WARRANT AGREEMENT
This
Warrant Agreement (this “Warrant
Agreement”)
made as of [●],
2007, between Secure America Acquisition Corporation, a Delaware corporation,
with offices at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 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 has received a binding commitment from Secure America Acquisition
Holdings, LLC (the “Founder”)
to
purchase an aggregate of 1,525,000 warrants (the “Founder
Warrants”);
WHEREAS,
the Company is engaged in a public offering (the “Public
Offering”)
of
units (the “Units”)
and,
in connection therewith, has determined to issue and deliver up to 10,000,000
warrants to the public investors (the “Public
Warrants”
and,
together with the Founder Warrants, the “Warrants”),
each
of such Warrants evidencing the right of the holder thereof to purchase one
share of common stock, par value $0.0001 per share, of the Company (the
“Common
Stock”)
for
$6.00 per share, subject to adjustments as described herein;
WHEREAS,
the Company has filed with the Securities and Exchange Commission a registration
statement on Form S-1, No. 333-144028 (the
“Registration
Statement”),
for
the registration, under the Securities Act of 1933, as amended (the
“Act”),
of,
among other securities, the Public Warrants and the Common Stock issuable
upon
exercise of the Public Warrants;
WHEREAS,
the Company desires that the Warrant Agent 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;
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 Agreement.
2. Warrants.
2.1 Form
of Public Warrant.
Each
Public Warrant shall be issued in registered form only, shall be in
substantially the form of Exhibit
A
hereto,
the provisions of which are incorporated herein, and shall be signed by, or
bear
the facsimile signature of, the Chairman of the Board, the Chief Executive
Officer or the President, and the 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 Public Warrant shall
have ceased to serve in the capacity in which such person signed the Public
Warrant before such Public Warrant is issued, it may be issued with the same
effect as if he or she had not ceased to be such at the date of
issuance.
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2.2 Form
of Founder Warrant.
The
Founder Warrants will be issued in the same form as the Public Warrants except
that the Founder Warrants, (i) subject to certain limited exceptions described
below, will not be transferable or salable until they are released from escrow,
which will not occur until the later of (a) one year after the date of the
final
prospectus included in the Registration Statement and (b) sixty days after
the
consummation of the Company’s initial Business Combination (as defined below),
(ii) will be exercisable on a cashless basis in accordance with Section 3.3.1(b)
hereof, (iii) will not be redeemable by the Company so long as they are still
held by the Founder or a member of the Founder as of the date of this Agreement,
and (iv) may be exercised for unregistered shares so long as a registration
statement relating to the Common Stock issuable upon exercise of the warrants
is
not effective and current.
Prior
to
their release from escrow, the Founder Warrants may only be transferred (i)
to
persons or entities controlling, controlled by, or under common control with
the
Founder, or to any stockholder, member, partner or limited partner of such
entity, or (ii) to family members and trusts of permitted assignees for estate
planning purposes or, upon the death of any such person, to an estate or
beneficiaries of permitted assignees. In each case, such transferees will be
subject to the same transfer restrictions as the Founder until after the Company
completes its initial Business Combination.
2.3 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.
2.4 Registration.
2.4.1 Warrant
Register.
The
Warrant Agent shall maintain books (the “Warrant
Register”),
for
the registration of the original issuance and 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.
2.4.2 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.
2.5 Detachability
of Public Warrants.
The
securities comprising the Units will not be separately transferable until 90
days after the date of the final prospectus included in the Registration
Statement unless SunTrust Xxxxxxxx Xxxxxxxx, Inc., as representative of the
underwriters (“SunTrust”)
informs the Company of its decision to allow earlier separate trading, but
in no
event will SunTrust allow separate trading of the securities comprising the
Units until the underwriters’ over-allotment option has either expired or been
exercised and the Company files a Current Report on Form 8-K including an
audited balance sheet that reflects the receipt by the Company of the gross
proceeds of the Public Offering, and, if the over-allotment option is exercised
prior to the filing of the Form 8-K, the proceeds received by the Company from
the exercise of the underwriters’ over-allotment option.
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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 $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 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;
provided, however, that any such reduction shall apply equally to all of the
Warrants and, provided further, that any reduction in the 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 (“Exercise
Period”)
commencing on the later of (i) the consummation by the Company of a merger,
capital stock exchange, asset acquisition, stock purchase or other similar
business combination, as described more fully in the Company’s Registration
Statement (a “Business
Combination”)
and
(ii) [●], 2008, and terminating at 5:00 p.m., New York City time on the earlier
to occur of (x) [●], 2011 or (y) the date fixed for redemption of the Warrants,
if any, as provided in Section 6 of this Agreement (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 Agreement shall cease at 5:00 p.m. New York City
time
on the Expiration Date. The Company in its sole discretion may extend the
duration of the Warrants by delaying the Expiration Date.
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) with
respect to any Founder Warrants, by surrendering such Founder 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 Founder
Warrants, multiplied by the difference between the Warrant Price and the Fair
Market Value (as defined below) by (y) the Fair Market Value. Solely for
purposes of this Section 3.3.1(b), the “Fair
Market Value”
shall
mean the average reported last sale price of the Common Stock for the five
trading days ending on the trading day prior to the date on which the Founder
Warrants are exercised.
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, she or it is entitled, registered in
such
name or names as may be directed by him, her or it, and if such Warrant shall
not have been exercised in full, a new countersigned Warrant for the number
of
shares as to which such Warrant shall not have been exercised. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Public Warrant and shall have no obligation
to
settle such Public Warrant exercise unless a registration statement under
the
Act with respect to the Common Stock is effective and a prospectus thereunder
relating to the securities to be issued is current, subject to the Company’s
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 Public Warrant is not effective under the Act, the holder of such Public
Warrant shall not be entitled to exercise such Warrant and such Warrant may
have
no value and expire worthless. In no event will the Company be required to
net
cash settle the Warrant exercise. Public Warrants may not be exercised by
any
registered holder in any state in which such exercise would be unlawful.
The
shares of Common Stock issuable upon exercise of Founder Warrants shall be
unregistered shares.
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3.3.3 Valid
Issuance.
All
shares of Common Stock issued upon the proper exercise or, if applicable,
surrender of a Warrant in conformity with this Agreement shall be validly
issued, fully paid and non-assessable.
3.3.4 Date
of Issuance.
Each
person or entity 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 or entity
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 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 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, (i) 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
(ii)
the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
4.4 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Sections 4.1 or 4.2 hereof or one
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.
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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, 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 Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the Company shall, upon such
exercise, round up or down to the nearest whole number the number of the 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.
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 into 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 the
Company’s request.
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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 shall not 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 by the Warrant Agent for any exchange or
registration of transfer of Warrants.
5.5 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and 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.
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 $0.01 per Warrant (“Redemption
Price”),
provided that the reported last sale 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. Notwithstanding anything herein
to
the contrary, no Founder Warrants shall be redeemable so long as such Founder
Warrant is held by Founder or one of its members as of the date of this
Agreement. The provisions of this Section 6.1 may not be modified, amended
or deleted without the prior written consent of SunTrust.
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants then redeemable,
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 such
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 to be redeemed may be exercised for cash 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 (the “Redemption
Date”).
On
and after the Redemption Date, the record holder of the Warrants shall have
no
further rights except to receive, upon surrender of such Warrants, the
Redemption Price.
Notwithstanding
anything to the contrary contained herein, the Company shall not call the
Warrants for redemption unless there is an effective registration statement
under the Act covering to the shares of Common Stock issuable upon exercise
of
the Warrants and a current prospectus is available throughout the 30-day
notice
of redemption period.
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7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights, to vote
or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnity or otherwise as they may in their
discretion impose (which terms 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 the Common Stock issuable upon exercise of the
Public Warrants, and it shall use its best efforts 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 and
to
maintain the effectiveness of such registration statement until the expiration
of the Public Warrants in accordance with the provisions of this Warrant
Agreement. Notwithstanding the foregoing, a Warrant may expire worthless
regardless of whether a registration statement is effective and a prospectus
thereunder is current under the Act with respect to the Common Stock issuable
upon exercise of the Warrants. In no event will the registered holder of a
Warrant be entitled to receive a net-cash settlement, shares of Common Stock
or
other consideration in lieu of physical settlement in shares of Common Stock,
regardless of whether the Company complies with this Section 7.4. The provisions
of this Section 7.4 may not be modified, amended or deleted without the
prior written consent of SunTrust.
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
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, her or its 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. 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 have its principal office in the Borough of
Manhattan, City and State of New York, and be authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. 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 on the part of the Company
or the Warrant Agent.
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 as set forth on Exhibit
B
hereto
and will reimburse the Warrant Agent upon demand for all expenditures that
the
Warrant Agent may reasonably incur in the execution of its duties
hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge and deliver, or cause to be
performed, executed, acknowledged and delivered, all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent
for the carrying out or performance 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 Chief Executive Officer, 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 non-assessable.
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 Common Stock
through the exercise of Warrants.
8.6 Trust
Account Waiver.
The
Warrant Agent has no right, title, interest or claim (“Claim”)
in or
to any monies in the account (the “Trust
Account”)
into
which (i) a portion of the proceeds of the Public Offering and (ii) the proceeds
of the sale of the Founder Warrants will be deposited as described in the
prospectus included in the Registration Statement, and hereby waives any
Claim
in or to any monies in the Trust Account it may have in the future, 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 delivered by hand or sent by registered or certified mail or overnight
courier service, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
0000
Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxx, Co-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 delivered by hand or sent by registered or certified mail or overnight
courier service, addressed (until another address is filed in writing by the
Warrant Agent with the Company), as follows:
9
Continental
Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with
a
copy in each case (which shall not constitute notice) to:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxx,
Esq.
and
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
and
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
0000
Xxxxxxxxx Xxxx, XX
Xxxxxxx,
XX 00000
Attn: Xxxxxx
X. Xxxxx
Any
notice, sent pursuant to this Warrant Agreement shall be effective, if delivered
by hand, upon receipt thereof by the party to whom it is addressed, if sent
by
overnight courier, on the next business day of the delivery to the courier
and,
if sent by registered or certified mail, on the third day after registration
or
certification thereof.
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 conflicts of law 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 or the United States District Court for
the
Southern District of New York, and irrevocably submits to such exclusive
jurisdiction. 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 corporation, other than the parties hereto and the
registered holders of the Warrants and, for the purposes of Sections 6.1, 6.4,
7.4 and 9.2 hereof, SunTrust, any right, remedy or claim under or by reason
of
this Warrant Agreement or of any covenant, condition, stipulation, promise
or
agreement hereof. SunTrust shall be deemed to be a third-party beneficiary
of
this Warrant Agreement with respect to Sections 6.1, 6.4, 7.4 and 9.2 hereof.
All covenants, conditions, stipulations, promises and agreements contained
in
this Warrant Agreement shall be for the sole and exclusive benefit of the
parties hereto (and SunTrust, with respect to the Sections 6.1, 6.4, 7.4 and
9.2
hereof) and their successors and assigns and of the registered holders of the
Warrants.
10
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, her or its Warrant for
inspection.
9.6 Counterparts;
Facsimile Signatures.
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 one and the same instrument.
Facsimile signatures shall constitute original signatures for all purposes
of
this Warrant Agreement.
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, including any amendment to
increase the Warrant Price or shorten the Exercise Period, other than in
accordance with Section 6 hereof, shall require the written consent of each
of
SunTrust 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
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. Signature page immediately
follows.)
11
IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
| Attest | SECURE AMERICA ACQUISITION CORPORATION | |
| |
|
|
| By: | ||
|
|
Name: C. Xxxxxx XxXxxxxx Title: Co-Chief Executive Officer and Chairman |
|
| Attest | CONTINENTAL
STOCK
TRANSFER & TRUST COMPANY |
|
| |
|
|
| By: | ||
|
|
Name: Xxxxxx
X. Xxxxxx
Title: Chairman
|
|
EXHIBIT
A
Form
of Public Warrant
EXHIBIT
B
Warrant
Agent Fees
