WARRANT AGREEMENT
Agreement made as of ________, 2011
between Green Power Enterprises, Inc., a Cayman Islands limited life exempted
company, with offices at Xx Xxxx. Xxxxx Xxxx, 0000-00 Xxxxx, Brasilinvest Xxxxx
XXX 00000-000, Xxx Xxxxx, Xxxxxx (“Company”), and Continental Stock Transfer
& Trust Company, a New York corporation, with offices at 00 Xxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Warrant Agent”).
WHEREAS, the Company has received
binding commitments from its initial shareholders and the underwriters in the
Public Offering (defined below) to purchase an aggregate of 4,050,000 warrants
and 1,000,000 warrants, respectively (collectively, the “Private Placement
Warrants”), pursuant to Subscription Agreements dated as of ________, 2011 (the
“Subscription Agreements”); and
WHEREAS, the Company is engaged in a
public offering (“Public Offering”) of units, each unit comprised of one
Ordinary Share (as defined below) and one Public Warrant (as defined below) (the
“Units”) and, in connection therewith, has determined to issue and deliver up to
(i) 5,750,000 Warrants (“Public Warrants”) to the public investors, and (ii)
250,000 Warrants underlying unit purchase options to be issued to Xxxxxx &
Xxxxxxx, LLC (“Xxxxxx”) or its designees (“Representative’s Warrants” and,
together with the Public Warrants and Private Placement Warrants, the
“Warrants”), each of such Warrants evidencing the right of the holder thereof to
purchase one ordinary share of the Company, par value $.0001 per share
(“Ordinary Share”), for $7.50, subject to adjustment as described herein;
and
WHEREAS, the Company has filed with the
Securities and Exchange Commission a Registration Statement on Form S-1, No.
333-146916 (“Registration Statement”), for the registration, under the
Securities Act of 1933, as amended (“Act”) of, among other securities, the
Warrants and the Ordinary Shares issuable upon exercise of the Warrants;
and
WHEREAS, the Company desires the
Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing
to so act, in connection with the issuance, registration, transfer, exchange,
redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide
for the form and provisions of the Warrants, the terms upon which they shall be
issued and exercised, and the respective rights, limitation of rights, and
immunities of the Company, the Warrant Agent, and the holders of the Warrants;
and
WHEREAS, all acts and things have been
done and performed which are necessary to make the Warrants, when executed on
behalf of the Company and countersigned by or on behalf of the Warrant Agent, as
provided herein, the valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the
mutual agreements herein contained, the parties hereto agree as
follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as
agent for the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
2.1. Form of
Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Exhibit A hereto, the provisions of which
are incorporated herein and shall be signed by, or bear the facsimile signature
of, the Chairman of the Board or President and Treasurer, Secretary or Assistant
Secretary of the Company and shall bear a facsimile of the Company’s seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
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2.2. Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1.
Warrant
Register. The Warrant Agent shall maintain books (“Warrant
Register”), for the registration of original issuance and the registration of
transfer of the Warrants. Upon the initial issuance of the Warrants,
the Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof in such denominations and otherwise in accordance
with instructions delivered to the Warrant Agent by the Company.
2.3.2.
Registered
Holder. Prior to due presentment for registration of transfer
of any Warrant, the Company and the Warrant Agent may deem and treat the person
in whose name such Warrant shall be registered upon the Warrant Register
(“registered holder”) as the absolute owner of such Warrant and of each Warrant
represented thereby (notwithstanding any notation of ownership or other writing
on the Warrant Certificate made by anyone other than the Company or the Warrant
Agent), for the purpose of any exercise thereof, and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4. Detachability of
Warrants. The securities comprising the Units will not be
separately transferable until five trading days following the earlier to occur
of the expiration or termination of Xxxxxx’x over-allotment option and its
exercise in full, but in no event will separate trading of the securities
comprising the Units begin until the Company files a Current Report on Form 8-K
which includes an audited balance sheet reflecting the receipt by the Company of
the gross proceeds of the Public Offering including the proceeds received by the
Company from the exercise of the over-allotment option, if the over-allotment
option is exercised on the date hereof.
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2.5 Warrant
Attributes.
2.5.1
Private Placement
Warrants. The Private Placement Warrants will be issued in the
same form as the Public Warrants but they (i) will be exercisable either for
cash or on a cashless basis at the holder’s option and (ii) will not be
redeemable by the Company, in either case as long as the Private Placement
Warrants are held by the initial purchasers or their affiliates and permitted
transferees (as prescribed in Section 5.6 hereof).
2.5.2 Representative’s
Warrants. The Representative’s 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 Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such
Warrant and of this Warrant Agreement, to purchase from the Company the number
of Ordinary Shares stated therein, at the price of $7.50 per whole share,
subject to the adjustments provided in Section 4 hereof and in the last sentence
of this Section 3.1. The term “Warrant Price” as used in this Warrant
Agreement refers to the price per share at which Ordinary Shares may be
purchased at the time a Warrant is exercised. The Company in its sole
discretion may lower the Warrant Price at any time prior to the Expiration
Date.
3.2. Duration of
Warrants. A Warrant may be exercised only during the period
(“Exercise Period”) commencing on the consummation by the Company of a merger,
capital stock exchange, asset acquisition or other similar business combination
with an operating company (“Business Combination”) (as described more fully in
the Registration Statement), and terminating at 5:00 p.m., New York City time on
the earlier to occur of (i) five years from the consummation of a Business
Combination and (ii) the Redemption Date as provided in Section 6.2 of this
Agreement (“Expiration Date”). Except with respect to the right to
receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant
not exercised on or before the Expiration Date shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement shall cease at
the close of business on the Expiration Date. The Company in its sole
discretion may extend the duration of the Warrants by delaying the Expiration
Date.
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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
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, as
follows:
(a) 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
(b) in
the event of redemption pursuant to Section 6 hereof in which the Company’s
management has elected to force all holders of Warrants to exercise such
Warrants on a “cashless basis,” by surrendering the Warrants for that number of
Ordinary Shares equal to the quotient obtained by dividing (x) the product of
the number of Ordinary Shares underlying the Warrants, multiplied by the
difference between the Warrant Price and the “Fair Market Value” (defined below)
by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b), the
“Fair Market Value” shall mean the average reported last sale price of the
Ordinary Shares for the 10 trading days ending on the third trading day prior to
the date on which the notice of redemption is sent to holders of Warrant
pursuant to Section 6 hereof; or
(c) with
respect to any Private Placement Warrants, so long as such Private Placement
Warrants are held by the initial purchasers or their affiliates, by surrendering
such Private Placement Warrants for that number of Ordinary Shares equal to the
quotient obtained by dividing (x) the product of the number of Ordinary Shares
underlying the Warrants, multiplied by the difference between the exercise price
of the Warrants and the “Fair Market Value” by (y) the Fair Market Value;
provided, however, that no cashless exercise shall be permitted unless the Fair
Market Value is higher than the exercise price. Solely for purposes of this
Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last
sale price of the Ordinary Shares for the 10 trading days ending on the day
prior to the date of exercise; or
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(d) in
the event the registration statement required by Section 7.4 hereof is not
effective and current, by surrendering such Warrants for that number of Ordinary
Shares equal to the quotient obtained by dividing (x) the product of the number
of Ordinary Shares underlying the Warrants, multiplied by the difference between
the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair
Market Value; provided, however, that no cashless exercise shall be permitted
unless the Fair Market Value is higher than the exercise price. Solely for
purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the
average reported last sale price of the Ordinary Shares for the 10 trading days
ending on the day prior to the date of exercise
3.3.2. Issuance of
Certificates. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price, the
Company shall issue to the registered holder of such Warrant a certificate or
certificates for the number of full Ordinary Shares to which he 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 and
shall have no obligation to settle such Warrant exercise unless a registration
statement under the Act with respect to the Ordinary Shares is effective,
subject to the Company’s satisfying its obligations under Section 7.4. In the
event that a registration statement with respect to the Ordinary Shares
underlying a Warrant is not effective under the Act, the holder of such Warrant
shall not be entitled to exercise such Warrant and such Warrant may have no
value and expire worthless. In no event will the Company be required to net cash
settle the Warrant exercise. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which such exercise
would be unlawful. In the event that a registration statement is not effective
for the exercised Public Warrants and Representative’s Warrants, the purchaser
of a Unit containing such Warrants will have paid the full purchase price for
the Unit solely for the Ordinary Share included in such Unit.
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3.3.3. Valid
Issuance. All Ordinary Shares issued upon the proper exercise
of a Warrant in conformity with this Agreement shall be validly issued, fully
paid and nonassessable.
3.3.4. Date of
Issuance. Each person in whose name any such certificate for
Ordinary Shares is issued shall for all purposes be deemed to have become the
holder of record of such shares on the date on which the Warrant was surrendered
and payment of the Warrant Price was made, irrespective of the date of delivery
of such certificate, except that, if the date of such surrender and payment is a
date when the 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. Stock Dividends - Split
Ups. If after the date hereof, and subject to the provisions
of Section 4.6 below, the number of outstanding Ordinary Shares is increased by
a stock dividend payable in Ordinary Shares, or by a split up of Ordinary
Shares, or other similar event, then, on the effective date of such stock
dividend, split up or similar event, the number of Ordinary Shares issuable on
exercise of each Warrant shall be increased in proportion to such increase in
outstanding Ordinary Shares.
4.2. Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding Ordinary Shares is
decreased by a consolidation, combination, reverse stock split or
reclassification of Ordinary Shares or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of Ordinary Shares issuable on
exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding Ordinary Shares.
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4.3 Extraordinary
Dividends. If the Company, at any time while the Warrants (or
rights to purchase the Warrants) are outstanding and unexpired, shall pay a
dividend or make a distribution in cash, securities or other assets to the
holders of the Ordinary Shares on account of such Ordinary Shares (or other
shares of the Company’s capital stock into which the Warrants are convertible),
other than (a) as described in subsection 4.1 above, (b) Ordinary Cash Dividends
(as defined below), (c) to satisfy the conversion rights of the holders of the
Ordinary Shares in connection with a proposed initial Business Combination, (d)
as a result of the repurchase of Ordinary Shares by the Company in connection
with an initial Business Combination or (e) in connection with the Company’s
liquidation and the distribution of its assets upon its failure to consummate a
Business Combination (any such non-excluded event being referred to herein as an
“Extraordinary Dividend”), then the Warrant Price shall be decreased, effective
immediately after the effective date of such Extraordinary Dividend, by the
amount of cash and the fair market value (as determined by the Company’s board
of directors, in good faith) of any securities or other assets paid on each
share of the Ordinary Shares in respect of such Extraordinary Dividend. For
purposes of this subsection 4.3, “Ordinary Cash Dividends” means any cash
dividend or cash distribution which, when combined on a per share of the
Ordinary Shares basis, with the per share amounts of all other cash dividends
and cash distributions paid on the Ordinary Shares during the 365-day period
ending on the date of declaration of such dividend or distribution (as adjusted
to appropriately reflect any of the events referred to in other subsections of
this Section 4 and excluding cash dividends or cash distributions that resulted
in an adjustment to the Warrant Price or to the number of Ordinary Shares
issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the
offering price of the Units in the Offering).
4.4 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, 4.2 and
4.3 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.
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4.5. 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, 4.2 or 4.3 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 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
Ordinary Shares covered by Section 4.1, 4.2 or 4.3, then such adjustment shall
be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section
4.5. The provisions of this Section 4.5 shall similarly apply to
successive reclassifications, reorganizations, mergers or consolidations, sales
or other transfers.
4.6. 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, 4.4 or 4.5, then, in any such
event, the Company shall give written notice to each 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.
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4.7. 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 or down to the nearest whole number
the number of the Ordinary Shares to be issued to the Warrant
holder.
4.8. 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. 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.
5.2. Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as
requested by the registered holder of the Warrants so surrendered, representing
an equal aggregate number of Warrants; provided, however, that in the event that
a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent
shall not cancel such Warrant and issue new Warrants in exchange therefor until
the Warrant Agent has received an opinion of counsel for the Company stating
that such transfer may be made and indicating whether the new Warrants must also
bear a restrictive legend.
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5.3. Fractional
Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which will result in the issuance of a
warrant certificate for a fraction of a warrant.
5.4. Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5.
Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement, the
Warrants required to be issued pursuant to the provisions of this Section 5, and
the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such
purpose.
5.6.
Private
Placement Warrants. The Warrant Agent shall not register any transfer of
Private Placement Warrants until after the consummation by the Company of a
Business Combination, except for transfers (i) to an entity’s members upon its
dissolution and liquidation, (ii) to an entity’s officers, directors and/or
employees, (iii) resulting from the death of any holder of Private Placement
Warrants and (iv) to relatives and trusts for estate planning
purposes, in each case on the condition that prior to such
registration for transfer, the Warrant Agent shall be presented with written
documentation pursuant to which each transferee or the trustee or legal guardian
for such transferee agrees to be bound by the terms of the Subscription
Agreement and of the Escrow Agreement among the Company, the holders of Private
Placement Warrants and the Warrant Agent.
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6. Redemption.
6.1. Redemption. Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time while they are exercisable and so long as an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants is current and a prospectus is available for use throughout the “30-day redemption period” (defined below)
and prior to their expiration, at the office of the Warrant Agent, upon the
notice referred to in Section 6.2, at the price of $.01 per Warrant (“Redemption
Price”), provided that the last sales price of the Ordinary Shares has been at
least $15.00 per share (subject to adjustment in accordance with Section 4
hereof), 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.
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 (the
“Redemption Date”). Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to the
Redemption Date (“30-day redemption period”) to the registered holders of the Warrants to be redeemed at
their last addresses as they shall appear on the registration
books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
6.3. Exercise After Notice of
Redemption. The Warrants may be exercised, for cash (or on a
“cashless basis” in accordance with Section 3 of this Agreement) at any time
after notice of redemption shall have been given by the Company pursuant to
Section 6.2 hereof and prior to the Redemption Date. In the event the
Company determines to require all holders of Warrants to exercise their Warrants
on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption
will contain the information necessary to calculate the number of Ordinary
Shares to be received upon exercise of the Warrants, including the “Fair Market
Value” in such case. On and after the Redemption Date, the record holder of the
Warrants shall have no further rights except to receive, upon surrender of the
Warrants, the Redemption Price.
6.4
Outstanding Warrants
Only. The Company understands that the redemption rights provided 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 of the Warrants by the Company. 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 its Warrants 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 Xxxxxx.
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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 that will be
sufficient to permit the exercise in full of all outstanding Warrants issued
pursuant to this Agreement.
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7.4. Registration of Ordinary
Shares. The Company agrees that as soon as practicable, but in
no event later than ___ months after the closing of a Business Combination, it
shall use its 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 use its best efforts to take such action as is
necessary to qualify for sale, in those states in which the Warrants were
initially offered by the Company, the Ordinary Shares issuable upon exercise of
the Warrants. In either case, the Company will use its best efforts
to cause the same to become effective and to maintain the effectiveness of such
registration statement until the expiration of the Warrants in accordance with
the provisions of this Agreement. In addition, the Company agrees to
use its best 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, subject to the proviso above. If any such
post-effective amendment or registration statement has not been declared
effective by the ___-month anniversary following the closing of the Business
Combination, holders of the Warrants shall have the right, during the period
beginning on the ___-month anniversary after the closing of the Business
Combination and ending upon such post-effective amendment or registration
statement being declared effective by the SEC, and during any other period when
the Company shall fail to have maintained an effective registration statement
covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise
such Warrants on a “cashless basis” as determined in accordance with Section
3.3.1(d). The Company shall provide the Warrant Agent with an opinion
of counsel for the Company (which shall be an outside law firm with securities
law experience) stating that (i) the exercise of the Warrants on a cashless
basis in accordance with this Section 7.4 is not required to be registered under
the Act and (ii) the Ordinary Shares issued upon such exercise will be freely
tradable under U.S. federal securities laws by anyone who is not an affiliate
(as such term is defined in Rule 144 under the Act) of the Company and,
accordingly, will not be required to bear a restrictive legend. For
the avoidance of any doubt, unless and until all of the Warrants have been
exercised on a cashless basis, the Company shall continue to be obligated to
comply with its registration obligations under the first three sentences of this
Section 7.4. The provisions of this Section 7.4 may not be modified,
amended or deleted without the prior written consent of Xxxxxx.
8. Concerning the Warrant Agent
and Other Matters.
8.1. Payment of
Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in
respect of the issuance or delivery of 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.
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8.2. Resignation, Consolidation,
or Merger of Warrant Agent.
8.2.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing
to the Company. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the Warrant
Agent or by the holder of the Warrant (who shall, with such notice, submit his
Warrant for inspection by the Company), then the holder of any Warrant may apply
to the Supreme Court of the State of New York for the County of New York for the
appointment of a successor Warrant Agent at the Company’s cost. Any
successor Warrant Agent, whether appointed by the Company or by such court,
shall be a corporation organized and existing under the laws of the State of New
York, in good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant
Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request
of any successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2. 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.
15
8.2.3. Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent
may be merged or with which it may be consolidated or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a party
shall be the successor Warrant Agent under this Agreement without any further
act.
8.3. Fees and Expenses of Warrant
Agent.
8.3.1. Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2. Further
Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
8.4. Liability of Warrant
Agent.
8.4.1. Reliance on Company
Statement. Whenever in the performance of its duties under
this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the President or
Chairman of the Board of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this
Agreement.
16
8.4.2. Indemnity.
(a) The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent’s negligence, willful misconduct, or bad faith.
(b)
In
case any action arising out of this Agreement is brought against the Warrant
Agent, the Company will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, and after notice from the
Company to the Warrant Agent of its election so to assume the defense, the
Company will not be liable to the Warrant Agent under this Section
8.4.2(b) for any legal or
other expenses subsequently incurred by the Warrant Agent in connection with the
defense thereof. The Warrant Agent shall not, without the prior
written consent of the Company, effect any settlement of any pending or
threatened action hereunder.
8.4.3. Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Ordinary Shares to be issued pursuant to this 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 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
Ordinary Shares through the exercise of Warrants.
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8.6 Waiver. The
Warrant Agent hereby waives any and all right or set-off of any and all 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 to be entered into 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 funds in the
Trust Account for any reason.
9. Miscellaneous
Provisions.
9.1. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
9.2. Notices. Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Attn: Chief
Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
18
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
with a
copy in each case to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
and
DLA Piper
LLP (US)
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxx-Xxxxxx
Xxxxxx, Esq.
and
Xxxxxx
& Xxxxxxx, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxxx
X. Xxxxxxxxx
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 conflicts of law principles that
would result in the application of the substantive laws of another
jurisdiction. The Company and Warrant Agent hereby agree that any
action, proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of New
York or the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company and Warrant Agent hereby waive 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
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 in any
action, proceeding or claim.
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9.4. Persons Having Rights under
this Agreement. Nothing in this Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the parties hereto and the registered holders of the Warrants and, for the
purposes of Sections 6.4, 7.4 and 9.2 hereof, Xxxxxx, any right, remedy, or
claim under or by reason of this Warrant Agreement or of any covenant,
condition, stipulation, promise, or agreement hereof. Xxxxxx shall be
deemed to be a third-party beneficiary of this Agreement with respect to
Sections 6.4, 7.4 and 9.2 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 Xxxxxx with
respect to the Sections 6.4, 7.4 and 9.2 hereof) and their successors and
assigns and of the registered holders of the Warrants.
9.5. Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
City and State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6. Counterparts. This
Agreement may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
9.7. Effect of
Headings. The Section headings herein are for convenience only
and are not part of this Warrant Agreement and shall not affect the
interpretation thereof.
20
9.8 Amendments. This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any
amendment to increase the Warrant Price or shorten the Exercise Period, shall
require the written consent or vote of 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 pursuant to Sections 3.1 and 3.2, respectively, without the consent of
the registered holders.
21
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of the day and year first above
written.
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By:
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Name:
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Title:
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CONTINENTAL
STOCK TRANSFER
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&
TRUST COMPANY
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By:
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Name:
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Title:
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