WARRANT AGREEMENT
THIS
WARRANT AGREEMENT
(this “Agreement”)
is made as of the 14th
day of December, 2007 between Xxxxxxxxxxx Acquisition Corp., a Delaware
corporation, with offices at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxx 00000 (the “Company”),
and American Stock Transfer & Trust Company, with offices at 00 Xxxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Warrant
Agent”).
WHEREAS,
in connection with the Company’s formation, the Company issued 10,781,250 units
(the “Founder
Units”)
of the Company, each unit consisting of one share of common stock of the
Company, par value $0.001 per share (the “Common
Stock”),
and one warrant exercisable for one share of Common Stock, with each warrant
evidencing the right of the holder thereof to purchase one share of Common
Stock
for $6.00 (the “Founder
Warrants”),
subject to adjustment as described herein;
WHEREAS,
the Company is engaged in a public offering (the “Public
Offering”)
of units of the Company, each unit consisting of one share of Common Stock
and
one warrant exercisable for one share of Common Stock, and in connection
therewith, has determined to issue and deliver up to 37,500,000 units plus
up to
an additional 5,625,000 units if the underwriters exercise in full their
over-allotment option (the “Public
Units”
and, together with the Founder Units, the “Units”)
to the public investors for $8.00 per unit, with each warrant evidencing the
right of the holder thereof to purchase one share of Common Stock for $6.00
(the
“Public
Warrants”),
subject to adjustment as described herein;
WHEREAS,
concurrently with the Public Offering, the Company intends to engage in a
private offering of 6,000,000 warrants to the “Private
Investors”
listed on Exhibit A hereto (the “Sponsor
Warrants”,
and together with the Founder Warrants, the “Private
Warrants”,
with the Private Warrants and the Public Warrants together being the
“Warrants”),
each evidencing the right of the holder thereof to purchase one share of Common
Stock for $6.00, subject to adjustment as described herein;
WHEREAS,
the Company intends to file with the Securities and Exchange Commission (the
“SEC”)
a Registration Statement on Form S-1 (the “Registration
Statement”)
for the registration, under the Securities Act of 1933, as amended (the
“Act”)
of, among other securities, 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, call, exercise and cancellation of the
Warrants;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
1
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 Warrant attached as Exhibit B hereto, the provisions of which are
incorporated herein, and shall be signed by, or bear the facsimile signature
of,
the President and Secretary of the Company and shall bear a facsimile of the
Company’s seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which
such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
2.2.
Effect
of Countersignature.
Unless and until countersigned by the Warrant Agent pursuant to this Agreement,
a Warrant shall be invalid and of no effect and may not be exercised by the
holder thereof.
2.3.
Registration.
2.3.1.
Warrant
Register.
The Warrant Agent shall maintain books (the “Warrant
Register”)
for the registration of original issuance and the registration of transfers
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
the
5th
day after the earlier to occur of the expiration of the underwriters’
over-allotment option or its exercise in full, but
in no event will separate trading of the securities comprising the Units be
allowed until the Company files a Current Report on Form 8-K (the “Initial
8-K”)
with the SEC which includes an audited balance sheet reflecting the receipt
by
the Company of the gross proceeds of the Public Offering, and an additional
Current Report on Form 8-K including the proceeds received by the Company from
the exercise of the Underwriter’s over-allotment option, if the over-allotment
option is exercised after the filing of the Initial 8-K.
2.5
Private
Warrants.
The Private Warrants shall have the same terms and be in the same form as the
Public Warrants, except that (i) the Founder Warrants will become exercisable
after consummation of a Business Combination (as defined below) if and when
the
last sale price of the Common Stock on the American Stock Exchange, or other
national securities exchange on which the Common Stock may be traded, exceeds
$11.50 per share for any twenty (20) trading days within a thirty (30) trading
day period beginning 90 calendar days after such Business Combination; (ii)
the
Founder Warrants and the Sponsor Warrants will be non-redeemable so long as
they
are held by the Private Investors or their Permitted Transferees (as defined
below); (iii) the Founder Warrants will not be (and the Common Stock to be
issued upon exercise of such warrants will not be) transferable or salable
by
the Private Investors or their Permitted Transferees until one year after the
consummation of a Business Combination; and (iv) the Sponsor Warrants will
not
be (and the Common Stock to be issued upon exercise of such warrants will not
be) transferable or salable by the Private Investors or their Permitted
Transferees until the 90th
day after the consummation of a Business Combination. “Permitted Transferees”
shall mean the recipient of a Private Warrant through a transfer by any of
the
Private Investors (i) by gift to a member of such transferor’s immediate family
for estate planning purposes or to a trust, the beneficiary of which is the
transferor or a member of the transferor’s immediate family, (ii) if the
transferor is not a natural person, by gift to a member of the immediate family
of such transferor’s controlling person for estate planning purposes or to a
trust, the beneficiary of which is such transferor’s controlling person or a
member of the immediate family of such transferor’s controlling person, (iii) by
virtue of the laws of descent and distribution upon death of transferor, or
(iv)
pursuant to a qualified domestic relations order; provided, however, that such
permitted transfers may be effected only upon the respective transferee’s
written agreement to be bound by the same transfer restrictions as such Private
Investor upon receiving such Warrants (except in the case of clause (iii),
in
which case the transferee will execute such agreement as soon as practicable
after such transfer).
2
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
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. The term “Warrant
Price”
as used in this 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
(as defined below); provided, however, that any change in the Warrant Price must
apply identically in percentage terms to all of the Warrants, and provided
further that any reduction in Warrant Price must remain in effect for at least
twenty (20) business days.
3.2.
Duration
of Warrants.
A Warrant may be exercised only during the period (the “Exercise
Period”)
commencing on the later of (i) the completion
of an acquisition by the Company of one or more operating businesses or assets
through a merger, capital stock exchange, asset or stock acquisition,
exchangeable share transaction or other similar business combination having
collectively a fair market value of at least 80% of the Company’s net assets at
the time of the acquisition (a “Business
Combination”)
and
(ii) one year after the effective date of the Registration Statement; and all
Warrants shall terminate at 5:00 p.m., New York City time on the earlier to
occur of (i) four years after the effective date of the Registration Statement
and (ii) the date fixed for calling the Warrants as provided in Section 6 of
this Agreement (the “Expiration
Date”);
provided, however, that (i) the Warrants shall not be exercisable and the
Company shall not be obligated to issue Common Stock in respect thereof unless,
at the time a holder seeks to exercise the Warrants, a prospectus relating
to
the Common Stock issuable upon exercise of the Warrants is current and the
Common Stock has been registered or qualified or deemed to be exempt under
the
securities laws of the state of residence of the holder of the Warrants and
(ii)
in addition to the exercise conditions set forth in this Section 3.2, the
Founder Warrants may only be exercisable following the consummation of a
Business Combination if and when the last sale price of the Common Stock on
the
American Stock Exchange, or other national securities exchange on which the
Common Stock may be traded, exceeds $11.50 per share for any twenty (20) trading
days within a thirty (30) trading day period beginning 90 calendar days after
such Business Combination. Except with respect to the right to receive the
Call
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 any extension of the duration of the Warrants must apply equally to 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, and shall, if possible, provide at least two (2) months advance notice
to the American Stock Exchange, but in no event will the Company provide less
than twenty (20) days advance notice of such extension to the American Stock
Exchange.
3
3.3.
Exercise
of Warrants.
3.3.1.
Payment.
Subject to the provisions of the Warrant and this 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, with the subscription form, as set
forth in the Warrant, duly executed, and, except as set forth in Section 3.4,
by
paying in full, in lawful money of the United States, good certified check
or
good bank draft payable to the order of the Company (or as otherwise agreed
to
by the Company), 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, 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, 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 such holder 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, subject to the Company satisfying
its obligations under Section 7.4 to use its best efforts. In the event that
a
registration statement with respect to the Common Stock underlying a Warrant
is
not effective under the Act, the holder of such Warrant shall not be entitled
to
exercise such Warrant. Notwithstanding anything to the contrary contained in
this Agreement, under no circumstances will the Company be required to net
cash
settle the exercise of the Warrants. Warrants may not be exercised by, and
securities may not be issued to, any Registered Holder in any jurisdiction
in
which such exercise would be unlawful. As a result of the provisions of this
Section 3.3.2, 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 shares of Common Stock underlying the Warrants have not been
registered by the Company pursuant to an effective registration statement or
if
a current prospectus is not available for delivery by the Warrant Agent;
provided that 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.
3.3.3.
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.
3.3.4.
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.
4
3.4.
Cashless
Exercise.
3.4.1.
Determination
of Amount.
In lieu of the payment of the Warrant Price, a Registered Holder shall have
the
right (but not the obligation) to convert any exercisable but unexercised
Warrants into shares of Common Stock (the “Conversion
Right”)
as follows: upon exercise of the Conversion Right, the Company shall deliver
to
the holder (without payment by the holder of any of the Warrant Price in cash)
that number of shares of Common Stock equal to the quotient obtained by dividing
(x) the Value (as defined below) of the Warrants being exercised by (y) the
Current Market Value (as defined below). The “Value” of the Warrants being
exercised shall equal the amount derived from subtracting (a) (i) the Warrant
Price multiplied by (ii) the number of shares of Common Stock issuable upon
exercise of the Warrants being converted from (b) (i) the Current Market Value
of a share of Common Stock multiplied by (ii) the number of shares of Common
Stock issuable upon exercise of the Warrants being converted. As used herein,
the term “Current
Market Value”
per share of Common Stock at any date shall mean the average last sale price
of
the Common Stock for the ten (10) trading days ending on the third trading
day
prior to the date on which the Warrant Agent receives notice of the Registered
Holder’s exercise of the Conversion Right in the principal trading market for
the Common Stock as reported by any national securities exchange or quoted
on
the NASD OTC Bulletin Board (or its successor entity), as the case may be;
provided, that if the fair market value of the Common Stock cannot be so
determined, the “Current Market Value” per share shall be determined by the
Board of Directors of the Company, in good faith.
3.4.2.
Mechanics
Of Cashless Exercise.
The Conversion Right may be exercised by a Registered Holder during the Exercise
Period by surrendering the Warrant with the duly executed exercise form attached
thereto with the cashless exercise section completed to the Warrant Agent,
exercising the Conversion Right and specifying the total number of shares of
Common Stock the Registered Holder will purchase pursuant to such Conversion
Right; provided
that any holder that holds Warrants in a brokerage account shall follow the
procedures of such holder’s broker and the Depository Trust Company in order to
exercise the Conversion Right.
4.
Adjustments.
4.1.
Stock
Dividends; Split-Ups.
If after the consummation of the Public Offering, 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 consummation of the Public Offering, and subject to the provisions
of Section 4.6, the number of outstanding shares of Common Stock is decreased
by
a consolidation, combination, reverse stock split or reclassification of shares
of Common Stock or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar
event, the number of shares of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares of
Common Stock.
4.3.
Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Sections 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.
5
4.4.
Replacement
of Securities upon Reorganization.
In case of any reclassification or reorganization of the outstanding shares
of
Common Stock (other than a change covered by Sections 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 Sections 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 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.
4.6.
No
Fractional Shares.
Notwithstanding any provision contained in this 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 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 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.
4.8.
Extraordinary
Dividends.
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, 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 a Business
Combination 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.
6
4.9.
Notice
of Certain Transactions.
In the event that the Company shall (a) offer to holders of its Common Stock
rights to subscribe for or to purchase any securities convertible into shares
of
Common Stock or shares of stock of any class or any other securities, rights
or
options, (b) issue any rights, options or warrants entitling the holders of
Common Stock to subscribe for shares of Common Stock or (c) make a tender offer,
redemption offer or exchange offer with respect to the Common Stock, the Company
shall send to the Warrant holders a notice of such action or offer. Such notice
shall be mailed to the Registered Holders at their addresses as they appear
in
the Warrant Register, which shall specify the record date for the purposes
of
such dividend, distribution or rights, or the date such issuance or event is
to
take place and the date of participation therein by the holders of Common Stock,
if any such date is to be fixed, and shall briefly indicate the effect of such
action on the Common Stock and on the number and kind of any other shares of
stock and on other property, if any, and the number of shares of Common Stock
and other property, if any, issuable upon exercise of each Warrant and the
Warrant Price after giving effect to any adjustment pursuant to this Section
4
which would be required as a result of such action. Such notice shall be given
as promptly as practicable after the Company has taken any such
action.
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.
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 apply to any holder of Warrants 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.
7
6.
Call.
6.1.
Call.
Subject to Section 6.4 hereof, not less than all of the outstanding Warrants
may
be called, 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 “Call
Price”),
provided that (i) the last sale price of the Common Stock on the American Stock
Exchange, or other national securities exchange on which the Common Stock may
be
traded, has been at least $11.50 per share (the “Trigger
Price”)
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 the call
is given (the “Measurement
Period”)
and (ii) the Public Warrants and the Common Stock underlying such Warrants
are
covered by an effective registration statement and a current prospectus from
the
beginning of the Measurement Period through the date fixed for the call;
provided, further, that with respect to the Founder Warrants and the Sponsor
Warrants, such call right shall not be applicable so long as such Warrants
are
held by any of the Private Investors or their Permitted
Transferees.
6.2.
Call
Date; Notice of Call.
In the event the Company shall elect to call all of the Warrants, the Company
shall fix a date for the call, which date shall be prior to the expiration
of
the Warrants (the “Call
Date”).
Notice of the call shall be mailed by first class mail, postage prepaid, by
the
Company not less than thirty (30) days prior to the date fixed for the call
to
the Registered Holders of the Warrants to be called at their last addresses
as
they shall appear in the Warrant Register. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date sent whether or not the Registered Holder received such notice. In the
event of any adjustment to the Warrant Price or the number of shares of Common
Stock issuable on exercise of each Warrant as provided in Section 4, a
proportional adjustment shall be made to the Trigger Price.
6.3.
Exercise
after Notice of the Call.
The Warrants may be exercised for cash at any time after notice of the call
shall have been given by the Company pursuant to Section 6.2 hereof and prior
to
the Call Date. On and after the Call Date, the record holder of the Warrants
shall have no further rights except to receive, upon surrender of the Warrants,
the Call Price.
6.4
Outstanding
Warrants Only.
The Company understands that the call rights provided for in 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 the call.
However, once such purchase rights are exercised, the Company may call the
Warrants issued upon such exercise provided that the criteria for the call
set
forth in Section 6.1 are met.
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, receiving dividends
or other distributions, exercising 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 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.
8
7.4.
Registration
of Common Stock.
The Company agrees that, prior to the commencement of the Exercise Period,
it
shall file with the SEC 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 Public Warrants were initially offered by the
Company, the Common Stock issuable upon exercise of the Public 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 use its
best efforts to maintain the effectiveness of such registration statement and
ensure that a current prospectus is on file with the SEC 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 securities, and
shall not have penalties for failure to deliver securities, if a registration
statement is not effective or a current prospectus is not on file with the
SEC
at the time of exercise 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 shares of Common Stock issued upon such exercise, in accordance
with the Company’s request, either (i) a prospectus relating to the shares of
Common Stock deliverable upon exercise of Warrants and complying in all material
respects with the Act 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 of Common Stock.
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 sixty (60) days after it has been notified in writing of such
resignation or incapacity by the Warrant Agent or by the holder of a 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
shall be 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, rights, immunities, duties and obligations
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.
9
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, Credit Suisse Securities
(USA) LLC (“Credit
Suisse”)
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 Agreement, without any further act or deed.
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
Agreement.
8.4.
Liability
of Warrant Agent.
8.4.1.
Reliance
on Company Statement.
Whenever in the performance of its duties under this Agreement, the Warrant
Agent shall deem it necessary or desirable that any fact or matter be proved
or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a statement signed by the Chief Executive Officer or Chairman of the Board
of
Directors 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.
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 Common Stock
through the exercise of Warrants.
10
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 American Stock Transfer & Trust Company, 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 or other communication required or which may be given hereunder shall
be
in writing and shall be sent by certified or registered mail, by private
national courier service (return receipt requested, postage prepaid), by
personal delivery or by facsimile transmission. Such notice or communication
shall be deemed given (a) if mailed, two business days after the date of
mailing, (b) if sent by national courier service, one business day after being
sent, (c) if delivered personally, when so delivered, or (d) if sent by
facsimile transmission, on the second business day after such facsimile is
transmitted, in each case as follows:
if
to the Warrant Agent, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxxx
Fax:
(000) 000-0000
if
to the Company, to:
Xxxxxxxxxxx
Acquisition Corp.
0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxx
Fax:
(000) 000-0000
if
to Credit Suisse, to:
Credit
Suisse Securities (USA) LLC
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn:
LCD-IBD
with
a
copy to:
11
Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxx, Esq., Louis P.A. Lehot, Esq.
Fax:
(000) 000-0000
in
each case with a copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx
X. Xxxx, Esq.
Fax:
(000) 000-0000
9.3.
Applicable
Law.
This
Agreement and the Warrants shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts executed in
and
to be performed in that State, including, without limitation, Sections 5-1401
and 5-1402 of the New York General Obligations Law and the New York Civil
Practice Laws and Rules 327(b). 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 the Company 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
Waiver
of Trial by Jury.
Each
party hereto hereby irrevocably and unconditionally waives the right to a trial
by jury in any action, suit, counterclaim or other proceeding (whether based
on
contract, tort or otherwise) arising out of, connected with or relating to
this
Agreement, the transactions contemplated hereby, or the actions of the Investor
in the negotiation, administration, performance or enforcement
hereof.
9.5.
Persons
Having Rights under this Agreement.
Nothing in this Agreement expressed and nothing that may be implied from any
of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the parties hereto and the
Registered Holders of the Warrants and, for the purposes of Sections 2.5, 6.1,
6.4, 7.4 and 9.2 hereof, Credit Suisse (the “Representative”),
any right, remedy, or claim under or by reason of this Agreement or of any
covenant, condition, stipulation, promise, or agreement hereof. The
Representative shall be deemed to be a third-party beneficiary of this Agreement
with respect to Sections 2.5, 6.1, 6.4, 7.4 and 9.2 hereof. All covenants,
conditions, stipulations, promises, and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the parties hereto (and the
Representative with respect to Sections 2.5, 6.1, 6.4, 7.4 and 9.2 hereof),
their successors and assigns and the Registered Holders of the
Warrants.
9.6.
Examination
of this 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 examination by the Registered Holder of any Warrant. Prior to such
examination, the Warrant Agent may require any such holder to submit his Warrant
for inspection by it.
9.7.
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.
9.8.
Effect
of Headings.
The section headings herein are for convenience only and are not part of this
Agreement and shall not affect the interpretation hereof.
9.9.
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 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, but not limited to, any amendment
to increase the Warrant Price or shorten the Exercise Period, shall require
the
written consent of the Representative and the Registered Holders of a majority
of the then outstanding Warrants. Notwithstanding the foregoing, the Company
may
lower the Warrant Price or extend the duration of the Exercise Period in
accordance with Sections 3.1 and 3.2 without such consent.
[Remainder
of page intentionally left blank]
12
IN
WITNESS WHEREOF,
this Agreement has been duly executed by the parties hereto as of the day and
year first above written.
| XXXXXXXXXXX ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer and
Chief
Financial Officer
|
||
| AMERICAN STOCK TRANSFER & TRUST COMPANY | ||
| |
|
|
| By: |
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
|
||
13
