Exhibit 4.6
WARRANT AGREEMENT
This Warrant Agreement made as of ___________, 2007 (this "WARRANT
AGREEMENT") between HIGHPOINT ACQUISITION CORP., a Delaware corporation,
with offices at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000
(the "COMPANY"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York
corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"WARRANT AGENT").
WHEREAS, the Company is engaged in a public offering (a "PUBLIC
OFFERING") of Units (the "UNITS") and, in connection therewith, has determined
to issue and deliver up to (i) 9,583,334 warrants (the "PUBLIC WARRANTS") to the
public investors and (ii) as part of an Underwriter's purchase option, 500,000
warrants to X.X. Xxxxxxxxxx & Co., Inc. ("X.X. XXXXXXXXXX") or its designees
(the "REPRESENTATIVE'S WARRANTS"), which Representative's Warrants shall have an
exercise price of $5.00, subject to adjustment, and each of such Public Warrants
evidencing the right of the holder thereof to purchase one share of common
stock, par value $0.001 per share, of the Company's Common Stock (the "COMMON
STOCK") for $5.00, subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "SEC") a Registration Statement, No. 333-136908 on Form S-1
(as the same may be amended from time to time, the "REGISTRATION Statement") for
the registration, under the Securities Act of 1933, as amended (the "ACT") of,
among other securities, the Warrants and the Common Stock issuable upon exercise
of the Warrants, except as described in the Registration Statement; and
WHEREAS, the Company has received binding commitments (the "PRIVATE
PLACEMENT") from Harbor Healthcare Holding LLC and Moreco Partners LLC to
purchase an aggregate of 1,200,000 Warrants (the "PRIVATE WARRANTS") will be
issued, which Private Warrants will be substantially identical to the Public
Warrants; and
WHEREAS, each of Harbor Healthcare Holdings LLC and Moreco Partners
LLC will make convertible loans to the Company in an aggregate amount of
$800,000 (up to $920,000 if the over-allotment option is exercised in full)
immediately prior to the Public Offering, which convertible loans may be
convertible into up to 133,333 additional units (up to 153,333 additional units
if the over-allotment option is exercised in full), which units are convertible
into up to 133,333 (up to 153,333 if the over-allotment option is exercised in
full) shares of Common Stock and warrants to purchase 266,666 shares of Common
Stock (up to 306,666 if the over-allotment option is exercised in full), which
warrants (the "LOAN WARRANTS") will be substantially identical to the Public
Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Public Warrants, the Private Warrants, the Loan Warrants and the
Representative's Warrants (collectively, 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 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 Chief Executive Officer 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.
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 (the "WARRANT Register"), for the registration of original issuance and
the registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register (the "REGISTERED HOLDER"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
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2.4. Detachability of Warrants. The securities comprising the
Units will not be separately transferable until 90 days after the date hereof
(and the Units will thereafter cease trading unless X.X. Xxxxxxxxxx determines
to allow continued trading of the Units following such separation) unless X.X.
Xxxxxxxxxx informs the Company of its decision to allow earlier separate
trading, but in no event will X.X. Xxxxxxxxxx allow separate trading of the
securities comprising the Units until (i) 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 any 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, (ii) the Company files a Current Report on Form 8-K and issues a press
release announcing when such separate trading will commence, and (iii) the
business day following the earlier to occur of the expiration of the
underwriters' over-allotment option or its exercise in full.
2.5 Warrants and Representative's Warrants. The Private Warrants,
the Loan Warrants and 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 shares of Common Stock stated therein, at the price of $5.00 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.
3.2. Duration of Warrants. A Warrant may be exercised only during
the period (the "EXERCISE PERIOD") commencing on the later of (i) the
consummation by the Company of a merger, capital stock exchange, asset
acquisition or other similar business combination (as described more fully in
the Registration Statement, a "BUSINESS COMBINATION") or (ii) ____________,
2008, and terminating at 5:00 p.m., New York City time on the earlier to occur
of (i) _____________, 2011 or (ii) the date fixed for redemption of the Warrants
as provided in Section 6 of this Warrant Agreement (the date on which the
exercise period terminates, the "EXPIRATION DATE"). Except with respect to the
right to receive the Redemption Price (as set forth in Section 6 hereunder),
each Warrant not exercised on or before the Expiration Date shall become void,
and all rights thereunder and all rights in respect thereof under this 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.
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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 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, 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 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 Warrant Price and the "Fair
Market Value" (defined below) by (y) the Fair Market Value. Solely for purposes
of this Section 3.3.1, the "Fair Market Value" shall mean the average reported
last sale price of the Common Stock 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 Insider Warrants, in the event of
redemption pursuant to Section 6 hereof other than as set forth in the above
Section 3.3.1(b) and so long as such Insider Warrants are held by the Insider or
its affiliates, by surrendering such Insider 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" by (y) the Fair Market Value.
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 a registration statement under the Act with respect
to the Common Stock is effective. 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 a registration statement under the Act with
respect to the Common Stock underlying the Warrants is not effective, or because
such exercise would be unlawful with respect to a registered holder in any
state, the registered holder shall not be entitled to exercise such Warrants and
such Warrants may have no value and expire worthless. In no event will the
Company be obligated to pay such registered holder any cash or other
consideration or otherwise "net cash settle" the Warrant. Furthermore, in the
event that a registration statement is not effective under the Act with respect
to the Common Stock underlying the 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.
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3.3.3. 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.
3.3.4. 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.
3.3.4. Warrant Solicitation and Warrant Solicitation Fee.
(a) The Company has engaged X.X. Xxxxxxxxxx, on a
non-exclusive basis, as its agent for the solicitation of the exercise of the
Warrants. The Company, at its cost, will (i) assist X.X. Xxxxxxxxxx with respect
to such solicitation, if requested by X.X. Xxxxxxxxxx, and (ii) provide X.X.
Xxxxxxxxxx, and direct the Company's transfer agent and the Warrant Agent to
deliver to X.X. Xxxxxxxxxx, lists of the record and, to the extent known,
beneficial owners of the Company's Warrants. The Company hereby instructs the
Warrant Agent to cooperate with X.X. Xxxxxxxxxx in every respect in connection
with X.X. Xxxxxxxxxx'x solicitation activities, including, but not limited to,
providing to X.X. Xxxxxxxxxx, at the Company's cost, a list of record and
beneficial holders of the Warrants and circulating a prospectus or offering
circular disclosing the compensation arrangements referenced in Section 3.3.4(b)
below to holders of the Warrants at the time of exercise of the Warrants. In
addition to the conditions set forth in Section 3.3.4(b), X.X. Xxxxxxxxxx shall
accept payment of the warrant solicitation fee provided in Section 3.3.4(b) only
if it has provided bona fide services to the Company in connection with the
exercise of the Warrants and only to the extent that an investor who exercises
his Warrants specifically designates, in writing, that X.X. Xxxxxxxxxx solicited
his, her or its exercise. In addition to soliciting, either orally or in
writing, the exercise of Warrants by a Warrant holder, such services may also
include disseminating information, either orally or in writing, to Warrant
holders about the Company or the market for the Company's securities, or
assisting in the processing of the exercise of Warrants.
(b) In each instance in which a Warrant is exercised, the
Warrant Agent shall promptly give written notice of such exercise to the Company
and X.X. Xxxxxxxxxx (the "WARRANT AGENT'S EXERCISE NOTICE"). If, upon the
exercise of any Warrant more than one year from the effective date of the
Registration Statement, (i) the market price of the Company's Common Stock is
greater than the Warrant Price, (ii) disclosure of compensation arrangements
between the Company and X.X. Xxxxxxxxxx with respect to the solicitation of the
exercise of the Warrants was made both at the time of the Public Offering and at
the time of exercise (by delivery of the Prospectus or as otherwise required by
applicable law, rule or regulation), (iii) the holder of the Warrant confirms in
writing that the exercise of the Warrant was solicited by X.X. Xxxxxxxxxx, (iv)
the Warrant was not held in a discretionary account, and (v) the solicitation of
the exercise of the Warrant was not in violation of Regulation M (as such rule
or any successor rule may be in effect as of such time of exercise) promulgated
under the Securities Exchange Act of 1934, as amended, then the Warrant Agent,
simultaneously with the distribution of the Common Stock underlying the Warrants
so exercised in accordance with the instructions from the Company following
receipt of the proceeds to the Company received upon exercise of such
Warrant(s), shall, on behalf of the Company, pay to X.X. Xxxxxxxxxx a fee of 5%
of the Warrant Price, provided that X.X. Xxxxxxxxxx delivers to the Warrant
Agent within ten (10) business days from the date on which X.X. Xxxxxxxxxx has
received the Warrant Agent's Exercise Notice, a certificate that the conditions
set forth in the preceding clauses (iii), (iv) and (v) have been satisfied.
Notwithstanding the foregoing, no fee will be paid to X.X. Xxxxxxxxxx with
respect to the exercise by the Underwriters or their affiliates or the Company's
officers or directors of Warrants purchased by it or them and still held by them
for its or their own account. X.X. Xxxxxxxxxx and the Company may at any time
during business hours, examine the records of the Warrant Agent, including its
ledger of original Warrant certificates returned to the Warrant Agent upon
exercise of Warrants.
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(c) The provisions of this Section 3.3.4. may not be
modified, amended or deleted without the prior written consent of X.X.
Xxxxxxxxxx.
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 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.
4.2. 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 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.
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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.
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.
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5. Transfer and Exchange of Warrants.
5.1 Transfer of Warrants. Prior to the Detachment Date, 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, prior to the Detachment
Date, each transfer of a Unit on the register relating to such Units shall
operate also to transfer the Warrants included in such Unit. From and after the
Detachment Date, this Section 5.1 shall be of no further force and effect.
5.2. Registration of Transfer. The Warrant Agent shall register
the transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be cancelled by the
Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request.
5.3. Procedure for Surrender of Warrants. Warrants may be
surrendered to the Warrant Agent, together with a written request for exchange
or transfer, and thereupon the Warrant Agent shall issue in exchange therefor
one or more new Warrants as requested by the Registered Holder of the Warrants
so surrendered, representing an equal aggregate number of Warrants; provided,
however, 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.
5.4. 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.
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6. Redemption.
6.1. Redemption. Subject to Section 6.4 hereof and the prior
written approval of X.X. Xxxxxxxxxx,, 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 (the "REDEMPTION PRICE"), provided that the last closing sales price of
the Common Stock has been equal to or greater than $8.50 per share, 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, and
(b) a registration statement under the Act relating to the shares of common
stock issuable upon exercise of the Warrants is effective and expected to remain
effective until the redemption date and a prospectus relating to the shares of
common stock issuable upon exercise of the Warrants is available for use and
expected to remain available for use until the Redemption Date.
6.2. Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption. Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than 30 days prior to the date fixed
for redemption to the Registered Holders of the Warrants to be redeemed at their
last addresses as they shall appear on the Warrant Register. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the Registered Holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 3 of this Warrant Agreement at any time
after notice of redemption shall have been given by the Company pursuant to
Section 6.2. hereof and prior to the time and date fixed for redemption. On and
after the redemption date, the record holder of the Warrants shall have no
further rights except to receive, upon surrender of the Warrants, the Redemption
Price.
6.4 Outstanding Warrants Only. The Company understands 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 is met. The provisions
of this Section 6.4 may not be modified, amended or deleted without the prior
written consent of X.X. Xxxxxxxxxx.
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.
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7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor, and date as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3. Reservation of 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 take such action as is necessary to qualify for sale, in those
states in which the sale of the Warrants was initially qualified, 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 to maintain the effectiveness of such
registration statement until the expiration of the Warrants in accordance with
the provisions of this Warrant Agreement. The provisions of this Section 7.4 may
not be modified, amended or deleted without the prior written consent of X.X.
Xxxxxxxxxx.
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 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.
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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 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 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 Warrant Agreement.
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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 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 sent by certified mail or private courier
service within five days after deposit of such notice, postage prepaid, or sent
by facsimile transmission (with confirmation of receipt), addressed (until
another address is filed in writing by the Company with the Warrant Agent), as
follows:
-00-
Xxxxxxxxx Xxxxxxxxxxx Corp.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: J. Xxxxxxx Xxxxxxxx, Chief Executive Officer
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, or sent by facsimile
transmission (with confirmation of receipt) addressed (until another address is
filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: _________________
with a copy in each case to:
Blank Rome LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Seer, Esq.
and
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
and
X.X. Xxxxxxxxxx & Co., Inc.
00 Xxxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
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9.3. Applicable Law. The validity, interpretation, and
performance of this Warrant Agreement and of the Warrants shall be governed in
all respects by the laws of the State of New York, without giving effect to
conflict of laws principles that would result in the application of the
substantive 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 Warrant Agreement shall be brought and enforced in the courts of the State
of New York located in New York County or the United States District Court for
the Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim
9.4. Persons Having Rights under this Warrant Agreement. Nothing
in this Warrant Agreement expressed and nothing that may be implied from any of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or entity other than the parties hereto and the Registered
Holders of the Warrants (who shall, for all purposes hereunder, be deemed third
party beneficiaries of this Warrant Agreement) and, for the purposes of Sections
3.3.4, 6.1, 6.4, 7.4, 9.2 and 9.8 hereof, X.X. Xxxxxxxxxx, any right, remedy, or
claim under or by reason of this Warrant Agreement or of any covenant,
condition, stipulation, promise, or agreement hereof. X.X. Xxxxxxxxxx shall be
deemed to be a third-party beneficiary of this Warrant Agreement with respect to
Sections 3.3.4, 6.1, 6.4, 7.4, 9.2 and 9.8 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 X.X. Xxxxxxxxxx
with respect to the Sections 3.3.4, 6.1, 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 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.
9.6. 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.
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 Warrant Agreement may be amended by the
parties hereto without the consent of any Registered Holder for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein or adding or changing any other provisions with
respect to matters or questions arising under this Warrant Agreement as the
parties may deem necessary or desirable and that the parties deem shall not
adversely affect the interest of the Registered Holders. All other modifications
or amendments (except as otherwise specifically set forth herein), including any
amendment to increase the Warrant Price or shorten the Exercise Period, shall
require the written consent of each of X.X. Xxxxxxxxxx and the registered
holders of a majority of the then outstanding Warrants. Notwithstanding the
foregoing, the Company may lower the Warrant Price in accordance with Sections
3.1 without such consent.
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9.9. Severability. This Warrant Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Warrant Agreement
or of any other term or provision hereof. Furthermore, in lieu of any such
invalid or unenforceable term or provision, the parties hereto intend that there
shall be added as a part of this Warrant Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties hereto as of the day and year first above written.
HIGHPOINT ACQUISITION CORP.
By:
------------------------------------
Name: J. Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:
------------------------------------
Name:
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Title:
---------------------------------
-16-
