WARRANT AGREEMENT
Agreement made as of , 2005 between Key Hospitality Acquisition
Corporation, a Delaware corporation, with offices at 0000 Xxxxxxxx, Xxxxx 000,
Xxx Xxxx, XX 00000 ("Company"), and Continental Stock Transfer & Trust Company,
a New York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public
Offering") of Units ("Units") and, in connection therewith, has determined to
issue and deliver up to 13,800,000 Warrants ("Public Warrants") to the investors
in the Public Offering, and (ii) 600,000 Warrants to Maxim Group LLC ("Maxim")
or its designees ("Representative's Warrants" and, together with the Public
Warrants, the "Warrants"), each of such Public Warrants evidencing the right of
the holder thereof to purchase one share of common stock, par value $.001 per
share, of the Company ("Common Stock") for $6.00, subject to adjustment as
described herein; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement, File No. 333-_________ on Form S-1 (as the
same may be amended from time to time, the "Registration Statement") for the
registration, under the Securities Act of 1933, as amended ("Act") of, among
other securities, the Warrants and the Common Stock issuable upon exercise of
the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each 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 or President and
Treasurer, Secretary or Assistant Secretary of the Company and shall bear a
facsimile of the Company's seal. In the event the person whose facsimile
signature has been placed upon any Warrant shall have ceased to serve in the
capacity in which such person signed the Warrant before such Warrant is issued,
it may be issued with the same effect as if he or she had not ceased to be such
at the date of issuance.
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2.2 Effect of Countersignature. Unless and until countersigned
by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and
of no effect and may not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall
maintain books ("Warrant Register"), for the registration of original issuance
and the registration of transfer of the Warrants. Upon the initial issuance of
the Warrants, the Warrant Agent shall issue and register the Warrants in the
names of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2 Registered Holder. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register ("registered holder"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.4 Detachability of Warrants. The securities comprising the
Units will not be separately transferable until 90 days after the date hereof
unless Maxim informs the Company of its decision to allow earlier separate
trading, but in no event will Maxim allow separate trading of the securities
comprising the Units until the Company files a Current Report on Form 8-K which
includes an audited balance sheet reflecting the receipt by the Company of the
gross proceeds of the Public Offering including the proceeds received by the
Company from the exercise of the Underwriter's over-allotment option, if the
over-allotment option is exercised prior to the filing of the Form 8-K.
2.5 Warrants and Representative's Warrants. The
Representative's Warrants shall have the same terms and be in the same form as
the Public Warrants except with respect to the Warrant Price as set forth below
in Section 3.1.
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Public Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Public Warrant and of this Warrant Agreement,
to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $6.00 per whole share, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this Section 3.1. Each
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 Warrant Agreement, to purchase from the
Company the number of shares of Common Stock stated therein, at the price of
$7.50 per whole share, subject to the adjustments provided in Section 4 hereof
and in the last sentence of this Section 3.1. The term "Warrant Price" as used
in this Warrant Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised. The Company in its sole
discretion may lower the Warrant Price at any time prior to the Expiration Date.
3.2 Duration of Warrants. A Warrant may be exercised only
during the period ("Exercise Period") commencing on the later of the
consummation by the Company of a merger, capital stock exchange, asset
acquisition or other similar business combination ("Business Combination") (as
described more fully in the Company's Registration Statement) or , 2006
and terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
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, 2009 or (ii) the date fixed for redemption of the Warrants as
provided in Section 6 of this Agreement ("Expiration Date"). Except with respect
to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date. The
Company in its sole discretion may extend the duration of the Warrants by
delaying the Expiration Date.
3.3 Exercise of Warrants.
3.3.1 Payment. Subject to the provisions of the
Warrant and this Warrant Agreement, a Warrant, when countersigned by the Warrant
Agent, may be exercised by the registered holder thereof by surrendering it, at
the office of the Warrant Agent, or at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the
subscription form, as set forth in the Warrant, duly executed, and by paying in
full, in lawful money of the United States, in cash, good certified check or
good bank draft payable to the order of the Company (or as otherwise agreed to
by the Company), the Warrant Price for each full share of Common Stock as to
which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for the
Common Stock, and the issuance of the Common Stock.
3.3.2 Issuance of Certificates. As soon as
practicable after the exercise of any Warrant and the clearance of the funds in
payment of the Warrant Price, the Company shall issue to the registered holder
of such Warrant a certificate or certificates for the number of full shares of
Common Stock to which he is entitled, registered in such name or names as may be
directed by him, her or it, and if such Warrant shall not have been exercised in
full, a new countersigned Warrant for the number of shares as to which such
Warrant shall not have been exercised. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant unless (i) a registration statement under the Act with
respect to the Common Stock is effective or (ii) in the opinion of counsel to
the Company, the exercise of the Warrants is exempt from the registration
requirements of the Act and such securities are qualified for sale or exempt
from qualification under applicable securities laws of the states or other
jurisdictions in which the registered holders reside. Warrants may not be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful.
3.3.3 Valid Issuance. All shares of Common Stock
issued upon the proper exercise of a Warrant in conformity with this Agreement
shall be validly issued, fully paid and nonassessable.
3.3.4 Date of Issuance. Each person in whose name any
such certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
3.3.5 Warrant Solicitation and Warrant Solicitation
Fee.
(a) The Company has engaged Maxim, on an
exclusive basis, as its agent for the solicitation of the exercise of the
Warrants. The Company, at its cost, will: (i) assist Maxim with respect to such
solicitation, if requested by Maxim, and (ii) provide Maxim, and direct the
Company's transfer agent and the Warrant Agent to deliver to Maxim, lists of the
record and, to the extent known, beneficial owners of the Company's Warrants.
The Company hereby instructs the Warrant Agent to cooperate with Maxim in every
respect in connection with Maxim's solicitation activities, including, but not
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limited to, providing to Maxim, at the Company's cost, a list of record and
beneficial holders of the Warrants and circulating a prospectus or offering
circular disclosing the compensation arrangements referenced in Section 3.3.5(b)
below to holders of the Warrants at the time of exercise of the Warrants. In
addition to the conditions set forth in Section 3.3.5(b), Maxim shall accept
payment of the warrant solicitation fee provided in Section 3.3.5(b) only if it
has provided services to the Company in connection with the exercise of the
Warrants and only to the extent that an investor who exercises his Warrants
specifically designates, in writing, that Maxim solicited his exercise. In
addition to soliciting, either orally or in writing, the exercise of Warrants by
a Warrant holder, such services may also include disseminating information,
either orally or in writing, to Warrant holders about the Company or the market
for the Company's securities, or assisting in the processing of the exercise of
Warrants.
(b) In each instance in which a Warrant is
exercised, the Warrant Agent shall promptly give written notice of such exercise
to the Company and Maxim ("Warrant Agent's Exercise Notice"). If, upon the
exercise of any Warrant more than one year from the effective date of the
Registration Statement, (i) the market price of the Company's Common Stock is
greater than the Warrant Price, (ii) disclosure of compensation arrangements
between the Company and Maxim with respect to the solicitation of the exercise
of the Warrants was made both at the time of the Public Offering and at the time
of exercise (by delivery of the Prospectus or as otherwise required by
applicable law, rule or regulation), (iii) the holder of the Warrant confirms in
writing that the exercise of the Warrant was solicited by Maxim, (iv) the
Warrant was not held in a discretionary account, and (v) the solicitation of the
exercise of the Warrant was not in violation of Regulation M (as such rule or
any successor rule may be in effect as of such time of exercise) promulgated
under the Securities Exchange Act of 1934, as amended, then the Warrant Agent,
simultaneously with the distribution of the Common Stock underlying the Warrants
so exercised in accordance with the instructions from the Company following
receipt of the proceeds to the Company received upon exercise of such
Warrant(s), shall, on behalf of the Company, pay a fee of 3% of the Warrant
Price to Maxim, provided that Maxim delivers to the Warrant Agent within ten
(10) business days from the date on which Maxim has received the Warrant Agent's
Exercise Notice, a certificate that the conditions set forth in the preceding
clauses (iii), (iv) and (v) have been satisfied. Notwithstanding the foregoing,
no fee will be paid to Maxim with respect to the exercise by the Underwriters or
their affiliates or the Company's officers or directors of Warrants purchased by
it or them and still held by them for its or their own account. Maxim and the
Company may at any time during business hours, examine the records of the
Warrant Agent, including its ledger of original Warrant certificates returned to
the Warrant Agent upon exercise of Warrants.
(c) The provisions of this Section 3.3.5 may
not be modified, amended or deleted without the prior written consent of Maxim.
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,
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reclassification or similar event, the number of shares of Common Stock issuable
on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares of Common Stock.
4.3 Adjustments in Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of the Warrants is
adjusted, as provided in Section 4.1 and 4.2 above, the Warrant Price shall be
adjusted (to the nearest cent) by multiplying such Warrant Price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be the
number of shares of Common Stock purchasable upon the exercise of the Warrants
immediately prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately thereafter.
4.4 Replacement of Securities upon Reorganization, etc. In
case of any reclassification or reorganization of the outstanding shares of
Common Stock (other than a change covered by Section 4.1 or 4.2 hereof or that
solely affects the par value of such shares of Common Stock), or in the case of
any merger or consolidation of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, 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 Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 Notices of Changes in Warrant. Upon every adjustment of
the Warrant Price or the number of shares issuable 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 Agreement to the contrary, the Company shall not issue
fractional shares upon exercise of Warrants. If, by reason of any adjustment
made pursuant to this Section 4, the holder of any Warrant would be entitled,
upon the exercise of such Warrant, to receive a fractional interest in a share,
the Company shall, upon such exercise, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant holder.
4.7 Form of Warrant. The 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
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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 upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be cancelled by the
Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be
surrendered to the Warrant Agent, together with a written request for exchange
or transfer, and thereupon the Warrant Agent shall issue in exchange therefor
one or more new Warrants as requested by the registered holder of the Warrants
so surrendered, representing an equal aggregate number of Warrants; provided,
however, that in the event that a Warrant surrendered for transfer bears a
restrictive legend, the Warrant Agent shall not cancel such Warrant and issue
new Warrants in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Company stating that such transfer may be made and
indicating whether the new Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The Warrant Agent shall not be
required to effect any registration of transfer or exchange which will result in
the issuance of a warrant certificate for a fraction of a warrant.
5.4 Service Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5 Warrant Execution and Countersignature. The Warrant Agent
is hereby authorized to countersign and to deliver, in accordance with the terms
of this Agreement, the Warrants required to be issued pursuant to the provisions
of this Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
6. Redemption.
6.1 Redemption. Subject to Section 6.4 hereof, not less than
all of the outstanding Warrants may be redeemed, at the option of the Company,
at any time after they become exercisable and prior to their expiration, at the
office of the Warrant Agent, upon the notice referred to in Section 6.2., at the
price of $.01 per Warrant ("Redemption Price"), provided that the last sales
price of the Common Stock has been at least $11.50 per share, on each of twenty
(20) trading days within any thirty (30) trading day period ending on the third
business day prior to the date on which notice of redemption is given. The
provisions of this Section 6.1 may not be modified, amended or deleted without
the prior written consent of Maxim.
6.2 Date Fixed for, and Notice of, Redemption. In the event
the Company shall elect to redeem all of the Warrants, the Company shall fix a
date for the redemption. Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than 30 days prior to the date
fixed for redemption to the registered holders of the Warrants to be redeemed at
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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 in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2. hereof and prior to the time and date fixed for redemption. On and after
the redemption date, the record holder of the Warrants shall have no further
rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Outstanding Warrants Only. The Company understands that
the redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. 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 Maxim.
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 shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor, and date as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 Reservation of Common Stock. The Company shall at all
times reserve and keep available a number of its authorized but unissued shares
of Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 Registration of Common Stock. The Company agrees that
prior to the commencement of the Exercise Period, it shall file with the
Securities and Exchange Commission a post-effective amendment to the
Registration Statement, or a new registration statement, for the registration,
under the Act, of, and it shall take such action as is necessary to qualify for
sale, in those states in which the Warrants were initially offered by the
Company, the Common Stock issuable upon exercise of the Warrants. In either
case, the Company will use its best efforts to cause the same to become
effective and to maintain the effectiveness of such registration statement until
the expiration of the Warrants in accordance with the provisions of this
Agreement. The provisions of this Section 7.4 may not be modified, amended or
deleted without the prior written consent of Maxim.
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
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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 30 days after it has been notified in writing of such resignation or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for the
County of New York for the appointment of a successor Warrant Agent at the
Company's cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws of
the State of New York, in good standing and having its principal office in the
Borough of Manhattan, City and State of New York, and authorized under such laws
to exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant Agent shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2 Notice of Successor Warrant Agent. In the event
a successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such appointment.
8.2.3 Merger or Consolidation of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 Fees and Expenses of Warrant Agent.
8.3.1 Remuneration. The Company agrees to pay the
Warrant Agent the fees set forth on Exhibit A hereto for its services as Warrant
Agent hereunder and will reimburse the Warrant Agent upon demand for all
documented expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2 Further Assurances. The Company agrees to
perform, execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
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8.4 Liability of Warrant Agent.
8.4.1 Reliance on Company Statement. Whenever in the
performance of its duties under this Warrant Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
statement signed by the President or Chairman of the Board of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions
of this Agreement.
8.4.2 Indemnity. The Warrant Agent shall be liable
hereunder only for its own negligence, willful misconduct or bad faith. The
Company agrees to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3 Exclusions. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 Acceptance of Agency. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
9. Miscellaneous Provisions.
9.1 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns.
9.2 Notices. Any notice, statement or demand authorized by
this Warrant Agreement to be given or made by the Warrant Agent or by the holder
of any Warrant to or on the Company shall be sufficiently given when so
delivered if by hand, overnight delivery or facsimile transmission (followed by
delivery by regular mail) 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:
Key Hospitality Acquisition Corporation
0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Chairman
Fax No.: __________________
9
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service 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:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
Fax No.: __________________
with a copy in each case to:
Ellenoff Xxxxxxxx & Schole LLP
000 Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
and
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
and
Maxim Group LLC
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
9.3 Applicable law. The validity, interpretation, and
performance of this Agreement and of the Warrants shall be governed in all
respects by the laws of the State of New York, without giving effect to conflict
of laws. The Company hereby agrees that any action, proceeding or claim against
it arising out of or relating in any way to this Agreement shall be brought and
enforced in the courts of the State of New York located in New York County 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 hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenience forum. Any such process or summons to be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 9.2 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim.
9.4 Persons Having Rights under this Agreement. Nothing in
this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
10
to, any person or entity other than the parties hereto and the registered
holders of the Warrants (who shall, for all purposes hereunder, be deemed third
party beneficiaries of this Agreement) and, for the purposes of Sections 3.3.5,
6.1, 6.4, 7.4 and 9.2 hereof, Maxim, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. It is specifically agreed that Maxim shall be
deemed to be a third-party beneficiary of this Agreement with respect to
Sections 3.3.5, 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 Maxim with
respect to the Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2 hereof) and their
successors and assigns and of the registered holders of the Warrants.
9.5 Examination of the Warrant Agreement. A copy of this
Agreement shall be available at all reasonable times at the office of the
Warrant Agent in the Borough of Manhattan, City and State of New York, for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
9.6 Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts may be delivered by facsimile
transmission and shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
9.7 Effect of Headings. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Attest KEY HOSPITALITY ACQUISITION CORPORATION
By:
------------------------------- -----------------------------------
Name:
Title:
CONTINENTAL STOCK TRANSFER
Attest & TRUST COMPANY
By:
------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
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Exhibit A
Warrant Agent Fees
[to be provided]
1
