WARRANT AGREEMENT
EXHIBIT 4.4
This Warrant Agreement is made as of [ ], 2007 between TM Entertainment and Media,
Inc., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust
Company, a New York corporation (“Warrant Agent”).
WHEREAS, the Company has determined to issue and deliver to [ ] (“ ”) in a private placement 2,100,000 Warrants (the “Private Warrants”), each of such
Private Warrants evidencing the right of the holder thereof to purchase one share of Common Stock
for $5.50, subject to adjustment as provided herein;
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of Units (the
“Units”) and, in connection therewith, has determined to issue and deliver to Pali Capital,
Inc. (“Pali” and, together with the other underwriters, the “Underwriters”) (i)
9,000,000 Units (the “Public Units”), each Public Unit consisting of one share of the
Company’s Common Stock, par value $0.001 per share (“Common Stock”), and one warrant (all such
warrants collectively, the “Public Warrants”), (ii) an option to purchase up to 1,350,000
additional units (the “Over-Allotment Units”), each Over-Allotment Unit consisting of one
share of Common Stock, and one warrant (all such warrants collectively, the “Over-Allotment
Warrants”); and (iii) an option to purchase up to 700,000 Units (all such Units collectively,
the “UPO Units”) each UPO Unit consisting of one share of Common Stock, and one warrant
(the “UPO Warrants” and, together with the Public Warrants, the Private Warrants and the
Over-Allotment Warrants, the “Warrants”), each of such Warrants evidencing the right of the
holder thereof to purchase one share of Common Stock, for $5.50, subject to adjustment as described
herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(“Commission”) a Registration Statement, No. 333-[ ] on Form S-1 (“Registration
Statement”) for the registration, under the Securities Act of 1933, as amended (“Act”)
of, among other securities, the Public Units, the Over Allotment Units and the UPO Units, and the
Common Stock issuable upon exercise of the Public Warrants, the Over-Allotment Warrants and the UPO
Warrants and the Common Stock issuable upon the exercise of such 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 Warrant 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
Warrant Agreement.
2. WARRANTS.
2.1 FORM OF WARRANT. Each Public Warrant, Private Warrant, Over-Allotment Warrant and
UPO Warrant shall be issued in registered form only; except as set forth herein, shall be in
substantially the form of Exhibit A, Exhibit B, Exhibit C and Exhibit
D, respectively, attached hereto, the provisions of which are incorporated herein; and shall be
signed by, or bear the facsimile signature of, the Chairman and Chief Executive Officer 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 Warrant 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, or, in the case of the Private Warrants, the
delivery of definitive warrant certificates in physical form to the Warrant Agent, 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 BENEFICIAL OWNER; REGISTERED HOLDER. Prior to due presentment for registration
of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in
whose name such Warrant shall be registered upon the Warrant Register (“Registered
Holder”), as the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
2.4 DETACHABILITY OF WARRANTS. The securities comprising the Units will not be
separately transferable until 90 days after the later of the consummation by the Company of a
business combination (as described more fully in the Registration Statement, a
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“Business Combination”), or one day after the effective date of the Registration
Statement (the “Detachment Date”), unless Pali informs the Company of its decision to allow
earlier separate trading, but in no event will separate trading of the securities comprising the
Units be allowed until the Company (a) files a Current Report on Form 8-K which includes an audited
balance sheet reflecting the receipt by the Company of the gross proceeds of the Public Offering
including the proceeds received by the Company from the exercise of the Underwriters’ over
allotment option, if the over allotment option is exercised prior to the filing of the Form 8-K,
and (b) issues a press release announcing when such separate trading will begin.
2.5 PRIVATE WARRANTS, PUBLIC WARRANTS, UPO WARRANTS AND OVER-ALLOTMENT WARRANTS. The
UPO 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. The Private Warrants shall have the
same terms and be in the same form as the Public Warrants, except (i) that the Private Warrants may
be exercised on a cashless basis as provided for in Section 3.3.1, (ii) with respect to the
restrictions on transferability set forth in Section 3.2 hereof, and (iii) that such Warrants are
not subject to redemption as provided for in Section 6.5. The Over-Allotment Warrants shall have
the same terms and be in the same form as the Public Warrants.
3. TERMS AND EXERCISE OF WARRANTS.
3.1 WARRANT PRICE. Each Public Warrant, Private Warrant and Over-Allotment Warrant
shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to
the provisions of such Public Warrant, Private Warrant or Over-Allotment Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated
therein, at an exercise price of $5.50 per whole share, subject to the adjustments provided in
Section 4 and in the last sentence of this Section 3.1 hereof. Each UPO Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such UPO Warrant and of this Warrant Agreement, to purchase from the Company the
number of shares of Common Stock stated therein, at an exercise price of $10.00 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; provided, however,
that any change in the Warrant Price must apply equally to all of the Warrants, and provided
further that any reduction in Warrant Price must remain in effect for at least (20) business days.
3.2 DURATION OF WARRANTS. Except as set forth in this Section 3.2, a Warrant may be
exercised only during the period (“Exercise Period”) commencing on the later of (i) a
Business Combination and (ii) [ ], 2008 [One year from the effective date of the
Registration Statement], and terminating at 5:00 p.m., New York city time on the earlier to occur
of (a) [ ], 2011 [Four years from the effective date of the Registration Statement] or
(b) the date fixed for redemption of the Warrants as provided in Section 6 of this Warrant
Agreement (“Expiration Date”). Notwithstanding the foregoing, the Private Warrants may not
be sold or transferred (except to affiliates of [ ] or to the Company’s directors at the
same cost per Private Warrant originally paid by [ ] until the later of one year after the
effective
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date of the Registration Statement and 60 days after the date on which the Company consummates
a Business Combination. Except with respect to the right to receive the Redemption Price (as set
forth in Section 6 hereunder but excluding the Private Warrants), 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 Warrant 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 any extension of the duration of the
Warrants must apply equally to all of the Warrants, except that any amendment to the terms of the
Underwriter’s Warrants shall be subject to any limitations and conditions that may be imposed by
NASD Corporate Financing Rule 2710. Should the Company wish 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.
3.3 EXERCISE OF WARRANTS
3.3.1 PAYMENT. Subject to the provisions of the Warrant and this Warrant Agreement, a
Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof
by surrendering it, at the office of the Warrant Agent, or at the office of its successor as
Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form,
as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each whole
share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for the Common Stock, and
the issuance of the Common Stock, as follows:
3.3.1.1 in lawful money of the United States, in cash, good certified
check or good bank draft payable to the order of the Company (or as
otherwise agreed to by the Company); or
3.3.1.2 with respect to the Private Warrants, by surrendering such
Private Warrants for that number of shares of Common Stock equal to the
quotient obtained by dividing (x) the product of the number of shares of
Common Stock underlying the Warrants, multiplied by the difference between
the exercise price of the Warrants and the “Fair Market Value” (defined
below) by (y) the Fair Market Value. Solely for purposes of this Section,
the “Fair Market Value” shall mean the average reported last sale price of
the Common Stock for the five trading days ending on the trading day prior
to the date on which the Private Warrants are exercised.
3.3.2 ISSUANCE OF CERTIFICATES. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price, the Company shall issue to
the registered holder of such Warrant a certificate or certificates for the number of full shares
of Common Stock to which he is entitled, registered in such name or names as may be directed by
him, 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
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under the Act with
respect to the Common Stock is effective, or (ii) in the opinion of counsel to the Company, the exercise of the Warrants is exempt from the registration requirements of the
Act and such securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the Registered Holders reside.
3.3.3 LIMITATIONS. Notwithstanding the foregoing, and except with respect to the
Private Warrants, the Company shall not be obligated to deliver any Shares pursuant to the exercise
of a Warrant and shall have no obligation to settle the Warrant exercise unless a registration
statement under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the
Shares is effective and a current Prospectus is on file with the Commission. Except with respect to
the Private Warrants, in the event that a registration statement with respect to the Shares
underlying a Warrant is not effective under the Securities Act or a current Prospectus is not on
file with the Commission, the holder of such Warrant shall not be entitled to exercise such
Warrant. Notwithstanding anything to the contrary in this Warrant Agreement, under no circumstances
will the Company be required to net cash settle the Warrant exercise. Warrants may not be exercised
by, or Shares issued to, any registered holder in any state in which such exercise or issuance
would be unlawful. For the avoidance of doubt, as a result of this Section 3.3.3, any or all of the
Warrants may expire unexercised. In no event shall the registered Holder of a Warrant be entitled
to receive any monetary damages if the Common Stock underlying the Warrants have not been
registered by the Company pursuant to an effective registration statement or if a current
prospectus is not available for delivery by the Warrant Agent, provided the Company has fulfilled
its obligation to use its reasonable best efforts to effect such registration and ensure a current
prospectus is available for delivery by the Warrant Agent.
3.4 VALID ISSUANCE. All shares of Common Stock issued upon the proper exercise of a
Warrant in conformity with this Warrant Agreement shall be validly issued, fully paid and
nonassessable.
3.5 DATE OF ISSUANCE. Each person in whose name any such certificate for shares of
Common Stock is issued shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open.
4. ADJUSTMENTS.
4.1.1 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.
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4.1.2 EXTRAORDINARY DIVIDEND. If the Company, at any time while the Warrants are
outstanding and unexpired, shall pay a dividend in cash or securities to the holders of the Common
Stock (or shares of the Company’s capital stock into which the Warrants are convertible), then upon
the exercise of the Warrants, the registered holder shall be entitled to a proportionate share of
any such dividend as if the shares of Common Stock purchased upon exercise hereof by such
registered holder had been purchased and outstanding on the record date fixed for the determination
of the holders of the Common Stock entitled to receive such dividend.
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
Warrant 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 Public 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
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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 therefore until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and indicating whether
the new Warrants must also bear a restrictive legend.
5.4 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 Warrant 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.
5.7 PLACEMENT WARRANTS. Notwithstanding anything herein to the contrary, the Warrant
Agent shall not register for transfer any Private Warrants until after the consummation of the
Company’s initial business combination, except for (a) transfers of Private Warrants resulting from
the death of any of the holders thereof, (b) transfers by operation of law, (c) any transfer for
estate planning purposes to persons immediately related to the transferor by blood, marriage or
adoption, or (d) transfers to any trust solely for the benefit of such transferor and/or the
persons described in the preceding clause, 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 private placement of the Private Warrants.
6. REDEMPTION.
6.1 REDEMPTION. Subject to Sections 6.4 and 6.5 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. hereof at a redemption price of $.01 per Warrant (the “Redemption
Price”), provided that the last sales price of the Common Stock has been at least $11.50 per
share, on any 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; and provided,
further, that there is an effective registration statement with respect to the Common Stock
to enable the exercise of the Warrants during the period specified in Section 6.3 hereof. The
provisions of this Section 6.1 may not be modified, amended or deleted without the prior written
consent of Pali.
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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; REGISTRATION OR QUALIFICATION OF COMMON STOCK. 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 criterion for
redemption is met. In the event that the common stock issuable upon exercise of the Warrants has
not been registered or qualified or deemed to be exempt under the securities laws of the state of
residence of the holder of the Warrants, the Company will not have the right to redeem the
Warrants. The provisions of this Section 6.4 may not be modified, amended or deleted without the
prior written consent of Pali.
6.5 EXCLUSION OF PRIVATE WARRANTS. Notwithstanding anything in this Warrant Agreement
to the contrary, the Private Warrants shall not be subject to redemption if at the time of
redemption such warrants continue to be held by the Initial Purchaser. However, once such Private
Warrants are transferred, 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.
7. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1 NO RIGHTS AS STOCKHOLDER. A Warrant does not entitle the registered holder thereof
to any of the rights of a stockholder of the Company, including, without limitation, the right to
receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or
to receive notice as stockholders in respect of the meetings of stockholders or the election of
directors of the Company or any other matter.
7.2 LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If any Warrant is lost, stolen,
mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or
otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such
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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 Warrant 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 use its reasonable 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 Common Stock issuable upon exercise of the Warrants. In either case, the Company will use its
reasonable best efforts to cause the same to become effective on or prior to the commencement of
the Exercise Period and to maintain the effectiveness of such registration statement until the
expiration or redemption of the Warrants in accordance with the provisions of this Warrant
Agreement; provided, however, that the Company shall not be obligated to deliver Shares, and shall
not have penalties nor be liable to the Warrant holder for failure to deliver Shares pursuant to
Section 3, if a registration statement is not effective or a current Prospectus is not on file with
the Commission at the time of exercise of the Warrant by the holder. For the avoidance of doubt,
the Company may be liable to a Warrant holder for failure to fulfill its obligations to use
reasonable best efforts pursuant to this Section 7.4. The provisions of this Section 7.4 may not
be modified, amended or deleted without the prior written consent of Pali.
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
10
of the State of New York for the County of New York for the appointment of a successor Warrant
Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by
such court, shall be a corporation organized and existing under the laws of the State of New York,
in good standing and having its principal office in the Borough of Manhattan, City and State of New
York, and authorized under such laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment, any successor Warrant Agent shall
be vested with all the authority, powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder,
without any further act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company
shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such authority, powers,
rights, immunities, duties, and obligations.
8.2.2 NOTICE OF SUCCESSOR WARRANT AGENT. In the event a successor Warrant Agent shall
be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the
transfer agent for the Common Stock not later than the effective date of any such appointment.
8.2.3 MERGER OR CONSOLIDATION OF WARRANT AGENT. Any corporation into which the Warrant
Agent may be merged or with which it may be consolidated or any corporation resulting from any
merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant
Agent under this 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 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
11
thereof be herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chairman and Chief Executive 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.
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 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 shares
of Common Stock to be issued pursuant to this Warrant 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 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 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 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, 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
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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:
TM Entertainment and Media, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
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 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
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy to:
Pali Capital, Inc.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X Xxxxx
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X Xxxxx
and:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxx xx xxx Xxxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
9.3 APPLICABLE LAW. The validity, interpretation, and performance of this Agreement
and of the Warrants shall be governed in all respects by the laws of the State of New York, without
giving effect to the conflicts of law principle thereof. The Company and the Warrant Agent each
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
13
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 and
the Warrant Agent each 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
or the Warrant Agent 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 or the Warrant Agent in any action, proceeding or claim.
9.4 AMENDMENT. This Agreement and the warrant certificate issued hereunder may be
amended by the parties hereto without the consent of any registered holder for the purpose of
curing any ambiguity, or 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 (i) Pali, as representative of the Underwriters and (ii) the
registered holders of a majority of the then outstanding Warrants and no modification or amendment
shall affect the Public Warrants and the Private Warrants differently from one another.
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 hereof, respectively, without such
consent.
9.5 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, 9.2 and
9.4 hereof, Pali, any right, remedy, or claim under or by reason of this Warrant Agreement or of
any covenant, condition, stipulation, promise, or agreement hereof. Pali shall be deemed to be a
third-party beneficiary of this Warrant 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 Pali with
respect to 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.
9.6 EXAMINATION OF THE WARRANT AGREEMENT. A copy of this Warrant 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.
9.7 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.
14
9.8 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.
9.9 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 page intentionally left blank.]
15
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties hereto as of
the day and year first above written.
| TM ENTERTAINMENT AND MEDIA, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Warrant Agreement]
16
Exhibit A
[Form of Warrant]
17
