WARRANT DEED
Exhibit 4.8
This Deed is made as of 24 April 2006 between Cross Shore Acquisition Corporation, a company
incorporated under the laws of the State of Delaware, with its registered office at Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000 (the
“Company”), and Capita IRG (OffShore) Limited, a company incorporated under the laws of Jersey,
with its registered office at Xxxxxxxx Xxxxxxxx, Liberation Square, 0/0 Xxx Xxxxxxxxx, Xx. Helier,
Jersey (the “Warrant Agent”).
WHEREAS, pursuant to an offering circular dated on or around the date hereof (the “Offering
Circular”) the Company is engaged in an offering (the “Offering”) of Units (“Units”) comprised of
one share of common stock, par value $0.0001 per share, in the capital of the Company (the
“Shares”) and two warrants (the “Warrants”), each Warrant evidencing the right of the holder
thereof to purchase one Share for US$5.00, on the terms and subject to the conditions set forth in
the Offering Circular and subject to adjustment as described herein; and
WHEREAS the Company desires, for the benefit of the holders from time to time of the
Warrants, the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to
so act, in connection with the issue, 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
authorise the execution and delivery of this Deed.
NOW, THEREFORE: the Company and the Warrant Agent have executed as a Deed the following
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 Deed.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be issued in registered form only, shall be
in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and
shall be signed by, or bear the facsimile signature of, the chairman of the Company, any director
of the Company or the company secretary of the Company. 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 issue.
2.2 Registration.
2.2.1 Warrant Register. The Warrant Agent shall maintain books (the “Warrant
Register”) for the registration of original issue and the registration of transfer of the
Warrants. Upon the
initial issue 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.
2.2.2 Registered Holder. Prior to any Warrant being duly presented for registration of
transfer, the Company and the Warrant Agent may deem and treat the person in whose name such
Warrant shall be registered upon the Warrant Register (“registered holder”), as the absolute
owner of
such Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or
other writing on the Warrant Certificate made by anyone other than the Company or the Warrant
Agent),
for the purpose of any exercise thereof, and for all other purposes, and neither the Company
nor the
Warrant Agent shall be affected by any notice to the contrary.
2.3 Trading of Securities. The Shares and the Warrants comprising the Units will be
separately tradeable from the date on which the Shares and Warrants are admitted to trading on AIM,
a market operated by the London Stock Exchange plc (“AIM”) (the date on which trading commences
being the “Admission Date”).
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Warrant shall, when accompanied by its duly completed
exercise
notice, entitle the registered holder thereof, subject to the provisions of this Warrant Deed,
to purchase
from the Company the number of Shares stated therein, at the price of $5.00 per 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 Deed refers to the price per share at which Shares may be
purchased at the
time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at
any time
prior to the Expiration Date.
3.2 Duration of Warrants. A Warrant may only be exercised during the period (“Exercise
Period”):
3.2.1 commencing on the earlier of (i) the completion by the Company of a Qualified
Business Combination, and (ii) if the Company has completed a Business Combination but has not
completed a Qualified Business Combination by the Qualified Business Combination Deadline, the
Qualified Business Combination Deadline (each defined term in this paragraph as defined in the
Offering
Circular); and
3.2.2 Terminating at 5:00 p.m., New York City time on the earlier to occur of (i) the
fourth anniversary of the Admission Date and (ii) the date fixed for redemption of the
Warrants as
provided in Section 6 of this Deed (“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 Deed shall cease at the close of
business on the Expiration Date. The Company in its sole discretion may extend the Exercise
Period.
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3.3 Exercise of Warrants.
3.3.1 Payment. Subject to the provisions of the Warrants and this Warrant Deed, a
Warrant 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 relevant exercise form
(available from the Warrant Agent from time to time), duly executed, and (i) by paying in full, in
lawful money of the United States, in cash, banker’s cheque or good bank draft payable to the order
of the Company (or as otherwise agreed to by the Company), the Warrant Price for each Share 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 Shares, and the issue of the Share; or (ii) in the
event the Company has called the Warrants for redemption pursuant to Section 6 hereof only, the
registered holder may, if the registered holder so elects, exercise its Warrant, through a
“cashless exercise” in which event the Company shall issue to the registered holder the number of
Shares determined by;
X=Y*((A-B)/A)
where
X is the number of Shares to be issued to the registered holder on a cashless
exercise;
Y is the number of Shares underlying the Warrant being exercised;
A is
the Fair Market Value (defined below) of the Shares; and
B is the Warrant Price,
provided however, that in the event the holder of a Warrant would be entitled, upon such
“cashless exercise”, to receive a fractional interest in a share, the Company shall, upon such
exercise, round down to the nearest whole number the number of Shares to be issued to the
registered holder.
The “Fair Market Value” of the Shares shall mean: (i) if the Shares are listed on AIM, the average
of the reported last independent bid price of the Shares as reported by AIM for the ten (10)
trading days ending on the third business day preceding the date in question; or (ii) if the fair
market price of the Shares cannot be determined pursuant to sub-section (i) above, such price as
the board of directors of the Company shall determine, in good faith.
3.3.2. Issue 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 Shares to
which it is entitled, registered in such name or names as may be directed by it, and if such
Warrant shall not have been exercised in full, a 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 instruct the Warrant Agent to deliver any securities pursuant to the exercise of a
Warrant unless the Company shall, in its sole reasonable discretion, be satisfied that the
transfer procedures for purchasers and sellers have been followed, including, without limitation,
(i) its receipt of a written certification from the holder that it is a qualified institutional
buyer and understands that the Shares to be issued upon exercise of the Warrant have not been
registered under the Securities Act of 1933, as amended (the “Securities Act”) or (ii) supplying
an opinion of counsel that the Warrants and Shares issuable upon exercise are exempt from
registration under the Securities Act, and, in either case, (iii) agreeing that (x) such Shares
will be subject to certain restrictions on transfer, (y) a new holding period for the Shares
issued upon exchange of such Warrant, for the purposes of Rule 144 under the Securities Act, will
commence upon issue of such Shares
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and (z) its acquisition of Shares was not solicited by any form of general solicitation or general
advertising and that it has been given access to information sufficient to permit it to make an
informed decision as to whether to invest in the Shares. The Company may, in its sole discretion,
permit the exercise of the Warrants in certain limited circumstances, including with respect to the
Warrants held by certain of the Founding Shareholders (as defined in the Offering Circular), the
Warrants issued to the holders of a Unit purchase option for 1,100,000 Units issued by the Company
to Sunrise and their permitted assignees, dated on or about the date of this Deed, and the Warrants
held by such limited number of initial purchasers that are not qualified institutional buyers and
purchased Warrants in the Offering with the approval of the Company, in accordance with their terms
if the requirements of other exemptions under the Securities Act and other applicable laws can be
satisfied. 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 Issue. All Shares issued upon the proper exercise of a Warrant in
conformity with this Deed shall be validly issued, fully paid and non-assessable.
3.3.4 Date of Issue. Each person in whose name any such certificate evidencing
Shares is issued shall for all purposes be deemed to have become the holder of record of such
Shares on
the date on which such person’s name is entered into the register of members following the
surrender of
its Warrants(s) for exercise and payment of any Warrant Price having been made, irrespective
of the date
of delivery of such certificate, except that, if the date of such surrender and any payment is
a date when
the share 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 share
transfer
books are open.
4. Adjustments.
4.1 Share Dividends — Subdivisions. If after the date hereof, and subject to the
provisions of
Section 4.6 below, the number of outstanding Shares is increased by a share dividend payable
in Shares,
or by a subdivision of Shares, or other similar event, then, on the effective date of such
share dividend,
subdivision 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 issued Shares is decreased by a consolidation, combination, reverse
share split
or reclassification of Shares, or other similar event, then, on the effective date of such
consolidation,
combination, reverse share split, reclassification or similar event, the number of Shares
issuable on
exercise of each Warrant shall be decreased in proportion to such decrease in issued Shares.
4.3 Adjustments in Exercise Price. Whenever the number of Shares 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 purchasable upon the
exercise of the
Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the
number of
Shares so purchasable immediately thereafter.
4.4 Replacement of Securities upon Reorganisation, etc. In case of any
reclassification or
reorganisation of the issued Shares (other than a change covered by Section 4.1 or 4.2 hereof
or that
solely affects the par value of such Shares), or in the case of any merger, amalgamation 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
reorganisation of
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the outstanding Shares), 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 the Company immediately theretofore purchasable and receivable upon
the exercise of the rights represented thereby, the kind and amount of shares or other securities
or property (including cash) receivable upon such reclassification, reorganisation, merger,
amalgamation 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 Warrant(s) immediately
prior to such event; and if any reclassification also results in a change in Shares 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, reorganisations, mergers, amalgamations 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 to be issued upon exercise of a Warrant, the Company shall give written
notice thereof
to the Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the
increase or decrease, if any, in the number of Shares purchasable at such price upon the
exercise of a
Warrant, setting forth in reasonable detail the method of calculation and the facts upon which
such
calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or
4.4, then, in
any such event, the Company shall give written notice to the Warrant holder, at the last
address set forth
for such holder in the warrant register, of the record date or the effective date of the event.
Failure to give
such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6 No Fractional Shares. Notwithstanding any provision contained in this Warrant Deed
to
the contrary, the Company shall not issue factional 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 down to the nearest whole number the number of Shares 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
Deed.
However, the Company may at any time in its sole discretion make any change in the form of
Warrant
that the Company may reasonably deem appropriate and that does not affect the substance
thereof, and
any Warrant thereafter issued, 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 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.
5.2 Procedure for Surrender of Warrants. Subject to compliance with Section 3.3.2, the
Warrants may be surrendered to the Warrant Agent, together with a written request for exchange
or
transfer, and thereupon the Warrant Agent shall, subject to the Company’s satisfaction that,
in its sole
reasonable discretion, the transfer procedures for purchasers and sellers have been followed,
issue in
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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 unless the transfer is pursuant
to an effective registration statement under the Act or pursuant to an exemption from registration
under the Act provided by Rule 144, Rule 144A or Regulation S under the Act (subject to such
transferee making such representations in favour of the Company as the Company may deem advisable
to ensure that such transfer is conducted pursuant to such an exemption from, or in a transaction
not subject to, registration under the Act and in accordance with any applicable laws of state of
the U.S. and any other jurisdiction and, inter alia, agreement by the transferee to take such
securities subject to customary transfer restrictions and appropriate legends), and in each case in
accordance with applicable securities laws of each state of the U.S. and any other jurisdiction.
The Company may request an opinion of counsel reasonably satisfactory to the Company that such
transfer is to be effected in a transaction meeting the requirements of Regulation S under the Act
or is exempt from registration.
5.3 Fractional Warrants. The Warrant Agent shall not be required to effect any
registration
of transfer or exchange which will result in the issue 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. The Warrant Agent is hereby authorized to deliver, in
accordance
with the terms of this Deed, 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, all (and not less than all) of the
then
outstanding Warrants may be redeemed at the option of the Company with the prior written
consent of
Sunrise Securities Corp. (“Sunrise”), at any time during the Exercise Period, at the office of
the Warrant
Agent, upon the notice referred to in
Section 6.2., at the price of $0.0001 per Warrant
(“Redemption
Price”), provided that the last sales price of the Shares has been at least $8.50 per share,
on each of
twenty (20) trading days within any thirty (30) trading day period ending three business days
prior to the
date on which notice of redemption is given and the weekly trading volume for the Shares has
been at
least 550,000 Shares for each of the two calendar weeks before the 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 Sunrise.
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 thirty (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 Deed 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.
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6.4 Outstanding Warrants Only. The Company understands that the redemption rights
provided for by this Section 6 apply only to outstanding Warrants, To the extent a person holds
rights to purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption is met. The provisions of this Section 6.4
may not be modified, amended or deleted without the prior written consent of Sunrise.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1 No Rights as Shareholder. A Warrant does not entitle the registered holder thereof
to any
of the rights of a shareholder 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 shareholders in respect of the meetings of shareholders 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 Shares. The Company shall at all times reserve and keep available a
number of its authorised but unissued Shares that will be sufficient to permit the exercise in
full of all
outstanding Warrants issued pursuant to this Deed.
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 issue or
delivery
of Shares upon the exercise of Warrants, but the Company shall not be obligated to pay any
transfer taxes
in respect of the Warrants or such Shares.
8.2
Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to
it hereafter appointed, may resign its duties and be discharged from all further duties and
liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the
office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place
of the Warrant Agent. If the
Company shall fail to make such appointment within a period of thirty (30) 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 High Court of Justice in England 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 in good standing authorised to exercise the
functions of the Warrant Agent pursuant to this Deed and shall be subject to supervision or
examination by appropriate regulatory 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
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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 Shares 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 Deed 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 Deed.
8.4 Liability of Warrant Agent.
8.4.1
Reliance on Company Statement. Whenever in the performance of its duties
under this Warrant Deed, 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 chairman or deputy chairman
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 Deed.
8.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its own
negligence, fraud, willful misconduct or bad faith provided that the aggregate liability of
the Warrant
Agent will be limited to the lesser of £1,000,000 (one million pounds) or an amount equal to
ten (10)
times the total annual fee payable to the Warrant Agent under the registrar agreement between
the
Company and the Warrant Agent dated on or about the date of this Deed. 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 Deed except as a result of the Warrant Agent’s negligence, fraud, wilful misconduct or
bad faith
8.4.3 Exclusions. The Warrant Agent shall have no responsibility with respect to the
validity of this Deed or with respect to the validity or execution of any Warrant; nor shall
it be responsible
for any breach by the Company of any covenant or condition contained in this Deed or in any
Warrant;
nor shall it be responsible to make any adjustments required under the provisions of Section 4
hereof or
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be 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 authorisation or reservation of any Shares
to be issued pursuant to this Deed or any Warrant or as to whether any Shares 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 Deed 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 through the exercise of Warrants.
9. Miscellaneous Provisions.
9.1 Successors. All the covenants and provisions of this Deed 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 authorised by this Deed to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail
or private courier service within five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Company with the Warrant Agent), as
follows:
Cross Shore Acquisition Corporation
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxxxx
Xxxxxxxx 00000
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxxxx
Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Any notice, statement or demand authorised by this Deed to be given or made by the holder of
any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or private courier service
within five days after deposit of such notice, postage prepaid, addressed (until another address
is filed in writing by the Warrant Agent with the Company), as follows:
Capita IRG (Offshore) Limited
Xxxxxxxx Xxxxxxxx
Liberation Square
0/0 Xxx Xxxxxxxxx
Xx. Helier
Jersey
Xxxxxxxx Xxxxxxxx
Liberation Square
0/0 Xxx Xxxxxxxxx
Xx. Helier
Jersey
Attn: Compliance Department
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A copy of any notice hereunder shall be sent to (but shall not constitute notice):
Sunrise Securities Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
and:
Weil, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx, XX0X0XX
Xxxxxx Xxxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx, XX0X0XX
Xxxxxx Xxxxxxx
Attn: Xxxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
and:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx (London) LLP.
00 Xxxx Xxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
00 Xxxx Xxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Attn: Xxxx Xxxxxx
9.3 Applicable law. The validity, interpretation, and performance of this Deed and of
the
Warrants shall be governed in all respects by the laws of England & Wales, 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 Deed shall be brought and enforced in the courts of England,
and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company
hereby
waives any objection to such exclusive jurisdiction and to such courts representing 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 Deed. Nothing in this Deed 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 and 9.2 hereof, Sunrise, any right,
remedy, or claim
under or by reason of this Warrant Deed or of any covenant, condition, stipulation,
promise, or agreement hereof. Sunrise shall be deemed to be a third-party beneficiary of this Deed with respect to
Sections 6.1,
6.4 and 9.2 hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this
Warrant Deed shall be for the sole and exclusive benefit of the parties hereto (and Sunrise
with respect to
the Sections 6.1, 6.4 and 9.2 hereof) and their successors and assigns and of the registered
holders of the
Warrants.
10
9.5 Founder. The term Founder means CSA II, LLC, Elrnwood Capital, LLC or entities
controlled by such persons.
9.6 Examination of the Warrant Deed. A copy of this Deed shall be available at all
reasonable times at the office of the Warrant Agent, 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.
9.7 Counterparts. This Deed 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.
9.8 Effect of Headings. The Section headings herein are for convenience only and are
not
part of this Warrant Deed and shall not affect the interpretation thereof.
9.9 Waiver of Claims. Notwithstanding any other provision of this Warrant Deed, the
Warrant Agent confirms its understanding that the Company has established a trust fund (the
“Trust
Fund”) relating to the Shares and Warrants. The Warrant Agent acknowledges that the Trust Fund
will
exist for the benefit of the Company’s New Shareholders (as defined in the Offering Circular)
and that
monies from the Trust Fund may be disbursed only to the New Shareholders in the event of the
liquidation of the Company or in certain other events as more fully described in the Offering
Circular.
The Warrant Agent agrees that neither it nor any of its affiliates have or will have any
claim, right, title or
interest of any kind in or to any monies in the Trust Fund (a “Claim”) and the Warrant Agent
and its
affiliates hereby waive any Claim against the Trust Fund that it or any of them may have now
or in the
future as a result of or arising out of this Warrant Deed and will not seek recourse against
the Trust Fund
for any reason whatsoever, including in respect of the Company’s indemnification obligations
under this
Warrant Deed.
11
IN WITNESS WHEREOF, this Deed has been duly executed by the parties hereto as of the day and
year first above written.
| Attest | CROSS SHORE ACQUISITION CORPORATION | |||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | CEO | |||||
| CAPITA IRG (OFFSHORE) LIMITED | ||||||
Attest |
||||||
/s/ Alex Horuby
|
By: | /s/ Xxxxxxx X’Xxxxx | ||||
Alex Horuby
|
Name: | Xxxxxxx X’Xxxxx
|
||||
Corporate Administrator
|
Title: | Director | ||||
