amended (“Act”)
of,
among other securities, the Public Warrants, the Underwriters’ Warrants and the
Ordinary Shares issuable upon exercise of each of the Public Warrants and the
Underwriters’ Warrants;
WHEREAS,
the
Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS,
the
Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent and
the
holders of the Warrants; and
WHEREAS,
all
acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the 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. The Public Warrants and the
Underwriters’ 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. 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 Public Warrants.
The
securities comprising the Units will begin to trade separately on
the
10th
day
following the earlier to occur of: (i) the expiration of the underwriters’
overallotment option, as described in the Registration Statement, or (ii) its
exercise in full (the
“Detachment Date”), provided that in no event will the separate trading of the
securities comprising the Units until (i) the Company files with the SEC a
Current Report on Form 6-K or similar form, 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 Underwriters' over-allotment option, if
the
over-allotment option is exercised prior to the filing of the Form 6-K, and
(ii)
the Company issues a press release and files with the SEC a Current Report
on
Form 6-K or similar form announcing when such separate trading will begin.
Following
the date that the Ordinary Shares and Warrants are eligible to trade separately,
the Units will continue to be listed for trading, and any holder of Units may
elect to break apart a Unit and trade the Ordinary Shares or Warrants
separately or as a Unit. Unitholders will have the ability to trade Ordinary
Shares or Warrants as Units until such time as the Warrants expire or are
redeemed.
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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 this Warrant
Agreement, to purchase from the Company the number of Ordinary Shares stated
therein, at the price of $7.00 per whole share, subject to the adjustments
provided in this Section 3.1 and Section 4 hereof. The term “Warrant Price” as
used in this Warrant Agreement refers to the price per Ordinary Share which
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
for a period of not less than twenty 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 Underwriters’ 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 business
combination (as described more fully in the Registration Statement,
“Business
Combination”),
or
(ii)
[ ],
2009 and terminating at 5:00 p.m., New York City time on the earlier to occur
of
(x) [ ], 2012 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 have been qualified or deemed to be exempt under the securities
laws of the state of residence of the holder of such Public Warrants or
Underwriters’ Warrants.
3.2.2 Private
Warrants.
A
Private Warrant may be exercised only during the period commencing on the later
of: (i) the consummation of an initial Business Combination by the Company
or
(ii) [ ], 2009, and terminating at 5:00 p.m., New York City time on the earlier
to occur of (x)
[ ],
2012 or (y) (if not held by the initial purchasers or their permitted assignees
or designees) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement. The Private Warrants are not subject to redemption
so long as they are held by their initial purchasers or their permitted
designees or assignees.
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), 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, the Company
will provide notice to registered holders of the Warrants 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. In the event that the Company
desires to extend the Expiration Date of the Warrants, the Company shall provide
advance notice to the American Stock Exchange as required by the American Stock
Exchange.
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3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrants 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 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 Share and the issuance
of
such Ordinary Shares.
3.3.2 Cashless
Exercise of Private Warrant.
Notwithstanding anything contained herein to the contrary, the Private Warrants
may, at any time, provided that at the time of exercise they are held by the
original purchaser thereof or any of their permitted assigns, be exercised
by
means of a “net exercise” by which the holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained
by
dividing [(A-B) (X)] by (A), where: (A) = the average reported last sale price
of the Company’s Common Stock for the 10 trading days ending on the third
business day prior to the date on which notice of exercise is received by the
Company; (B) = the Exercise Price of this Warrant, as adjusted; and (X) = the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
3.3.3 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 Company be required to provide the registered holder of a warrant
with
a net-cash settlement or other consideration 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.
Accordingly, the Warrants may expire unexercised and worthless if a current
registration statement covering the Ordinary Shares is not
effective.
3.3.4 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
nonassessable.
3.3.5 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 share 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 share transfer books are open.
4. Adjustments.
4.1 Share
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 share dividend payable
in Ordinary Shares, or by a split up of Ordinary Shares, or other similar event,
then, on the effective date of such share 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.
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4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding Ordinary Shares is decreased by a consolidation, combination,
reverse share split or reclassification of Ordinary Shares or other similar
event, then, on the effective date of such consolidation, combination, reverse
share 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 reclassification or reorganization of the outstanding Ordinary Shares
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such Ordinary Shares), 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 Ordinary Shares), 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 Ordinary Shares of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of Ordinary Shares 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 Ordinary
Shares 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 Ordinary Shares to be
issued to the Warrant holder.
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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, the Public Warrants may be transferred or exchanged
only
together with the Unit in which such Warrant is included, and only for the
purpose of effecting, or in conjunction with, a transfer or exchange of such
Unit. Furthermore, each transfer of a Unit on the register relating to such
Units shall operate also to transfer the Warrants included in such Unit. From
and after the Detachment Date this Section 5.1 will have no further force and
effect.
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, in the event 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 such transfer may be made and
indicating whether the new Warrants must also bear a restrictive
legend.
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 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.
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5.7 Private
Warrants.
Notwithstanding anything herein to the contrary, the Warrant Agent shall not
register for transfer any Private Warrants until after the consummation of
a
Business Combination, except for: (i) by gift to a member of Initial Purchaser’s
immediate family or to a trust or other entity, the beneficiary of which is
an
Initial Purchaser or a member of an Initial Purchaser’s immediate family, (ii)
by virtue of the laws of descent and distribution upon death of any Initial
Purchaser, (iii) pursuant to a qualified domestic relations order, (iv) to
an
Initial Purchaser, (v) to any person or entity controlling, controlled by,
or
under common control with, an Initial Purchaser or (vi) with respect to an
Initial Purchaser who is an individual, to an entity controlled by such Initial
Purchaser, on condition that prior to such registration for transfer, the
Warrant Agent shall be presented with written documentation pursuant to which
each permitted transferee or the trustee or legal guardian for each permitted
transferee agrees to be bound by the terms of the Subscription
Agreement.
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, at the price of $.01 per Warrant (“Redemption Price”), provided
that the last sales price of the Ordinary Shares has been equal to or greater
than $10.00 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
Chardan. Notwithstanding the foregoing, the Private Warrants are not subject
to
this Section 6.1 provided they are held by the initial purchasers thereof,
or
their permitted assignees or designees.
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 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 Warrant Agreement
at any time after notice of redemption shall have been given by the Company
pursuant to Section 6.2 hereof and prior to the time and date fixed for
redemption. On and after the redemption date, the record holder of the Warrants
shall have no further rights except to receive, upon surrender of the Warrants,
the Redemption Price.
6.4 Outstanding
Warrants Only.
The
Company understands 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 are 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 Chardan.
6.5 Exclusion
of Private Warrants.
The
Company understands that the redemption rights provided for by this Section
6 do
not apply to the Private Warrants if at the time of redemption such warrants
continue to be held by the Initial Purchaser or its permitted assigns. However,
once such Private Warrants are transferred other than to any permitted assign,
the Company may redeem the Private Warrants, provided that the criteria for
redemption are met, including the opportunity of the Warrant holder to exercise
prior to redemption pursuant to Section 6.3.
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7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Shareholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
shareholder 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 shareholders in respect of the meetings of
shareholders 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 Ordinary Shares.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued Ordinary Shares sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Warrant Agreement.
7.4 Registration
of Ordinary Shares.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
use its reasonable best efforts to file with the SEC a post-effective amendment
to the Registration Statement, or a new registration statement, for the
registration, under the Act, of the Ordinary Shares issuable upon exercise
of
the Warrants, and it shall take such reasonable 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 Chardan. 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
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
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 Warrant 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 C
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 Warrant
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer
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 Warrant
Agreement.
9
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
hold it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Warrant Agreement except as a result of the Warrant
Agent’s negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Warrant Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Warrant
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 Ordinary Shares to be issued pursuant to this Warrant
Agreement or any Warrant or as to whether any Ordinary Shares will when issued
be valid and fully paid and nonassessable.
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Warrant Agreement
and agrees to perform the same upon the terms and conditions herein set forth
and among other things, shall account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase the Company’s Ordinary
Shares 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 Account (as defined in that certain Investment
Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Warrant Agent as trustee thereunder), and hereby agrees not
to
seek recourse, reimbursement, payment or satisfaction for any Claim against
the
Trust Account for any reason whatsoever.
9. Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Warrant Agreement by or for the benefit of
the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
9.2 Notices.
Any
notice or other communication required or which may be given hereunder shall
be
in writing and either be delivered personally or by private national courier
service, or be mailed, certified or registered mail, return receipt requested,
postage prepaid, and 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:
Indas
Green Acquisition Corporation
Xxxxx
00-00, Xxx Xxxxxxx Xxxx
Xxxxxxx
Xxxxx
Xxxxxxxxx
000000
Attn:
Xxxxxx Xxxxxxxx
10
Any
notice, statement or demand authorized by this Warrant 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,
XX 00000
With
a
copy in each case to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxx
00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx,
Esq.
Fax
No:
(000) 000-0000
and
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, Esq.
Fax
No:
(000) 000-0000
and
Chardan
Capital Markets, LLC
00
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attn:
Fax
No:
(000) 000-0000
9.2 Applicable
Law.
The
validity, interpretation, and performance of this Warrant 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 Warrant Agreement shall be brought and enforced in the courts of the State
of New York or the United States District Court for the Southern District of
New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the
Company in any action, proceeding or claim.
9.3 Persons
Having Rights under this Warrant Agreement.
Nothing
in this Warrant Agreement expressed and nothing that may be implied from any
of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the parties hereto and the
registered holders of the Warrants and, for the purposes of Sections 6.1, 6.4,
7.4, 9.2 and 9.7 hereof, Chardan, any right, remedy, or claim under or by reason
of this Warrant Agreement or of any covenant, condition, stipulation, promise,
or agreement hereof. The Underwriters shall be deemed to be third-party
beneficiaries of this Warrant Agreement with respect to Sections 6.1, 6.4,
7.4,
9.2 and 9.7 hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and the Underwriters with respect
to
the Sections 6.1, 6.4, 7.4, 9.2 and 9.7 hereof) and their successors and assigns
and of the registered holders of the Warrants.
11
9.4 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.
9.5 Counterparts.
This
Warrant 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. All
such
counterparts may be delivered by facsimile or other electronic transmission,
which shall not effect the validity thereof.
9.6 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.
9.7 Amendments.
This
Warrant Agreement may be amended by the parties hereto without the consent
of
any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Warrant Agreement as the parties may deem necessary or desirable
and
that the parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of each of Chardan and the registered holders of a majority
of
the then outstanding Warrants. Notwithstanding the foregoing, the Company may
lower the Warrant Price or extend the duration of the Exercise Period in
accordance with Sections 3.1 and 3.2, respectively, without such
consent.
9.8 Severability.
This
Warrant 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 Warrant 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
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
[Signature
Page Follows]
12
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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Attest: ____________________________________
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INDAS
GREEN ACQUISITION CORPORATION
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By:
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Executive Officer
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Attest: ____________________________________
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CONTINENTAL
STOCK
TRANSFER & TRUST COMPANY
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By:
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Name:
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Title:
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