EXHIBIT 4.5
FORM OF
WARRANT AGREEMENT
This Warrant Agreement (this "Agreement") made as of _________ __, 2006,
by and between Media & Entertainment Holdings, Inc., a Delaware corporation,
with offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 ("Company"), and
Continental Stock Transfer & Trust Company, a New York corporation, with offices
at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public Offering")
of Units ("Units") and, in connection therewith, has determined to issue and
deliver up to 12,937,500 warrants ("Public Warrants") to the public investors,
each of such Public Warrants evidencing the right of the holder thereof to
purchase one share of common stock, par value $.0001 per share, of the Company's
Common Stock ("Common Stock") for $6.00, subject to adjustment as described
herein; and
WHEREAS, the Company has determined to issue and deliver up to 1,125,000
warrants ("Underwriters' Warrants") to Ladenburg Xxxxxxxx & Co. Inc.
("Ladenburg") or its designees, each of such Underwriters' Warrants evidencing
the right of the holder thereof to purchase one share of Common Stock for $7.50,
subject to adjustment as described herein (the Underwriters' Warrants together
with the Public Warrants, being referred to herein as the "Warrants"),
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement, No. 333-128218 on Form S-1 ("Registration
Statement") for the registration under the Securities Act of 1933, as amended
("Act") of, among other securities, the Warrants and the Common Stock issuable
upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant
Agent to act as agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such
appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. WARRANTS.
2.1 FORM OF WARRANT. Each Public Warrant and Underwriters' Warrants
shall be issued in registered form only, shall be in substantially the forms of
Exhibit A and Exhibit B hereto, respectively, the provisions of which are
incorporated herein and shall be signed by, or bear the facsimile signature of,
the Chairman of the Board or Chief Executive Officer 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 Agreement, a Warrant shall be invalid and of
no effect and may not be exercised by the holder thereof.
2.3 REGISTRATION.
2.3.1 WARRANT REGISTER. The Warrant Agent shall maintain books
("Warrant Register") for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2 REGISTERED HOLDER. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register ("registered holder"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.4 DETACHABILITY OF WARRANTS. The securities comprising the Units
will not be separately transferable until 90 days after the date hereof unless
Ladenburg informs the Company of its decision to allow earlier separate trading,
but in no event will Ladenburg 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 the proceeds received by the
Company from the exercise of the Underwriter's over-allotment option, if the
over-allotment option is exercised prior to the filing of the Form 8-K and (ii)
at least five days have passed since the distribution of the Units in the Public
Offering has been completed.
2.5 PUBLIC WARRANTS AND UNDERWRITERS' WARRANTS. The Underwriters'
Warrants shall have the same terms and be in the same form as the Public
Warrants.
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3. TERMS AND EXERCISE OF WARRANTS.
3.1 WARRANT PRICE. Each Public Warrant shall, when countersigned by
the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Public Warrant and of this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the
price of $6.00 per whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. Each Underwriters' Warrant
shall, when countersigned by the Warrant Agent, entitle the registered holder
thereof, subject to the provisions of such Underwriters' Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common
Stock stated therein, at the price of $7.50 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term "Warrant Price" as used in this Warrant Agreement refers
to the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date for a period of not less than 10
business days; provided that any such reduction shall be identical in percentage
terms among all of the Warrants.
3.2 DURATION OF WARRANTS. A Warrant may be exercised only during the
period ("Exercise Period") commencing on the later of the consummation by the
Company of a merger, capital stock exchange, asset acquisition or other similar
business combination ("Business Combination") (as described more fully in the
Company's Registration Statement) or _________ ___, 2007, and terminating at
5:00 p.m., New York City time on the earlier to occur of (i) ________ ___, 2010
or (ii) the date fixed for redemption of the Warrants as provided in Section 6
of this Agreement ("Expiration Date"). Except with respect to the right to
receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant
not exercised on or before the Expiration Date shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement shall cease at
the close of business on the Expiration Date. The Company in its sole discretion
may extend the duration of the Warrants by delaying the Expiration Date;
provided, however, that the Company will provide notice to registered holders of
the Warrants of such extension of not less than 20 days; provided, further, that
any such extension shall be identical in duration among all of the Warrants.
3.3 EXERCISE OF WARRANTS.
3.3.1 PAYMENT. Subject to the provisions of the Warrant and
this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it, at the office
of the Warrant Agent, or at the office of its successor as Warrant Agent, in the
Borough of Manhattan, City and State of New York, with the subscription form, as
set forth in the Warrant, duly executed, and by paying in full, in lawful money
of the United States, in cash, good certified check or good bank draft payable
to the order of the Company, 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
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of Common Stock to which he is entitled, registered in such name or names as may
be directed by him, and if such Warrant shall not have been exercised in full, a
new countersigned Warrant for the number of shares as to which such Warrant
shall not have been exercised. Notwithstanding the foregoing, the Company shall
not be obligated to deliver any securities pursuant to the exercise of a Warrant
unless (i) a registration statement under the Act with respect to the Common
Stock is effective or (ii) in the opinion of counsel to the Company, the
exercise of the Warrants is exempt from the registration requirements of the Act
and such securities are qualified for sale or exempt from qualification under
applicable securities laws of the states or other jurisdictions in which the
registered holders reside. Warrants may not be exercised by, or securities
issued to, any registered holder in any state in which such exercise would be
unlawful.
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. ADJUSTMENTS.
4.1 STOCK DIVIDENDS SPLIT UPS. If after the date hereof, and subject
to the provisions of Section 4.6, 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 issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares.
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 issuable on exercise of
each Warrant shall be decreased in proportion to such decrease in outstanding
shares.
4.3 ADJUSTMENTS IN EXERCISE PRICE. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to
the nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
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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, by a Warrant holder of the number of shares of Common
Stock of the Company obtainable upon exercise of the Warrants 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 on 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 forms of Public Warrant and Underwriters'
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
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countersigned, whether in exchange or substitution for an outstanding Warrant or
otherwise, may be in the form as so changed.
4.8 NOTICE OF CERTAIN TRANSACTIONS. In the event that the Company
shall propose to (a) offer the 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 or exchange
offer with respect to the Common Stock, the Company shall send to the Warrant
holders a notice of such proposed 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 Article 4 which would be
required as a result of such action. Such notice shall be given as promptly as
practicable after the Board of Directors of the Company (the "Board") has
determined to take any such action and (x) in the case of any action covered by
clause (a) or (b) above at least 10 days prior to the record date for
determining the holders of the Common Stock for purposes of such action or (y)
in the case of any other such action at least 20 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of Common Stock, whichever shall be the earlier.
4.9 OTHER EVENTS. If any event occurs as to which the foregoing
provisions of this Article 4 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board, fairly and
adequately protect the purchase rights of the registered holders of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board, to protect such purchase
rights as aforesaid.
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
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restrictive legend, the Warrant Agent shall not cancel such Warrant and issue
new Warrants in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive legend.
5.3 FRACTIONAL WARRANTS. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4 SERVICE CHARGES. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5 WARRANT EXECUTION AND COUNTERSIGNATURE. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms of
this Agreement, the Warrants required to be issued pursuant to the provisions of
this Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
6. REDEMPTION.
6.1 REDEMPTION. Subject to Section 6.4 hereof, not less than all of
the outstanding Warrants may be redeemed, at the option of the Company, at any
time after they become exercisable and prior to their expiration, at the office
of the Warrant Agent, upon the notice referred to in Section 6.2, at the price
of $.01 per Warrant ("Redemption Price"), provided that the last sales price of
the Common Stock has been equal to or greater than $11.50 per share, on each of
twenty (20) trading days within any thirty (30) trading day period ending on the
third business day prior to the date on which notice of redemption is given. The
provisions of this Section 6.1 may not be modified, amended or deleted without
the prior written consent of Ladenburg.
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 registration books. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder received such notice.
6.3 EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants may be
exercised, for cash or on a "cashless basis", in accordance with Section 3 of
this Agreement at any time after notice of redemption shall have been given by
the Company pursuant to Section 6.2 hereof and prior to the 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.
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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, including the opportunity of the Warrant holder to exercise prior to
redemption pursuant to Section 6.3. The provisions of this Section 6.4 may not
be modified, amended or deleted without the prior written consent of Xxxxxxxxx.
0. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1 NO RIGHTS AS STOCKHOLDER. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter.
7.2 LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity or otherwise as they may in their discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 RESERVATION OF COMMON STOCK. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 REGISTRATION OF COMMON STOCK. The Company agrees that prior to
the commencement of the Exercise Period, it shall 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 Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company will use its
best efforts to cause the same to become effective on or prior to the
commencement of the Exercise Period and to maintain the effectiveness of such
registration statement until the expiration of the Public Warrants and
Underwriters' Warrants in accordance with the provisions of this Agreement. The
provisions of this Section 7.4 may not be modified, amended or deleted without
the prior written consent of Ladenburg.
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.
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8.2 RESIGNATION, CONSOLIDATION, OR MERGER OF WARRANT AGENT.
8.2.1 APPOINTMENT OF SUCCESSOR WARRANT AGENT. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after giving sixty
(60) days' notice in writing to the Company. If the office of the Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor Warrant Agent in place of the Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice,
submit his Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent at the Company's
cost.. Any successor Warrant Agent, whether appointed by the Company or by such
court, shall be a corporation organized and existing under the laws of the State
of New York, in good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant Agent shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2 NOTICE OF SUCCESSOR WARRANT AGENT. In the event a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the 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.
8.3 FEES AND EXPENSES OF WARRANT AGENT.
8.3.1 REMUNERATION. The Company agrees to pay the Warrant
Agent reasonable remuneration for its services as such Warrant Agent hereunder
and will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2 FURTHER ASSURANCES. The Company agrees to perform,
execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
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8.4 LIABILITY OF WARRANT AGENT.
8.4.1 RELIANCE ON COMPANY STATEMENT. Whenever in the
performance of its duties under this Warrant Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
statement signed by the President or Chairman of the Board of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions
of this Agreement.
8.4.2 INDEMNITY. The Warrant Agent shall be liable hereunder
only for its own negligence, willful misconduct or bad faith. The Company agrees
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3 EXCLUSIONS. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
9. MISCELLANEOUS PROVISIONS.
9.1 SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2 NOTICES. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any Warrant to or on the Company shall be sufficiently given when so delivered
if by hand or overnight delivery or if sent by certified mail or private courier
service five days after deposit of such notice, postage prepaid,
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addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
Media & Entertainment Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Chairman of the Board and
Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
Xxxxxxxxx Xxxxxxx, LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
Xxxxxx X. Xxxxx, Esq.
and
Xxxxxxxxxxx and Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
and
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx
9.3 APPLICABLE LAW. The validity, interpretation, and performance of
this Agreement and of the Warrants shall be governed in all respects by the laws
of the State of New York, without giving effect to conflict of laws. The Company
hereby agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which
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jurisdiction shall be exclusive. The Company hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenience forum.
Any such process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
9.4 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall 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, 9.2 and
9.8 hereof, Ladenburg, any right, remedy, or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. Ladenburg shall be deemed to be third-party beneficiary of
this Agreement with respect to Sections 2.5, 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 Ladenburg with respect to the Sections 2.5, 6.1, 6.4, 7.4,
9.2 and 9.8 hereof) and their successors and assigns and of the registered
holders of the Warrants.
9.5 EXAMINATION OF THE WARRANT AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.7 EFFECT OF HEADINGS. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
9.8 AMENDMENTS. This Agreement may be amended by the parties hereto
without the consent of any registered holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with respect to
matters or questions arising under this Agreement as the parties may deem
necessary or desirable and that the parties deem shall not adversely affect the
interest of the registered holders. All other modifications or amendments,
including any amendment to increase the Warrant Price or shorten the Exercise
Period, shall require the written consent of each of Ladenburg 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,
respectively, without such consent.
9.9 SEVERABILITY. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
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this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Attest: MEDIA & ENTERTAINMENT HOLDINGS, INC.
By:___________________________________
_______ Xxxxxxx X. Xxxxxxx, Chairman of the Board and
Chief Executive Officer
Attest: CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By:____________________________________
_______ Xxxxxx X. Xxxxxx, Chairman of the Board
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