FORM OF WARRANT AGREEMENT
Exhibit
4.4
This
Warrant Agreement (the “Agreement”)
made
as of _____, 2008, between Specialty Metals Group Indium Corp., a Delaware
corporation, with offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxxxx 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 undertaken a public offering (the “Public
Offering”)
of
units of the Company (the “Units”),
each
Unit consisting of one share of common stock, par value $.001 per share, of
the
Company (the “Common
Stock”)
and
one warrant exercisable for one share of Common Stock, and in connection
therewith, has determined to issue and deliver (i) up to 12,650,000 Warrants
(the “Public
Warrants”)
to the
public investors and (ii) up to 550,000 Warrants to Maxim Group LLC
(“Maxim”)
or its
designees (the “Representative’s
Warrants”
and,
together with the Public Warrants, the “Warrants”),
in
each case subject to adjustments as described herein;
WHEREAS,
the Company has filed, with the Securities and Exchange Commission (the
“Commission”),
a
registration statement, No. 333-________, on Form S-1 (the “Registration
Statement”)
for
the registration, under the Securities Act of 1933, as amended (the
“Act”),
of,
among other securities, the Public Warrants and the Representative’s Warrants
and the Common Stock issuable upon exercise of the Public Warrants and the
Representative’s Warrants;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption, exercise and cancellation of
the
Warrants;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant Agent and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the legally valid and binding
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.
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2.
Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Warrant attached hereto as Exhibit
A,
the
provisions of which are incorporated herein, and shall be signed by, or bear
the
facsimile signature of, (i) the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) 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 Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect
as
if he or she had not ceased to be such at the date of issuance.
2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Warrant Agreement,
a Warrant shall be invalid and of no effect and may not be exercised by the
holder thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant
Register”),
for
the registration of the original issuance and registration of transfers of
the
Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall
issue and register the Warrants in the names of the respective holders thereof
in such denominations and otherwise in accordance with instructions delivered
to
the Warrant Agent by the Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“Registered
Holder”),
as
the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the warrant
certificate made by anyone other than the Company or the Warrant Agent), for
the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4 Detachability
of Warrants.
The
securities comprising the Units may trade separately beginning on the
90th
day
after the effective date of the registration statement unless Maxim determines
that an earlier date is acceptable, based upon its assessment of the relative
strengths of the securities markets and small capitalization companies in
general and the trading pattern of, and demand for, our securities in
particular. In no event will Maxim permit separate trading of the common stock
and warrants until the business day following the earlier to occur of (i) the
expiration or termination of the underwriters’ over-allotment option or (ii) its
exercise in full (the “Detachment
Date”).
2.5 The
Representative’s Warrants.
The
Representative’s Warrants shall have the same terms and be in the same form as
the Public Warrants except (i) with respect to the Warrant Price as set forth
below in Section 3.1 hereof and (ii) the Representative’s Warrants may be
exercised on cashless basis.
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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 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 Representative’s Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Representative’s Warrant and of this Agreement, to purchase from the
Company the number of shares of Common Stock stated therein, at the price of
$6.60 per whole share, subject to the adjustments provided in Section 4 hereof
and in the last sentence of this Section 3.1. The term “Warrant
Price”
as
used
in this Agreement refers to the price per share at which Common Stock may be
purchased at the time a Warrant is exercised. The Company, in its sole
discretion, may lower the Warrant Price at any time prior to the Expiration
Date
(as defined below); provided, however, that any change in the Warrant Price
must
apply equally to all of the Warrants, and provided further that any amendment
to
the term of the Representative’s Warrants shall be subject to any limitations
and conditions that may be imposed by FINRA Corporate Finance Rule 2710, and
provided further that any reduction in Warrant Price shall remain in effect
for
at least twenty (20) business days.
3.2 Duration
of Warrants.
Except
as set forth in this Section 3.2, a Warrant may be exercised only during the
period (“Exercise
Period”)
commencing immediately upon the effectiveness of the Registration Statement,
and
terminating at 5:00 p.m., New York City time, on the earlier to occur of (i)
_______, 2011 and (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 any such
extension of the duration of the Warrants shall apply equally to all of the
Warrants, except that any amendment to the terms of the Representative’s
Warrants shall be subject to any limitations and conditions that may be imposed
by FINRA Corporate Finance Rule 2710. Should the Company wish to extend the
Expiration Date of the Warrants, the Company shall provide at least twenty
(20)
days advance notice to the American Stock Exchange (or the principal trading
market for the Warrants) of such extension.
Notwithstanding
the foregoing, a Warrant can expire unexercised regardless of whether a
registration statement is current under the Act with respect to the Common
Stock
issuable upon exercise 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,
certified check or bank draft payable to the order of the Company (or as
otherwise agreed to by the Company), the Warrant Price for each whole 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.
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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 representing 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.
3.3.3 Limitations.
Notwithstanding the foregoing, the Company shall not be obligated to deliver
any
shares of Common Stock pursuant to the exercise of a Warrant and shall have
no
obligation to honor any Warrant exercise unless a registration statement under
the Act with respect to the shares of Common Stock underlying a Warrant is
effective and a current Prospectus is on file with the Commission. In the event
that a registration statement with respect to the shares of Common Stock
underlying a Warrant is not effective under the Act or a current Prospectus
in
not on file with the Commission, the holder of such Warrant shall not be
entitled to exercise such Warrant. Notwithstanding anything to the contrary
in
this Agreement, under no circumstances will the Company be required to net
cash
settle the exercise of the Warrants. Warrants may not be exercised by, or shares
of Common Stock underlying the Warrants issued to, any registered holder in
any
jurisdictions in which such exercise or issuance would be unlawful. For the
avoidance of doubt, as a result of this Section 3.3.3, any or all of the
Warrants may expire unexercised. In
no
event shall the registered holder of a Warrant be entitled to receive any
monetary damages if the shares of Common Stock underlying the Warrants have
not
been registered by the Company pursuant to an effective registration statement
or if a current prospectus is not on file with the Commission, provided the
Company has fulfilled its obligation under section 7.4 hereof to use its best
efforts to effect such registration and ensure a current prospectus is on file
with the Commission.
3.3.4 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.
3.3.5 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 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.
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4. Adjustments.
4.1 Stock
Dividends - Split-Ups.
If, at
any time during the Exercise Period, 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 Extraordinary
Dividends.
If the
Company, at any time during the Exercise Period, shall pay a dividend or make
a
distribution in cash, securities or other assets to the holders of Common Stock
(or other shares of the Company’s capital stock into which the Warrants are
convertible), other than (i) as described in Sections 4.1, 4.3 or 4.5, (ii)
regular quarterly or other periodic dividends, (iii) in connection with the
Company’s liquidation and the distribution of its assets (any such non-excluded
event being referred to herein as an “Extraordinary
Dividend”),
then
the Warrant Price shall be decreased, effective immediately after the effective
date of such Extraordinary Dividend, by the amount of cash and/or the fair
market value (as determined by the Company’s Board of Directors, in good faith)
of any securities or other assets paid on each share of Common Stock in respect
of such Extraordinary Dividend.
4.3 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.
4.4 Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Sections 4.1, 4.2 and 4.3 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.
4.5 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, 4.2 or 4.3 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, 4.2 or 4.3, then
such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and
this Section 4.5. The provisions of this Section 4.5 shall similarly
apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
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4.6 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, 4.4 or 4.5 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.
4.7 No
Fractional Shares.
Notwithstanding any provision contained in this Agreement to the contrary,
the
Company shall not issue fractional shares upon exercise of Warrants. If, by
reason of any adjustment made pursuant to this Section 4, the holder of any
Warrant would be entitled, upon the exercise of such Warrant, to receive a
fractional interest in a share, the Company shall, upon such exercise, round
up
to the nearest whole number the number of the shares of Common Stock to be
issued to the Warrant holder.
4.8 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 Transfer
of Warrants.
Prior
to the Detachment Date, the Public Warrants may be transferred or exchanged
only
together with the Unit in which such Warrant is included, and only for the
purpose of effecting, or in conjunction with, a transfer or exchange of such
Unit. Furthermore, each transfer of a Public Unit on the register relating
to
such Units shall operate also to transfer the Warrants included in such Unit.
From and after the Detachment Date this Section 5.1 will have no further force
and effect.
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5.2 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.
5.3 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and, thereupon, the Warrant Agent shall issue
in exchange therefor one or more new Warrants as requested by the registered
holder of the Warrants so surrendered, representing an equal aggregate number
of
Warrants; provided, however, that in the event a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and shall 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 hereof, at a redemption price of
$.01 per Warrant (the “Redemption
Price”),
provided that (i) the last sales price of the Common Stock has been equal to
or
greater than $9.00 per share (the “Trigger
Price”)
for
any twenty (20) trading days within a thirty (30) trading day period ending
on
the third business day prior to the date on which notice of redemption is given
and (ii) the Public Warrants and the Representative’s Warrants and the shares of
Common Stock underlying such Warrants are covered by an effective registration
statement and a current prospectus from the beginning of the measurement period
through the date fixed for redemption. The provisions of this Section 6.1
may not be modified, amended or deleted without the prior written consent of
the
Representative.
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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 (the “Redemption
Date”),
which
shall be prior to the expiration of the Warrants. 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
Warrant Register. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date sent, whether or
not
the registered holder received such notice. In the event of any adjustment
to
the Warrant Price or the number of shares of Common Stock issuable on exercise
of each Warrant as provided in Section 4, a proportional adjustment shall be
made to the Trigger Price.
6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Warrant
Agreement at any time after notice of redemption shall have been given by the
Company pursuant to Section 6.2 hereof and prior to the time and date fixed
for redemption. On and after the redemption date, the record holder of the
Warrants shall have no further rights except to receive, upon surrender of
the
Warrants, the Redemption Price.
6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this
Section 6 apply only to outstanding Warrants. To the extent a person holds
rights to purchase Warrants, such purchase rights shall not be extinguished
by
redemption. However, once such purchase rights are exercised, the Company may
redeem the Warrants issued upon such exercise, provided that the criteria for
redemption are met. The provisions of this Section 6.4 may not be modified,
amended or deleted without the prior written consent of the
Representative.
6.5 No
Other Rights to Cash Payment.
Except
for a redemption in accordance with this Section 6, no holder of any Warrant
shall be entitled to any cash payment whatsoever from the Company in connection
with the ownership, exercise or surrender of any Warrant under this Agreement,
regardless of whether a registration statement is current under the Act with
respect to the Common Stock issuable upon exercise of the Warrants.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
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7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnity or otherwise as they may in their
discretion impose (which 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
Agreement.
7.4 Registration
of Common Stock.
The
Company agrees that, prior to the commencement of the Exercise Period, it shall
file with the 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 Public Warrants and the Representative’s Warrants were
initially offered by the Company, the Common Stock issuable upon exercise of
the
Public Warrants and the Representative’s 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, to maintain the effectiveness of such
registration statement and to ensure that a current prospectus is on file with
the Commission until the expiration or redemption of the Warrants in accordance
with the provisions of this Agreement; provided, however, that the Company
shall
not be obligated to deliver shares of Common Stock issuable upon exercise of
the
Warrants, and shall not have penalties nor be liable to the Warrant holder
for
failure to deliver shares, if a registration statement is not effective or
a
current prospectus is not on file with the Commission at the time of exercise
of
the Warrant by a holder. In addition, the Company agrees to use its reasonable
efforts to register such securities under the blue sky laws of the states of
residence of the exercising warrant holders to the extent an exemption is not
available. The provisions of this Section 7.4 may not be modified, amended
or deleted without the prior written consent of the Representative.
7.5 Delivery
of Prospectus or Notice.
Upon
the exercise of any Warrant, if the Company requests, the Warrant Agent shall
deliver to the holder of such Warrant, prior to or concurrently with the
delivery of the shares of Common Stock issuable upon such exercise, in
accordance with the Company’s request, either (i) a prospectus relating to the
shares of Common Stock deliverable upon exercise of the Warrants and complying
in all material respects with the Act or (ii) the notice referred to in Rule
173
under the Act.
8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will, from time to time, promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
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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 thirty (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.
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 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.
11
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge and deliver, or cause to be
performed, executed, acknowledged and delivered, all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever, in the performance of its duties under this 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, Chairman
of
the Board of Directors or President 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 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 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 Warrant Agreement
and agrees to perform the same upon the terms and conditions herein set forth
and, among other things, shall account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase of shares of the Company’s
Common Stock through the exercise of Warrants.
9. Miscellaneous
Provisions.
12
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, consent or request to be given in connection with any of the terms
or
provisions of this Agreement shall be in writing and shall be sent express
mail
or similar overnight courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
If
to the
Company, to:
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx
If
to the Warrant Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Compliance Department
with
a
copy in each case to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
and
Xxxxxxxxxx
Xxxxxxx PC
00
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxxx, Esq.
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. XxXxxx
Any
notice, sent pursuant to this 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.
13
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 the conflict of laws principles thereof. The Company and the
Warrant Agent each 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 jurisdiction shall be exclusive. The Company and the Warrant
Agent each 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 or the Warrant Agent 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 or the Warrant Agent in any action, proceeding or
claim.
9.4 Persons
Having Rights under this Warrant 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 6.1, 6.4, 7.4,
9.2 and 9.8 hereof, the Representative, any right, remedy or claim under or
by
reason of this Agreement or of any covenant, condition, stipulation, promise
or
agreement hereof. the Representative shall be deemed to be a third-party
beneficiary of this Agreement with respect to Sections 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 the Representative, with respect to the Sections
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 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, her or its Warrant for
inspection.
9.6 Counterparts;
Facsimile Signatures.
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 one and the same instrument. Facsimile
signatures shall constitute original signatures for all purposes of this Warrant
Agreement. Facsimile signatures shall constitute original signatures for all
purposes of this 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
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, shall require the
written consent of each of the Representative and the registered holders of
a
majority of the then outstanding Warrants. Notwithstanding the foregoing, the
Company may lower the Warrant Price or extend the duration of the Exercise
Period in accordance with Sections 3.1 and 3.2, respectively, without such
consent.
14
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 this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
15
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
|
Attest
|
|||
|
___________________________
|
By: | ||
|
Name:
Xxxxx X. Xxxxxxxx
Title:
President
|
|
Attest
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
||
|
___________________________
|
By: | ||
|
Name:
Title:
|
16
EXHIBIT
A
Form
of Public Warrant
17
EXHIBIT
B
Warrant
Agent Fees
18
