EXHIBIT 10.2
EXECUTION COPY
WARRANT AGREEMENT
Agreement made as of February 28, 2007 between Xxxxxxxxx Ventures Ltd., a
Delaware corporation, with offices at 00 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx
Xxxx 00000 ("COMPANY"), and Continental Stock Transfer & Trust Company, a New
York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("WARRANT AGENT").
WHEREAS, the Company has determined to issue and deliver to Xxxxxxxxx
Capital Partners LLC, a Delaware limited liability company ("CCP") in a private
placement 5,000,000 Warrants (the "SPONSOR WARRANTS"), each of such Sponsor
Warrants evidencing the right of the holder thereof to purchase one share of
common stock, par value $0.001 per share of the Company (the "COMMON STOCK") for
$6.00, subject to adjustment as provided herein;
WHEREAS, the Company is engaged in a public offering ("PUBLIC OFFERING")
of Units ("UNITS") and, in connection therewith, has determined to issue and
deliver up to 13,750,000 Warrants (the "PUBLIC WARRANTS" and, together with the
Sponsor Warrants, the "WARRANTS") to the public investors, each of such Public
Warrants evidencing the right of the holder thereof to purchase one share of
Common Stock, for $6.00, subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
a Registration Statement, No. 333-135741 on Form S-1 ("REGISTRATION STATEMENT")
for the registration, under the Securities Act of 1933, as amended ("ACT"), of,
among other securities, the Warrants and the Common Stock issuable upon exercise
of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption exercise and cancellation
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 A WARRANT AGENT. The Company hereby appoints the Warrant
Agent to act as agent for the Company with respect to 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 or
Secretary of the Company and shall bear a facsimile of the Company's seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
2.2 EFFECT OF COUNTERSIGNATURE. Unless and until countersigned by
the Warrant Agent in accordance with 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.
2.3.3 DETACHABILITY OF WARRANTS. The securities comprising
the Units will begin separate trading five business days following the earlier
to occur of (i) expiration or termination of the underwriter's over-allotment
option or (ii) the exercise in full of the over-allotment option (the
"DETACHMENT DATE"), subject in either case to filing by the Company of a Current
Report on Form 8-K with the Securities and Exchange Commission containing an
audited balance sheet reflecting the receipt by the Company of the gross
proceeds of the Public Offering and issuing a press release announcing when such
separate trading will begin.
2.3.4 SPONSOR WARRANTS. The Sponsor Warrants shall have the
same terms and be in the same form as the Public Warrants except with respect to
the transferability of the Warrants as set forth in Section 5.1.2 and the
redemption of the Warrants as set forth in Section 6.6.
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3. TERMS AND EXERCISE OF WARRANT.
3.1 WARRANT PRICE. Each Public Warrant shall, when countersigned
by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Public Warrant and of this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the
price of $6.00 per whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. Each Sponsor Warrant shall,
when countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Sponsor Warrant and of this Warrant Agreement,
to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $6.00 per whole share, subject to adjustments provided
in Section 4 hereof and the last sentence of this Section 3.1 The term "WARRANT
PRICE" as used in this Warrant Agreement refers to the price per whole 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 for a period of not less than 10 business days; provided,
that any such reduction shall apply equally to all the Warrants.
3.2 DURATION OF WARRANTS. A Warrant may be exercised only during
the period ("EXERCISE PERIOD") commencing on the later of (i) the consummation
by the Company of a merger, capital stock exchange, stock purchase, asset
acquisition or other similar business combination having collectively, a fair
market value (as calculated in accordance with the requirements set forth in the
Company's Certificate of Incorporation) of at least 80% of the Company's net
assets (excluding the underwriter's deferred discount) at the time of such
acquisition ("BUSINESS COMBINATION") (as described more fully in the Company's
Registration Statement) and (ii) March 1, 2008, and terminating at 5:00 p.m.,
New York City time on the earlier to occur of (a) March 1, 2011 or (b) the date
fixed for redemption of the Warrants as provided in Section 6 of this Agreement
("EXPIRATION DATE"). Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company in its sole discretion may extend
the duration of the Warrants by delaying the Expiration Date; provided, however,
that the Company will provide notice to registered holders of the Warrants of
such extension of not less than 20 days; provided, further, that any such
extension shall be identical in duration among all of the Warrants. 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, 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 by
cashless exercise (as set forth in the Warrant), 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
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Warrant, the exchange of the Warrant for the Common Stock, and the issuance of
the Common Stock.
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 (if applicable), 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, she or it is entitled, registered in such
name or names as may be directed by him, her or it, and if such Warrant shall
not have been exercised in full, a new countersigned Warrant for the number of
shares as to which such Warrant shall not have been exercised. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Warrant and shall have no obligation to settle the
Warrant exercise unless a registration statement under the Act with respect to
the Common Stock is effective.
3.3.3. LIMITATIONS. Notwithstanding the foregoing, 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. 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, including for the avoidance of doubt, the Sponsor
Warrants, 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 available for delivery by the Warrant
Agent, provided the Company has fulfilled its obligation to use its best efforts
to effect such registration and ensure a current Prospectus is available for
delivery by the Warrant Agent. Warrants may not be exercised by, or securities
issued to, any registered holder in any state in which such exercise would be
unlawful. The shares of common stock issuable upon exercise of Sponsor Warrants
shall be unregistered shares. In the event that a registration statement is not
effective for the exercised Warrants, the purchaser of a unit containing such
Warrant, will have paid the full purchase price for the unit solely for the
shares included in such unit.
3.3.4 VALID ISSUANCE. All shares of Common Stock issued
upon the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.5 DATE OF ISSUANCE. Each person in whose name any such
certificate for 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
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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.
4.1.2 EXTRAORDINARY DIVIDEND. If the Company, at any time
during the Exercise Period, shall pay a dividend or make a distribution in cash,
securities or other assets to the holders of Common Stock (or other shares of
the Company's capital stock into which the Warrants are convertible), other than
(w) as described in Sections 4.1.1, 4.2 or 4.4, (x) regular quarterly or other
periodic dividends, (y) in connection with the conversion rights of the holders
of Common Stock upon consummation of the Company's initial Business Combination
(as such term is used in the Registration Statement) or (z) 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/or 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 Common Stock in respect of such Extraordinary
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 WARRANT PRICE. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4.1.1 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 4.1.1 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
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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.
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 4.1.1, 4.1.2, 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 will elect, upon exercise, to either (i) round up to the nearest
whole number the number of shares of Common Stock to be issued to the holder or
(ii) pay out the fractional interest in cash.
4.7 FORM OF WARRANT. The form of Warrant need not be changed
because of any adjustment pursuant to this Section 4, and Warrants issued after
such adjustment may state the same Warrant Price and the same number of shares
as is stated in the Warrants initially issued pursuant to this Agreement.
However, the Company may at any time in its sole discretion make any change in
the form of Warrant that the Company may deem appropriate and that does not
affect the substance thereof, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant or
otherwise, may be in the form as so changed.
5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1 TRANSFER OF WARRANTS.
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5.1.1 TRANSFER OF PUBLIC WARRANTS. Prior to the Detachment
Date, the Public Warrants may be transferred or exchanged only together with the
Unit in which such Public Warrant is included, and only for the purpose of
effecting, or in conjunction with, a transfer or exchange of such Unit.
Furthermore, each transfer of a Unit issued in the Public Offering or a Unit
issued to the Partners or in the private placement 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.
5.1.2. TRANSFER OF SPONSOR WARRANTS. Prior to the completion
of a Business Combination, the Sponsor Warrants may not be transferred or sold
by CCP other than to members of the Company's management team, but the
transferees receiving such Sponsor Warrants must first agree to be subject to
the same transfer and sale restrictions imposed on CCP.
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. Upon any such registration of
transfer, the Company shall execute, and the Warrant Agent shall countersign and
deliver, in the name of the designated transferee a new Warrant Certificate or
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants.
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.
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.
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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., at the price of $.01 per Warrant ("REDEMPTION PRICE"), provided
that the last sales price of the Common Stock has been at least $11.50 per share
(subject to proportionate adjustment to reflect adjustment to the Warrant Price
as provided in Section 4.3), for 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.
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, which date shall be prior to the expiration of the Warrants
(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 date
fixed for redemption to the registered holders of the Warrants to be redeemed at
their last addresses as they shall appear on the Warrant Register. Any notice
mailed in the manner herein provided shall be conclusively presumed to have been
duly given whether or not the registered holder received such notice.
6.3 EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the time and date fixed for redemption. On and after the
Redemption Date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 OUTSTANDING WARRANTS ONLY. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption are met.
6.5 EXCLUSION OF SPONSOR WARRANTS. The Sponsor Warrants shall not
be subject to redemption.
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 new Warrant shall
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constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 RESERVATION OF COMMON STOCK. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 REGISTRATION OF COMMON STOCK. The Company agrees that prior to
the commencement of the Exercise Period, it shall use its best efforts to
prepare and file with the Securities and Exchange Commission (the "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 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
best efforts to cause the same to become effective on or prior to the
commencement of the Exercise Period and shall use its best efforts to maintain
the effectiveness of such registration statement and insure that a current
Prospectus is on file with the Commission until the expiration of the Warrants
in accordance with the provisions of this Agreement provided, however, that the
Company shall not be obligated to deliver Common Stock, and shall not have
penalties nor be liable to the Warrant holder for failure to deliver Common
Stock 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.
7.5 DELIVERY OF PROSPECTUS OR NOTICE. Upon the exercise of any
Warrant, if the Company requests, the Warrant Agent shall deliver to the holder
of such Warrant, prior to or concurrently with the delivery of the Common Stock
issued upon such exercise, in accordance with the Company's request, either (i)
a prospectus relating to the Shares deliverable upon exercise of Warrants and
complying in all material respects with the Securities Act (the "PROSPECTUS") or
(ii) the notice referred to in Rule 173 under the Act.
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
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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 Common
Stock not later than the effective date of any such appointment.
8.2.3 MERGER OF 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 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 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
10
Agent. The Warrant Agent may rely upon such statement for any action taken or
suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2 INDEMNITY. The Warrant Agent shall be liable
hereunder only for its own negligence, willful misconduct or bad faith. The
Company agrees to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3 EXCLUSIONS. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
8.6 WAIVER. The Warrant Agent hereby waives any and all right,
title, interest or claim of any kind ("CLAIM") in or to any distribution of the
Trust Account (as defined in that certain Investment Management Trust Agreement,
dated as of the date hereof, by and between the Company and JPMorgan Chase Bank,
NA 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 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:
11
Xxxxxxxxx Ventures Ltd.
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn: Chairman
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust
Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
------------------------
------------------------
------------------------
and
------------------------
------------------------
------------------------
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 applicable to contracts formed and to be formed
entirely within the State of New York, without giving effect to conflict of law
provisions thereof to the extent such principles or rules would require or
permit the application of the laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
9.4 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall
12
be construed, to confer upon, or give to, any person or corporation other than
the parties hereto and the registered holders of the Warrants, any right,
remedy, or claim under or by reason of this Warrant Agreement or of any
covenant, condition, stipulation, promise, or agreement 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
their successors and assigns and of the registered holders of the Warrants.
9.5 EXAMINATION OF THE WARRANT AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.7 EFFECT OF HEADINGS. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
9.8 AMENDMENTS. 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 of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase the
Warrant Price or shorten the Exercise Period, shall require the written consent
of the registered holders of a majority of the then outstanding Warrants and no
modification or amendment shall affect the Sponsor Warrants and the Public
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, respectively, without such
consent.
* * *
13
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Attest: XXXXXXXXX VENTURES LTD.
By: /s/ XXXXXXXXXXX XXXXXX
------------------------ ---------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Chief Executive Officer
Attest: CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By: /s/ XXXXXX XXXXXX
------------------------ ---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
