WARRANT AGREEMENT GHL ACQUISITION CORP. and AMERICAN STOCK TRANSFER & TRUST COMPANY, as Warrant Agent WARRANT AGREEMENT Dated as of November 12, 2007
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
_______________________________
Dated
as
of November 12, 2007
TABLE
OF
CONTENTS
Page
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SECTION
1. Appointment of Warrant Agent
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1
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SECTION
2. Warrant Certificates
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1
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SECTION
3. Execution of Warrant Certificates
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1
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SECTION
4. Registration and Countersignature
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2
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SECTION
5. Registration of Transfers and Exchanges; Transfer
Restrictions
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2
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SECTION
6. Terms of Warrants
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4
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SECTION
7. Payment of Taxes
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9
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SECTION
8. Mutilated or Missing Warrant Certificates
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9
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SECTION
9. Reservation of Warrant Shares
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9
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SECTION
10. Obtaining Stock Exchange Listings; State
Registration
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10
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SECTION
11. Adjustment of Number of Warrant Shares
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10
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SECTION
12. Fractional Interests
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20
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SECTION
13. Notices to Warrant Holders
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20
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SECTION
14. Merger, Consolidation or Change of Name of Warrant
Agent
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SECTION
15. Warrant Agent
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SECTION
16. Change of Warrant Agent
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25
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SECTION
17. Notices to Company and Warrant Agent
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25
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SECTION
18. Supplements and Amendments
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26
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SECTION
19. Successors
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SECTION
20. Termination
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26
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SECTION
21. Governing Law
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27
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SECTION
22. Benefits of This Agreement
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27
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i
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SECTION
23. Counterparts
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27
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SECTION
24. Force Majeure
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Exhibit
A Form of Warrant
Certificate
Exhibit
B Legend for Private
Warrants
ii
WARRANT
AGREEMENT dated as of November 12, 2007, between GHL Acquisition Corp.,
a Delaware corporation (the “Company”), and American Stock Transfer &
Trust Company, a New York corporation, as Warrant Agent (the “Warrant
Agent”).
WHEREAS,
the Company intends to file a registration statement (the “Registration
Statement”) with the Securities Exchange Commission for the initial public
offering of units (the “Initial Public Offering”), each unit
(“Unit”) consisting of one share of the Company’s common stock, par value
$0.001 per share (“Common Stock”), and one warrant to purchase one share
of Common Stock at an exercise price of $7.50 per share;
WHEREAS,
the Company has agreed to issue (i) in a private placement to
occur concurrently with the execution of that certain Founder’s Securities
Purchase Agreement, dated November 6, 2007, by and between the Company and
▇▇▇▇▇▇▇▇▇ & Co., Inc., a Delaware corporation (the “Founding
Stockholder”), 11,500,000 Units (the “Founder’s Units”), each unit
consisting of one share of Common Stock (the “Founder’s Shares”), and one
warrant to purchase one share of Common Stock at an exercise price of $7.50
per
share (the “Founder’s Warrants”) to the Founding Stockholder,
(ii) in a private placement to occur concurrently with
the
closing of the Initial Public Offering, 8,000,000 warrants, each to purchase
one
share of Common Stock at an exercise price of $7.50 per share (the “Private
Placement Warrants” and together with the Founder’s Warrants, the
“Private Warrants”) to the Founding Stockholder, and
(iii) up to 46,000,000 warrants to purchase shares
of Common
Stock to be offered to the public pursuant to the Registration Statement (the
“Public Warrants” and together with the Private Warrants, the
“Warrants”). The shares of Common Stock issuable on exercise
of the Warrants are referred to as the “Warrant Shares”; 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, transfer,
exchange and exercise of Warrants and other matters as provided
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION
1. Appointment of Warrant Agent. The
Company hereby appoints the Warrant Agent to act as agent for the Company in
accordance with the instructions set forth hereinafter in this Agreement, and
the Warrant Agent hereby accepts such appointment.
SECTION
2. Warrant Certificates. The certificates
evidencing the Warrants (the “Warrant Certificates”) to be delivered
pursuant to this Agreement shall be in registered form only and shall be
substantially in the form set forth in Exhibit A attached hereto, the
warrant certificates for the Private Warrants shall bear the legend set forth
in
Exhibit B except as set forth herein.
SECTION
3. Execution of Warrant
Certificates. Warrant Certificates shall be signed on behalf of
the Company by its Chairman of the Board or its Chief Executive Officer or
a
Senior Vice President or its Treasurer and by its Secretary or an Assistant
Secretary. Each such signature upon the Warrant Certificates may be
in the form of a facsimile signature of the present or any future Chairman
of
the Board, President, Chief Executive Officer, Vice President,
Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Warrant Certificates and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been Chairman of the Board,
President, Chief Executive Officer, Vice President, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of he or she shall have ceased
to hold such office.
In
case
any officer of the Company who shall have signed any of the Warrant Certificates
shall cease to be such officer before the Warrant Certificates so signed shall
have been countersigned by the Warrant Agent, or disposed of by the Company,
such Warrant Certificates nevertheless may be countersigned and delivered or
disposed of as though such person had not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company
by
any person who, at the actual date of the execution of such Warrant Certificate,
shall be a proper officer of the Company to sign such Warrant Certificate,
although at the date of the execution of this Warrant Agreement any such person
was not such officer.
Warrant
Certificates shall be dated the date of countersignature by the Warrant
Agent.
SECTION
4. Registration and
Countersignature. Warrant Certificates shall be countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent shall, upon written instructions of
the Chairman of the Board, the President or Chief Executive Officer, a Vice
President, the Treasurer or the Chief Financial Officer of the Company,
countersign, issue and deliver Warrants as provided in this
Agreement.
The
Company and the Warrant Agent may deem and treat the registered holder(s) of
the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for all
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
SECTION
5. Registration of Transfers and Exchanges; Transfer
Restrictions. The Warrant Agent shall from time to time, subject
to the limitations of this Section 5, register the transfer of any outstanding
Warrant Certificates upon the records to be maintained by it for that purpose,
upon surrender thereof duly endorsed or accompanied (if so required by the
Warrant Agent) by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by
a
duly authorized attorney. Upon any such registration of transfer, a
new Warrant Certificate shall be issued to the transferee(s) and the surrendered
Warrant Certificate shall be cancelled by the Warrant
Agent. Cancelled Warrant Certificates shall thereafter be disposed of
by the Warrant Agent in its customary manner.
The
Founder’s Warrants may not be sold or transferred until the date that is 180
days after the Company completes its Initial Business Combination and the
Private Placement Warrants may not be sold or transferred until the date
immediately following the date on which the Company completes its Initial
Business Combination, in either event except in each case to a Permitted
Transferee who agrees in writing with the Company to be subject to such transfer
restrictions and in the case of the Founder’s Warrants the forfeiture of such
Warrants as
2
described
in Section 6(g) below. The Founder’s Warrants shall cease to be subject to the
foregoing transfer restrictions if, subsequent to the Company’s completion of
its Initial Business Combination, (i) the Last Reported Sale Price (as defined
in Section 6(a) below) of the Common Stock equals or exceeds $14.25 per share
for any 20 trading days within a 30-trading day period beginning 90 days after
the Initial Business Combination, or (ii) the Company consummates a subsequent
liquidation, merger, stock exchange or other similar transaction that results
in
all of the Company’s stockholders having the right to exchange their shares of
Common Stock for cash, securities or other property. As used herein,
“Permitted Transferee” means (a) any officer, director or employee of the
Company; or (b) any other person or entity associated or affiliated with
▇▇▇▇▇▇▇▇▇ & Co., Inc.
The
holders of any Private Warrants or Warrant Shares issued upon exercise of any
Private Warrants further agree prior to any transfer of such securities, to
give
written notice to the Company expressing its desire to effect such transfer
and
describing briefly the proposed transfer. Upon receiving such notice,
the Company shall present copies thereof to its counsel and the holder agrees
not to make any disposition of all or any portion of such securities unless
and
until:
(a) there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement, in which case the legends set forth in Exhibit B
or Section 6(c) hereof, as the case may be (collectively the “Legends”)
with respect to such securities sold pursuant to such registration statement
shall be removed; or
(b) if
reasonably requested by the Company, (A) the holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that
such disposition will not require registration of such Securities under the
Securities Act, (B) the Company shall have received customary representations
and warranties regarding the transferee that are reasonably satisfactory to
the
Company signed by the proposed transferee and (C) the Company shall have
received an agreement by such transferee to the restrictions contained in the
Legends.
Each
Public Warrant shall initially be issued together with one share of Common
Stock
as a Unit. The share of Common Stock and Public Warrant comprising a
Unit shall not be separately transferable before the 35th day following the
date
of the prospectus with respect to the Company’s Initial Public Offering unless
the underwriter with respect thereto informs the Company of its decision to
allow earlier separate trading, in which case the Company shall notify the
Warrant Agent of the effective date of the separation, subject to the Company
having filed a Form 8-K with the Securities and Exchange Commission containing
an audited balance sheet reflecting the Company’s receipt of the gross proceeds
of the offering of the Units and has issued a press release announcing when
such
separate trading will begin (the later of such dates, the “Detachment
Date”). Prior to the Detachment Date, the Public Warrants may be
transferred or exchanged only together with the Unit in which such Public
Warrant is included, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Unit. Furthermore, prior to the
Detachment Date, each transfer of a Unit on the register relating to such Units
shall operate also to transfer the Public Warrant included in such
Unit.
3
Subject
to
the terms of this Agreement, Warrant Certificates may be exchanged at the option
of the holder(s) thereof, when surrendered to the Warrant Agent at its principal
corporate trust office, which is currently located at the address listed in
Section 17 hereof, for another Warrant Certificate or other Warrant Certificates
of like tenor and representing in the aggregate a like number of
Warrants. Any holder desiring to exchange a Warrant Certificate shall
deliver a written request to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
the Warrant Certificate or Certificates to be so exchanged. Warrant
Certificates surrendered for exchange shall be cancelled by the Warrant
Agent. Such cancelled Warrant Certificates shall then be disposed of
by such Warrant Agent in its customary manner.
The
Warrant Agent is hereby authorized to countersign, in accordance with the
provisions of this Section 5 and of Section 4 hereof, the new Warrant
Certificates required pursuant to the provisions of this Section 5.
SECTION
6. Terms of Warrants.
(a) Exercise
Price and Exercise Period.
The
initial exercise price per share that Warrant Shares shall be purchasable upon
the exercise of Warrants (the “Exercise Price”) shall be $7.50 per share,
and each Warrant shall be initially exercisable to purchase one share of Common
Stock.
Subject
to
the terms of this Agreement (including without limitation Section 6(e) below),
each Warrant holder shall have the right, which may be exercised commencing
at
the opening of business on the first day of the applicable Warrant Exercise
Period set forth below and until 5:00 p.m., New York time, on the last day
of
such Warrant Exercise Period, to receive from the Company the number of fully
paid and nonassessable Warrant Shares which the holder may at the time be
entitled to receive on exercise of such Warrants and payment of the Exercise
Price then in effect for such Warrant Shares or on a cashless basis pursuant
to
Section 6(d), if applicable. No adjustments as to dividends will be
made upon exercise of the Warrants.
The
“Warrant Exercise Period” shall (x) commence (subject to Section 6(e)
below), (A) for all Warrants other than the Founder’s Warrants on the later of:
(i) the date that is one year from the date of the final prospectus for the
Initial Public Offering or (ii) the date on which the Company completes its
Initial Business Combination (it being understood that in the event the Company
does not complete its Initial Business Combination, the Warrant Exercise Period
shall not commence), and (B) for the Founder’s Warrants on the date that the
Last Reported Sale Price of the Common Stock equals or exceeds $14.25 per share
for any 20 trading days within a 30-trading day period beginning 90 days after
the Initial Business Combination, and (y) shall end on the earlier of: (i)
the
date that is five years from the date of the final prospectus for the Initial
Public Offering or (ii) the Business Day preceding the date on which such
Warrants are redeemed pursuant to Section 6(b) below or expire pursuant to
Section 6(f) below.
4
The
“Last Reported Sale Price” of the Common Stock on any date of
determination means:
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(i)
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the
last reported sale price for the regular trading session (without
considering after hours or other trading outside regular trading
session
hours) of the Common Stock (regular way) on the American Stock Exchange
on
that date,
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(ii)
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if
the Common Stock is not listed for trading on the American Stock
Exchange
on that date, last reported sale price as reported in the composite
transactions for the principal United States securities exchange
on which
the Common Stock is so listed,
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(iii)
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if
the Common Stock is not so reported, the last quoted bid price for
the
Common Stock in the over-the-counter market as reported by the OTC
Bulletin Board, the National Quotation Bureau or similar organization,
or
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(iv)
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if
the Common Stock is not so quoted, the average of the mid-point of
the
last bid and ask prices for the Common Stock from at least three
nationally recognized investment-banking firms that the Company selects
for this purpose.
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Each
Warrant not exercised or redeemed prior to 5:00 p.m., New York time, on the
last
day of the Warrant Exercise Period shall become void and all rights thereunder
and all rights in respect thereof under this Agreement shall cease as of such
time.
(b) Redemption
of Warrants.
The
Company may call the Warrants for redemption, in whole and not in part, at
a
price of $.01 per Warrant, upon not less than 30 days’ prior written notice of
redemption to each Warrant holder, at any time after such Warrants have become
exercisable pursuant to Section 6(a), if, and only if, (i) the Last Reported
Sale Price has equaled or exceeded $14.25 per share for any 20 trading days
within a 30-trading day period ending on the third Business Day prior to the
notice of redemption to Warrant holders and (ii) at all times between the date
of such notice of redemption and the redemption date a registration statement
is
in effect covering the Warrant Shares issuable upon exercise of the Warrants
and
a current prospectus relating to those Warrant Shares is available.
Upon
a
call for redemption of Warrants by the Company, the Company shall have the
right
to require all holders of Warrants subject to redemption who exercise such
Warrants after the Company’s call for redemption to do so on a cashless basis in
accordance with the procedures set forth in Section 6(d).
Notwithstanding
the foregoing, no Private Warrants shall be redeemable at the option of the
Company so long as they are held by the Founding Stockholder or its Permitted
Transferees; provided that the fact that one or more Private Warrants are
non-redeemable because of the
5
reason
described above shall not affect the Company’s right to redeem the Public
Warrants and all Private Warrants that are not held by the Founding Stockholder
or its Permitted Transferees.
(c) Exercise
Procedure.
A
Warrant
may be exercised upon surrender to the Company at the principal stock transfer
office of the Warrant Agent, which is currently located at the address listed
in
Section 17 hereof, of the certificate or certificates evidencing the Warrants
to
be exercised with the form of election to purchase on the reverse thereof duly
filled in and signed and such other documentation as the Warrant Agent may
reasonably request, and upon payment to the Warrant Agent for the account of
the
Company of the Exercise Price (adjusted as herein provided if applicable) or
on
a cashless basis pursuant to Section 6(d), if applicable, for the number of
Warrant Shares in respect of which such Warrants are then exercised. Payment
of
the aggregate Exercise Price (unless on a cashless basis pursuant to Section
6(d)) shall be made by certified or official bank check payable to the order
of
the Company in New York Clearing House Funds, or the equivalent
thereof. In no event will any Warrants be settled on a net cash
basis.
Subject
to
the provisions of Section 7 hereof, upon such surrender of Warrants and payment
of the Exercise Price or on a cashless basis pursuant to Section 6(d), if
applicable, the Company shall issue and cause to be delivered with all
reasonable dispatch to and in such name or names as the Warrant holder may
designate, a certificate or certificates for the number of full Warrant Shares
issuable upon the exercise of such Warrants. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to
be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants and payment
of
the Exercise Price or on a cashless basis pursuant to Section 6(d), if
applicable.
The
Warrants shall be exercisable, at the election of the holders thereof, either
in
full or from time to time in part and, in the event that a certificate
evidencing Warrants is exercised in respect of fewer than all of the Warrant
Shares issuable on such exercise at any time prior to the date of expiration
of
the Warrants, a new certificate evidencing the remaining Warrant or Warrants
will be issued, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrant Certificate or Certificates
pursuant to the provisions of this Section 6 and of Section 4 hereof, and the
Company, whenever required by the Warrant Agent, shall supply the Warrant Agent
with Warrant Certificates duly executed on behalf of the Company for such
purpose. The Warrant Agent may assume that any Warrant presented for
exercise is permitted to be so exercised under applicable law and shall have
no
liability for acting in reliance on such assumption.
All
Warrant Certificates surrendered upon exercise of Warrants shall be canceled
by
the Warrant Agent. Such canceled Warrant Certificates shall then be
disposed of by the Warrant Agent in its customary manner. The Warrant
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all monies received by the Warrant Agent
for
the purchase of the Warrant Shares through the exercise of such
Warrants.
The
Warrant Agent shall keep copies of this Agreement and any notices given or
received hereunder available for inspection by the holders with reasonable
prior
written notice during
6
normal
business hours at its office. The Company shall supply the Warrant
Agent from time to time with such numbers of copies of this Agreement as the
Warrant Agent may request.
Certificates
evidencing Warrant Shares issued upon exercise of a Private Warrant shall
contain the following legend:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE.
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
(d) Cashless
Exercise.
(i) The
Private Warrants may be exercised on a cashless basis by the Founding
Stockholder and any Permitted Transferees, at the Founding Stockholder or such
Permitted Transferee’s election (the “Cashless Exercise
Election”).
(ii) Upon
a call for redemption of Warrants on a cashless basis by the Company pursuant
to
Section 6(b) (the “Cashless Exercise Demand”), all holders of Warrants
subject to redemption who exercise such Warrants shall do so on a cashless
basis.
(iii) If
the Founding Stockholder or any Permitted Transferee makes a Cashless Exercise
Election with respect to any Private Warrants or if the Company makes a Cashless
Exercise Demand with respect to the Warrants subject to redemption that the
holders thereof have elected to exercise after the Company’s call for
redemption, then upon surrender of such Warrants in accordance with Section
6(c), the Company shall issue and cause to be delivered with all reasonable
dispatch to and in such name or names as the Founding Stockholder or such
Permitted Transferee or such Warrant holder, as the case may be, may designate,
a certificate or certificates for the number of full Warrant Shares to be issued
upon such cashless exercise, computed by using the following
formula:
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X
=
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(A)(Y)
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(B)
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X
=
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The
Warrant Shares to be issued in connection with such cashless exercise
to
the holder of the Warrants being
exercised.
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Y=
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The
number of Warrant Shares underlying the Warrants being
exercised.
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A=
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The
value of one Warrant as of the date of the exercise, which shall
be
determined by using the following
formula:
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7
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A
=
B - the Exercise Price
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B=
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The
Fair Market Value of a share of Common
Stock.
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For
purposes of this Section 6(d), the “Fair Market Value” of a share of
Common Stock shall mean the average of the Last Reported Sale Prices for the
ten
trading days ending on the third trading day prior to (x) with respect to the
Private Warrants subject a Cashless Exercise Election, the date on which the
Warrant exercise notice is sent to the Warrant Agent, and (y) with respect
to
the Warrants subject to a Cashless Exercise Demand, the date on which the notice
of redemption is sent to the holders of the Warrants.
(iv) If
the Company makes a Cashless Exercise Demand, the notice of redemption shall
contain the information necessary to calculate the number of Warrant Shares
to
be received by Warrant holders upon exercise of the Warrants, including the
Fair
Market Value in such case.
(e) Registration
Requirement. Notwithstanding anything else in this Section 6, no
Warrants (including any Private Warrants) may be exercised unless at the time
of
exercise (i) a registration statement covering the Warrant Shares to be issued
upon exercise (other than Warrant Shares to be issued upon exercise of any
Private Warrant) is effective under the Act and (ii) a prospectus thereunder
relating to the Warrant Shares (other than Warrant Shares to be issued upon
exercise of any Private Warrant) is current. The Company shall use its best
efforts to have a registration statement in effect covering Warrant Shares
issuable upon exercise of the Warrants (other than Warrant Shares to be issued
upon exercise of any Private Warrant) from the date the Warrants become
exercisable and to maintain a current prospectus relating to those Warrant
Shares until the Warrants expire or are redeemed. In the event that,
at the end of the Warrant Exercise Period, a registration statement covering
the
Warrant Shares to be issued upon exercise (other than Warrant Shares to be
issued upon exercise of any Private Warrant) is not effective under the Act,
all
the rights of holders hereunder shall terminate and all of the Warrants shall
expire unexercised and worthless, and as a result purchasers of the Units will
have paid the full Unit price solely for the share of Common Stock included
in
each Unit. In no event shall the Warrants be settled on a net cash
basis nor shall the Company be required to issue unregistered shares upon the
exercise of any Warrant that is not a Private Warrant.
(f) Expiry
Upon Liquidation of Trust Account. If the Company is dissolved
because it fails to effect an Initial Business Combination, all of the rights
of
holders hereunder shall terminate and all of the Warrants shall expire
unexercised and worthless and as a result purchasers of the Units will have
paid
the full Unit purchase price solely for the share of Common Stock included
in
each Unit.
(g) Adjustment
of Founder’s Warrants.
(i) If
the underwriters with respect to the Initial Public Offering do not exercise
the
over-allotment option granted to them by the Company, the number of Founder's
Units necessary to ensure that the aggregate amount of Founder’s Shares held by
the Founding Stockholder and any Permitted Transferee does not exceed 20% of
the
issued and outstanding Common Stock of the Company upon consummation of the
Initial Public Offering shall be
8
immediately
forfeited to the Company by their holders. The Company will not make
any cash payment to the Founding Stockholder or any Permitted Transferee in
respect of any such adjustment.
(ii) If
the number of Units offered to the public in connection with the Initial Public
Offering is increased or decreased, the Founder’s Units (including the Founder’s
Units subject to forfeiture) will be adjusted in the same proportion as the
increase or decrease of the Units offered to the public in order to ensure
that
the aggregate amount of Founder’s Shares held by the Founding Stockholder and
any Permitted Transferee does not fall below or exceed 20% of the issued and
outstanding Common Stock of the Company upon consummation of the Initial Public
Offering (including any shares of Common Stock issued pursuant to the
underwriter’s over-allotment option). The Company will not make or
receive any cash payment to or from the Founding Stockholder or any Permitted
Transferees in respect of any such adjustment.
(iii) Any
additional Units, shares of Common Stock and Warrants the Founding Stockholder
or any of its Permitted Transferees may hold pursuant to (ii) above shall be
deemed to be Founder’s Units, Founder’s Shares and Founder’s Warrants hereunder
and any such Warrants (A) shall be subject to the transfer restrictions and
adjustment provisions set forth in this Agreement with respect thereto, and
(B)
shall bear the legend set forth in this Agreement with respect
thereto.
SECTION
7. Payment of Taxes. The Company will pay
all documentary stamp taxes attributable to the initial issuance of Warrant
Shares upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable
in
respect of any transfer involved in the issue of any Warrant Certificates or
any
certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant,
and
the Company shall not be required to issue or deliver such Warrant Certificates
unless or until the person or persons requesting the issuance thereof shall
have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION
8. Mutilated or Missing Warrant
Certificates. In case any of the Warrant Certificates shall be
mutilated, lost, stolen or destroyed, the Company shall issue and the Warrant
Agent shall countersign, in exchange and substitution for and upon cancellation
of the mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of
like
tenor and representing an equivalent number of Warrants, but only upon receipt
of evidence satisfactory to the Company and the Warrant Agent of such loss,
theft or destruction of such Warrant Certificate and indemnity, also
satisfactory to the Company and the Warrant Agent. Applicants for
such new Warrant Certificates must pay such reasonable charges as the Company
may prescribe.
SECTION
9. Reservation of Warrant Shares. The
Company will at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued Common Stock or
its
authorized and issued Common Stock held in its treasury, for the purpose of
enabling it to satisfy any obligation to issue Warrant Shares upon exercise
of
Warrants, the maximum number of shares of Common Stock which may then be
deliverable
9
upon
the
exercise of all outstanding Warrants. The Warrant Agent shall have no
duty to verify availability of such shares set aside by the
Company.
The
Company or, if appointed, the transfer agent for the Common Stock (the “Transfer
Agent”) and every subsequent transfer agent for any shares of the Common Stock
issuable upon the exercise of any of the Warrants will be irrevocably authorized
and directed at all times to reserve such number of authorized shares as shall
be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent and with every subsequent transfer
agent for any shares of the Common Stock issuable upon the exercise of the
Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance
with
the terms of this Agreement. The Company will supply such Transfer
Agent with duly executed certificates for such purposes. The Company
will furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto, transmitted to each holder pursuant to Section
13
hereof.
Before
taking any action which would cause an adjustment pursuant to Section 11 hereof
to reduce the Exercise Price below the then par value (if any) of the Warrant
Shares, the Company will take any commercially reasonable corporate action
which
may, in the opinion of its counsel (which may be counsel employed by the
Company), be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
The
Company covenants that all Warrant Shares which may be issued upon exercise
of
Warrants will, upon payment of the Exercise Price therefor or on a cashless
basis pursuant to Section 6(d), if applicable, and issue, be fully paid,
nonassessable, free of preemptive rights and free from all taxes, liens, charges
and security interests with respect to the issue thereof.
SECTION
10. Obtaining Stock Exchange Listings; State
Registration. The Company will from time to time take all
commercially reasonable actions which may be necessary so that the Warrant
Shares, immediately upon their issuance upon the exercise of Warrants, will
be
listed on the principal securities exchanges and markets within the United
States of America, if any, on which other shares of Common Stock are then
listed. To the extent that the Common Stock is not listed on a
national securities exchange or there is no exemption from state “blue sky”
securities laws for the issuance of the Warrant Shares, the Company will take
all commercially reasonable actions which may be necessary so that the Warrant
Shares are registered in all states in which the holders of the Warrants
reside.
SECTION
11. Adjustment of Number of Warrant
Shares.
The
number
of Warrant Shares issuable upon the exercise of each Warrant is subject to
adjustment from time to time upon the occurrence of the events enumerated in
this Section 11. For purposes of this Section 11, “Common Stock”
means shares now or hereafter authorized of any class of common stock of the
Company and any other stock of the Company, however designated, that has the
right (subject to any prior rights of any class or series of preferred stock)
to
participate in any distribution of the assets or earnings of the Company without
limit as to per share amount.
10
(a) Adjustment
for Change in Capital Stock.
If
the
Company:
(1) pays
a dividend or makes a distribution on its Common Stock in either case in shares
of its Common Stock;
(2) subdivides
its outstanding shares of Common Stock into a greater number of
shares;
(3) combines
its outstanding shares of Common Stock into a smaller number of
shares;
(4) makes
a distribution on its Common Stock in shares of its capital stock other than
Common Stock; or
(5) issues
by reclassification of its Common Stock any shares of its capital
stock,
then
the
number of shares of Common Stock issuable upon exercise of each Warrant
immediately prior to such action shall be proportionately adjusted so that
the
holder of any Warrant thereafter exercised shall receive the aggregate number
and kind of shares of capital stock of the Company which he would have owned
immediately following such action if such Warrant had been exercised immediately
prior to such action.
The
adjustment shall become effective immediately after the record date in the
case
of a dividend or distribution and immediately after the effective date in the
case of a subdivision, combination or reclassification.
Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) Adjustment
for Rights Issue.
If
the
Company distributes any rights, options or warrants to all holders of its Common
Stock entitling them to purchase shares of Common Stock at a price per share
less than the Last Reported Sale Price per share on the Business Day immediately
preceding the ex-dividend date for such distribution of rights, options or
warrants, the number of shares of Common Stock issuable upon exercise of each
Warrant shall be adjusted in accordance with the formula:
where:
N’
= the
adjusted number of shares of Common Stock issuable upon exercise of each
Warrant.
11
N
= the current
number of shares of Common Stock issuable upon exercise of each
Warrant.
O
= the number of
shares of Common Stock outstanding on the record date for such
distribution.
A
= the number of
additional shares of Common Stock issuable pursuant to such rights, options
or
warrants.
P
= the purchase
price per share of the additional shares.
M
= the Last Reported
Sale Price per share of Common Stock on the record date.
The
adjustment shall be made successively whenever any such rights, options or
warrants are issued and shall become effective immediately after the record
date
for the determination of stockholders entitled to receive the rights, options
or
warrants. If at the end of the period during which such rights,
options or warrants are exercisable, not all rights, options or warrants shall
have been exercised, the number of shares of Common Stock issuable upon exercise
of each Warrant shall be immediately readjusted to what it would have been
if
“N” in the above formula had been the number of shares actually
issued.
(c) Adjustment
for Other Distributions.
If
the
Company distributes to all holders of its Common Stock any of its assets
(including cash) or debt securities or any rights, options or warrants to
purchase debt securities, assets or other securities of the Company (other
than
Common Stock), the number of shares of Common Stock issuable upon exercise
of
each Warrant shall be adjusted in accordance with the formula:
where:
N’
= the adjusted number
of shares of Common Stock issuable upon exercise of each Warrant.
N
= the current
number of shares of Common Stock issuable upon exercise of each
Warrant.
M
= the Last Reported
Sale Price per share of Common Stock on the Business Day immediately preceding
the ex-dividend date for such distribution.
F
= the fair
market value on the ex-dividend date for such distribution of the assets,
securities, rights, options or warrants distributable to one share of Common
Stock after taking into account, in the case of any rights, options or warrants,
the consideration required to be paid upon exercise thereof. The
Board of Directors shall reasonably determine the fair market value in good
faith.
12
The
adjustment shall be made successively whenever any such distribution is made
and
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such distribution.
This
subsection (c) does not apply to regular quarterly cash dividends including
increases thereof or rights, options or warrants referred to in subsection
(b)
of this Section 11. If any adjustment is made pursuant to this
subsection (c) as a result of the issuance of rights, options or warrants and
at
the end of the period during which any such rights, options or warrants are
exercisable, not all such rights, options or warrants shall have been exercised,
the Warrant shall be immediately readjusted as if “F” in the above formula was
the fair market value on the ex-dividend date for such distribution of the
indebtedness or assets actually distributed upon exercise of such rights,
options or warrants divided by the number of shares of Common Stock outstanding
on the ex-dividend date for such distribution. Notwithstanding
anything to the contrary contained in this subsection (c), if “M-F” in the above
formula is less than $1.00, the Company may elect to, and if “M-F” or is a
negative number, the Company shall, in lieu of the adjustment otherwise required
by this subsection (c), distribute to the holders of the Warrants, upon exercise
thereof, the evidences of indebtedness, assets, rights, options or warrants
(or
the proceeds thereof) which would have been distributed to such holders had
such
Warrants been exercised immediately prior to the record date for such
distribution.
(d) Adjustment
for Common Stock Issue.
If
the
Company issues shares of Common Stock for a consideration per share less than
the Last Reported Sale Price per share on the date the Company fixes the
offering price of such additional shares, the number of shares of Common Stock
issuable upon exercise of each Warrant shall be adjusted in accordance with
the
formula:
where:
N’
= the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant.
N
= the current number
of shares of Common Stock issuable upon exercise of each Warrant.
O
= the number of
shares outstanding immediately prior to the issuance of such additional
shares.
P
= the aggregate
consideration received for the issuance of such additional shares.
M
= the Last Reported
Sale Price per share on the date of issuance of such additional
shares.
13
A
= the number of
shares outstanding immediately after the issuance of such additional
shares.
The
adjustment shall be made successively whenever any such issuance is made, and
shall become effective immediately after such issuance.
This
subsection (d) does not apply to:
(1) any
of the transactions described in subsections (b) and (c) of this Section
11,
(2) the
exercise of Warrants, or the conversion or exchange of other securities
convertible or exchangeable for Common Stock, or the issuance of Common Stock
upon the exercise of rights or warrants issued to the holders of Common
Stock,
(3) Common
Stock (and options exercisable therefor) issued to the Company’s employees,
officers, directors, consultants or advisors (whether or not still in such
capacity on the date of exercise) under bona fide employee benefit plans or
stock option plans adopted by the Board of Directors of the Company and approved
by the holders of Common Stock when required by law, if such Common Stock would
otherwise be covered by this subsection (d),
(4) Common
Stock issued in a bona fide public offering for cash,
(5) Common
Stock issued in a bona fide private placement to non-affiliates of the Company,
including without limitation the issuance of equity as consideration or partial
consideration for acquisitions from persons that are not affiliates of the
Company.
(e) Adjustment
for Convertible Securities Issue.
If
the
Company issues any securities convertible into or exchangeable for Common Stock
(other than securities issued in transactions described in subsections (b)
and
(c) of this Section 11) for a consideration per share of Common Stock initially
deliverable upon conversion or exchange of such securities less than the Last
Reported Sale Price per share on the date of issuance of such securities, the
number of shares of Common Stock issuable upon exercise of each Warrant shall
be
adjusted in accordance with this formula:
where:
N’
= the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant.
N
= the current number
of shares of Common Stock issuable upon exercise of each Warrant.
14
O
= the number of
shares outstanding immediately prior to the issuance of such
securities.
P
= the aggregate
consideration received for the issuance of such securities.
M
= the Last Reported
Sale Price per share on the date of issuance of such securities.
D
= the maximum
number of shares deliverable upon conversion or in exchange for such securities
at the initial conversion or exchange rate.
The
adjustment shall be made successively whenever any such issuance is made, and
shall become effective immediately after such issuance.
If
all of
the Common Stock deliverable upon conversion or exchange of such securities
have
not been issued when such securities are no longer outstanding, then the number
of shares of Common Stock issuable upon exercise of each Warrant shall promptly
be readjusted to what it would have been had the adjustment upon the issuance
of
such securities been made on the basis of the actual number of shares of Common
Stock issued upon conversion or exchange of such securities.
This
subsection (e) does not apply to:
(1) convertible
securities issued in a bona fide public offering for cash; or
(2) convertible
securities issued in a bona fide private placement to non-affiliates of the
Company, including the issuance of convertible securities as consideration
or
partial consideration for acquisitions from persons that are not affiliates
of
the Company.
(f) Adjustment
for Tender or Exchange Offer. If the Company or any of its
subsidiaries makes a payment in respect of a tender offer or exchange offer
for
the Common Stock, if the cash and value of any other consideration included
in
the payment per share of the Common Stock exceeds the Last Reported Sale Price
of the Common Stock on the trading day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender or exchange offer,
the
number of shares of Common Stock issuable upon exercise of each Warrant will
be
increased based on the following formula:
where,
N’
= the adjusted number of
shares of Common Stock issuable upon exercise of each Warrant;
No
= the current number
of shares of Common Stock issuable upon exercise of each warrant;
15
AC
= the aggregate value of
all cash and any other consideration (as determined by the Board of Directors
of
the Company) paid or payable for shares purchased in such tender or exchange
offer;
OSo
= the number of shares of Common
Stock outstanding immediately prior to the date such tender or exchange offer
expires;
OS’
= the number of shares of
Common Stock outstanding immediately after the date such tender or exchange
offer expires; and
SP’
= the Last Reported
Sale Price of the Common Stock on the trading day next succeeding the date
such
tender or exchange offer expires.
The
adjustment shall be made successively and shall become effective immediately
following the date such tender or exchange offer expires.
(g) Consideration
Received.
For
purposes of any computation respecting consideration received pursuant to
subsections (d), (e) and (f) of this Section 11, the following shall
apply:
(1) in
the case of the issuance of shares of Common Stock for cash, the consideration
shall be the amount of such cash, provided that in no case shall any
deduction be made for any commissions, discounts or other expenses incurred
by
the Company for any underwriting or other sale or disposition of the issue
or
otherwise in connection therewith;
(2) in
the case of the issuance of shares of Common Stock for a consideration in whole
or in part other than cash, the consideration other than cash shall be deemed
to
be the fair market value thereof as reasonably determined by the Board of
Directors of the Company (irrespective of the accounting treatment thereof)
and
described in a Board resolution which shall be filed with the Warrant Agent;
and
(3) in
the case of the issuance of securities convertible into or exchangeable for
shares, the aggregate consideration received therefor shall be deemed to be
the
consideration received by the Company for the issuance of such securities plus
the additional minimum consideration, if any, to be received by the Company
upon
the conversion or exchange thereof for the maximum number of shares used to
calculate the adjustment (the consideration in each case to be
determined in the same manner as provided in clauses (1) and (2) of this
subsection).
(h) Defined
Terms; When De Minimis Adjustment May Be Deferred.
As
used in
this section 11:
(1) “ex-dividend
date” means the first date on which the shares of Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right
to receive the issuance or distribution in question;
16
(2) “trading
day” means, with respect to the Common Stock or any other security, a day during
which (i) trading in the Common Stock or such other security generally occurs,
(ii) there is no market disruption event (as defined below) and (iii) a Last
Reported Sale Price for the Common Stock or such other security (other than
a
Last Reported Sale Price referred to in the next to last clause of such
definition) is available for such day; provided that if the Common Stock
or such other security is not admitted for trading or quotation on or by any
exchange, bureau or other organization, “trading day” will mean any Business
Day;
(3)
“market disruption event” means, with respect to the Common Stock or any other
security, the occurrence or existence of more than one-half hour period in
the
aggregate or any scheduled trading day for the Common Stock or such other
security of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or such other security or in any options,
contract, or future contracts relating to the Common Stock or such other
security, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (New York time) on such day; and
(4) “Business
Day” means, any day on which the American Stock Exchange is open for trading and
which is not a Saturday, a Sunday or any other day on which banks in the City
of
New York, New York, are authorized or required by law to close.
No
adjustment in the number of shares of Common Stock issuable upon exercise of
each Warrant need be made unless the adjustment would require an increase or
decrease of at least 1% in such number. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All
calculations under this Section 11 shall be made to the nearest cent or to
the
nearest 1/100th of a share, as the case may be.
(i) When
No Adjustment Required.
No
adjustment need be made for a transaction referred to in subsections (b), (c),
(d), (e) or (f) of this Section 11 if Warrant holders are to participate,
without requiring the Warrants to be exercised, in the transaction on a basis
and with notice that the Board of Directors of the Company reasonably determines
to be fair and appropriate in light of the basis and notice on which holders
of
Common Stock participate in the transaction.
No
adjustment need be made for a change in the par value or no par value of the
Common Stock.
To
the
extent the Warrants become convertible into cash, no adjustment need be made
thereafter as to the amount of cash into which such Warrants are
exercisable. Interest will not accrue on the cash.
(j) Notice
of Adjustment.
17
Whenever
the number of shares of Common Stock issuable upon exercise of each Warrant
is
adjusted, the Company shall provide the notices required by Section 13
hereof.
(k) Notice
of Certain Transactions.
If:
(1) the
Company takes any action that would require an adjustment in the Exercise Price
pursuant to subsections (a), (b), (c), (d), (e) or (f) of this Section 11 and
if
the Company does not arrange for Warrant holders to participate pursuant to
subsection (i) of this Section 11;
(2) the
Company takes any action that would require a supplemental Warrant Agreement
pursuant to subsection (l) of this Section 11; or
(3) there
is a liquidation or dissolution of the Company,
the
Company shall mail to Warrant holders a notice stating the proposed record
date
for a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, transfer, lease,
liquidation or dissolution. The Company shall mail the notice at
least 15 days before such date. Failure to mail the notice or any
defect in it shall not affect the validity of the transaction.
(l) Reorganization
of Company.
If
the
Company consolidates or merges with or into, or transfers or leases all or
substantially all its assets to, any person, upon consummation of such
transaction the Warrants shall automatically become exercisable for the kind
and
amount of securities, cash or other assets which the holder of a Warrant would
have owned immediately after the consolidation, merger, transfer or lease if
such holder had exercised the Warrant immediately before the effective date
of
the transaction; provided that (i) if the holders of Common Stock were
entitled to exercise a right of election as to the kind or amount of securities,
cash or other assets receivable upon such consolidation or merger, then the
kind
and amount of securities, cash or other assets for which each Warrant shall
become exercisable shall be deemed to be the weighted average of the kind and
amount received per share by the holders of Common Stock in such consolidation
or merger that affirmatively make such election or (ii) if a tender or exchange
offer shall have been made to and accepted by the holders of Common Stock under
circumstances in which, upon completion of such tender or exchange offer, the
maker thereof, together with members of any group (within the meaning of Rule
13d-5(b)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of which such maker is a part, and together with any affiliate or
associate of such maker (within the meaning of Rule 12b-2 under the Exchange
Act) and any members of any such group of which any such affiliate or associate
is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange
Act) more than 50% of the outstanding shares of Common Stock, the holder of
a
Warrant shall be entitled to receive the highest amount of cash, securities
or
other property to which such holder would actually have been entitled as a
shareholder if such Warrant holder had exercised the Warrant prior to the
expiration of such tender or exchange offer, accepted such offer and all of
the
Common Stock held by such holder had been purchased pursuant to such tender
or
exchange offer, subject to adjustments (from and
18
after
the
consummation of such tender or exchange offer) as nearly equivalent as possible
to the adjustments provided for in this Section 11. Concurrently with
the consummation of any such transaction, the corporation or other entity formed
by or surviving any such consolidation or merger if other than the Company,
or
the person to which such sale or conveyance shall have been made, shall enter
into a supplemental Warrant Agreement so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section. The successor Company shall
mail to Warrant holders a notice describing the supplemental Warrant
Agreement.
If
the
issuer of securities deliverable upon exercise of Warrants under the
supplemental Warrant Agreement is an affiliate of the formed, surviving,
transferee or lessee corporation, that issuer shall join in the supplemental
Warrant Agreement.
If
this
subsection (l) applies, subsections (a), (b), (c), (d), (e) and (f) of this
Section 11 do not apply.
(m) Warrant
Agent’s Disclaimer.
The
Warrant Agent has no duty to determine when an adjustment under this Section
11
should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under subsection (l) of this Section 11 are
correct. The Warrant Agent makes no representation as to the validity
or value of any securities or assets issued upon exercise of
Warrants. The Warrant Agent shall not be responsible for the
Company’s failure to comply with this Section.
(n) When
Issuance May Be Deferred.
In
any
case in which this Section 11 shall require that an adjustment in the number
of
shares of Common Stock issuable upon exercise of each Warrant be made effective
as of a record date for a specified event, the Company may elect to defer until
the occurrence of such event issuing to the holder of any Warrant exercised
after such record date the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise over and above the Warrant Shares
and other capital stock of the Company, if any, issuable upon such exercise
on
the basis of the number of shares of Common Stock issuable upon exercise of
each
Warrant; provided, however, that the Company shall deliver to such
holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder’s right
to receive such additional Warrant Shares and other capital stock upon the
occurrence of the event requiring such adjustment.
(o) Adjustment
in Exercise Price.
Upon
each
event that provides for an adjustment of the number of shares of Common Stock
issuable upon exercise of each Warrant pursuant to this Section 11, each Warrant
outstanding prior to the making of the adjustment shall thereafter have an
adjusted Exercise Price (calculated to the nearest ten millionth) obtained
from
the following formula:
19
where:
E’
= the adjusted
Exercise Price.
E
= the Exercise
Price prior to adjustment.
N’
= the adjusted number of
Warrant Shares issuable upon exercise of a Warrant by payment of the adjusted
Exercise Price.
N
= the number of
Warrant Shares previously issuable upon exercise of a Warrant by payment of
the
Exercise Price prior to adjustment.
Following
any adjustment to the Exercise Price pursuant to this Section 11, the amount
payable, when adjusted and together with any consideration allocated to the
issuance of the Warrants, shall never be less than the par value per Warrant
Share at the time of such adjustment. Such adjustment shall be made
successively whenever any event listed above shall occur.
(p) Form
of Warrants.
Irrespective
of any adjustments in the number or kind of shares issuable upon the exercise
of
the Warrants or the Exercise Price, Warrants theretofore or thereafter issued
may continue to express the same number and kind of shares and Exercise Price
as
are stated in the Warrants initially issuable pursuant to this
Agreement.
The
provisions of this Section 11 shall not apply until issuance of the Public
Warrants.
SECTION
12. Fractional Interests. The Company
shall not be required to issue fractional Warrant Shares on the exercise of
Warrants. If more than one Warrant shall be presented for exercise in
full at the same time by the same holder, the number of full Warrant Shares
which shall be issuable upon the exercise thereof shall be computed on the
basis
of the aggregate number of Warrant Shares purchasable on exercise of the
Warrants so presented. If any fraction of a Warrant Share would,
except for the provisions of this Section 12, be issuable on the exercise of
any
Warrants (or specified portion thereof), the Company shall, upon such exercise,
round up to the nearest whole number of number of Warrant Shares to be issued
to
the Warrant holder.
SECTION
13. Notices to Warrant Holders. Upon any
adjustment of the Exercise Price pursuant to Section 11, the Company shall
promptly thereafter, and in any event within five days, (i) cause to be filed
with the Warrant Agent a certificate executed by the Chief Financial Officer
or
principal financial officer of the Company setting forth the number of Warrant
Shares issuable upon exercise of each Warrant after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculations are based, and (ii) cause to be given to each of the
registered holders of the Warrant Certificates at his address appearing on
the
Warrant register written notice of such adjustments by first-class mail, postage
prepaid. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 13. The Warrant Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not
20
be
deemed
to have knowledge of such adjustment unless and until it shall have received
such certificate.
In
case:
(a) the
Company shall authorize the issuance to all holders of shares of Common Stock
of
rights, options or warrants to subscribe for or purchase shares of Common Stock
or of any other subscription rights or warrants; or
(b) the
Company shall authorize the distribution to all holders of shares of Common
Stock of evidences of its indebtedness or assets (other than regular cash
dividends or dividends payable in shares of Common Stock or distributions
referred to in subsection (b) of Section 11 hereof); or
(c) of
any consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or of the conveyance
or
transfer of the properties and assets of the Company substantially as an
entirety, or of any reclassification or change of Common Stock issuable upon
exercise of the Warrants (other than a change in par value, or from par value
to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or a tender offer or exchange offer for shares of Common Stock;
or
(d) of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company; or
(e) the
Company proposes to take any action not specified above which would require
an
adjustment of the Exercise Price pursuant to Section 11 hereof;
then
the
Company shall cause to be filed with the Warrant Agent and shall cause to be
given to each of the registered holders of the Warrant Certificates at his
address appearing on the Warrant register, at least 10 calendar days prior
to
the applicable record date hereinafter specified, or as promptly as practicable
under the circumstances in the case of events for which there is no record
date,
by first-class mail, postage prepaid, a written notice stating (i) the date
as
of which the holders of record of shares of Common Stock to be entitled to
receive any such rights, options, warrants or distribution are to be determined,
or (ii) the initial expiration date set forth in any tender offer or exchange
offer for shares of Common Stock, or (iii) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up is expected to become effective or consummated, and the date as of which
it
is expected that holders of record of shares of Common Stock shall be entitled
to exchange such shares for securities or other property, if any, deliverable
upon such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give the
notice required by this Section 13 or any defect therein shall not affect the
legality or validity of any distribution, right, option, warrant, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding up, or the
vote upon any action.
Nothing
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the holders thereof the right 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, or any rights
whatsoever as shareholders of the Company.
21
SECTION
14. Merger, Consolidation or Change of Name 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, or any
corporation succeeding to all or substantially all the corporate trust or agency
business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on
the
part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor warrant agent under the provisions
of
Section 16. In case at the time such successor to the Warrant Agent
shall succeed to the agency created by this Agreement, and in case at that
time
any of the Warrant Certificates shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and in case at that time any of the Warrant Certificates
shall not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor to the Warrant Agent; and in
all
such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
In
case at
any time the name of the Warrant Agent shall be changed and at such time any
of
the Warrant Certificates shall have been countersigned but not delivered, the
Warrant Agent whose name has been changed may adopt the countersignature under
its prior name, and in case at that time any of the Warrant Certificates shall
not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name, and in all such
cases such Warrant Certificates shall have the full force and effect provided
in
the Warrant Certificates and in this Agreement.
SECTION
15. Warrant Agent. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement (and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent) upon the following terms and conditions, by all of which the Company
and
the holders of Warrants, by their acceptance thereof, shall be
bound:
(a) The
statements contained herein and in the Warrant Certificates shall be taken
as
statements of the Company and the Warrant Agent assumes no responsibility for
the correctness of any of the same except such as describe the Warrant Agent
or
action taken or to be taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrant Certificates
except as herein otherwise provided.
(b) The
Warrant Agent shall not be responsible for any failure of the Company to comply
with any of the covenants contained in this Agreement or in the Warrant
Certificates to be complied with by the Company.
(c) The
Warrant Agent may consult at any time with counsel of its own selection (who
may
be counsel for the Company) and the Warrant Agent shall incur no liability
or
responsibility to the Company or to any holder of any Warrant Certificate in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel. The
Warrant Agent may execute any of the trusts or powers hereunder or perform
any
duties hereunder either directly or through agents or attorneys and
the
22
Warrant
Agent shall not be responsible for any misconduct or negligence on the part
of
any agent or attorney appointed with due care by it hereunder.
(d) The
Warrant Agent may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Warrant Agent and conforming to the requirements of this
Agreement. The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant Certificate for
any action taken in reliance on any Warrant Certificate, certificate of shares,
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument (whether in its original or facsimile form) believed
by
it to be genuine and to have been signed, sent or presented by the proper party
or parties.
(e) The
Company agrees to pay to the Warrant Agent such compensation for all services
rendered by the Warrant Agent in the administration and execution of this
Agreement as the Company and the Warrant Agent shall agree in writing and to
reimburse the Warrant Agent for all expenses, taxes and governmental charges
and
other charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement (including reasonable fees and expenses of its
outside counsel) and to indemnify the Warrant Agent (and any predecessor Warrant
Agent) and save it harmless against any and all claims (whether asserted by
the
Company, a holder or any other person), damages, losses, expenses (including
taxes other than taxes based on the income of the Warrant Agent), liabilities,
including judgments, costs and reasonable outside counsel fees and expenses,
for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of its negligence or willful misconduct. The
provisions of this Section 15(e) shall survive the expiration of the Warrants
and the termination of this Agreement.
(f) The
Warrant Agent shall be under no obligation to institute any action, suit or
legal proceeding or to take any other action likely to involve expense unless
the Company or one or more registered holders of Warrant Certificates shall
furnish the Warrant Agent with security and indemnity satisfactory to it for
any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as it may consider proper,
whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by
the
Warrant Agent without the possession of any of the Warrant Certificates or
the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought
in its name as Warrant Agent and any recovery of judgment shall be for the
ratable benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
(g) The
Warrant Agent, and any stockholder, director, officer or employee of it, may
buy, sell or deal in any of the Warrants or other securities of the Company
or
become pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act
as
fully and freely as though it were not Warrant Agent under this Agreement,
subject to compliance with applicable laws. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company
or
for any other legal entity.
23
(h) The
Warrant Agent shall act hereunder solely as agent for the Company, and its
duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything that it may do or refrain from
doing in connection with this Agreement except for its own negligence or willful
misconduct. Notwithstanding anything in this Agreement to the
contrary, in no event shall the Warrant Agent be liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including
but
not limited to lost profits), even if the Warrant Agent has been advised of
the
likelihood of the loss or damage and regardless of the form of the
action.
(i) The
Warrant Agent shall not at any time be under any duty or responsibility to
any
holder of any Warrant Certificate to make or cause to be made any adjustment
of
the Exercise Price or number of the Warrant Shares or other securities or
property deliverable as provided in this Agreement, or to determine whether
any
facts exist which may require any of such adjustments, or with respect to the
nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be
accountable with respect to the validity or value or the kind or amount of
any
Warrant Shares or of any securities or property which may at any time be issued
or delivered upon the exercise of any Warrant or with respect to whether any
such Warrant Shares or other securities will when issued be validly issued
and
fully paid and nonassessable, and makes no representation with respect
thereto.
(j) Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Warrant
Agent shall have any liability to any holder of a Warrant Certificate or other
Person as a result of its inability to perform any of its obligations under
this
Agreement by reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or enacted by any governmental
authority prohibiting or otherwise restraining performance of such obligation;
provided that (i) the Company must use its reasonable best efforts to
have any such order, decree or ruling lifted or otherwise overturned as soon
as
possible and (ii) nothing in this Section 15(j) shall affect the Company’s
obligation under Section 6(e) to use its best efforts to have a registration
statement in effect covering the Warrant Shares issuable upon exercise of the
Warrants and to maintain a current prospectus relating to those Warrant
Shares.
(k) Any
application by the Warrant Agent for written instructions from the Company
may,
at the option of the Warrant Agent, set forth in writing any action proposed
to
be taken or omitted by the Warrant Agent under this Agreement and the date
on
and/or after which such action shall be taken or such omission shall be
effective. The Warrant Agent shall not be liable for any action taken
by, or omission of, the Warrant Agent in accordance with a proposal included
in
such application on or after the date specified in such application (which
date
shall not be less than three Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Warrant Agent shall
have
received written instructions in response to such application specifying the
action to be taken or omitted.
24
(l) No
provision of this Agreement shall require the Warrant Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance
of
any of its duties hereunder or in the exercise of its rights.
(m) In
addition to the foregoing, the Warrant Agent shall be protected and shall incur
no liability for, or in respect of, any action taken or omitted by it in
connection with its administration of this Agreement if such acts or omissions
are not the result of the Warrant Agent’s reckless disregard of its duty, gross
negligence or willful misconduct and are in reliance upon (i) the proper
execution of the certification concerning beneficial ownership appended to
the
form of assignment and the form of the election attached hereto unless the
Warrant Agent shall have actual knowledge that, as executed, such certification
is untrue, or (ii) the non-execution of such certification including, without
limitation, any refusal to honor any otherwise permissible assignment or
election by reason of such non-execution.
SECTION
16. Change of Warrant Agent. The Warrant
Agent may at any time resign as Warrant Agent upon written notice to the
Company. If the Warrant Agent shall become incapable of acting as
Warrant Agent, the Company shall appoint a successor to such 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
of such incapacity by the Warrant Agent or by the registered holder of a Warrant
Certificate, then the registered holder of any Warrant Certificate or the
Warrant Agent may apply, at the expense of the Company, to any court of
competent jurisdiction for the appointment of a successor to the Warrant
Agent. Pending appointment of a successor to such Warrant Agent,
either by the Company or by such a court, the duties of the Warrant Agent shall
be carried out by the Company. The holders of a majority of the
unexercised Warrants shall be entitled at any time to remove the Warrant Agent
and appoint a successor to such Warrant Agent. If a Successor Warrant
Agent shall not have been appointed within 30 days of such removal, the Warrant
Agent may apply, at the expense of the Company, to any court of competent
jurisdiction for the appointment of a successor to the Warrant
Agent. Such successor to the Warrant Agent need not be approved by
the Company or the former Warrant Agent. After appointment the
successor to the Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent
without further act or deed; but the former Warrant Agent upon payment of all
fees and expenses due it and its agents and counsel shall deliver and transfer
to the successor to the Warrant Agent any property at the time held by it
hereunder and execute and deliver any further assurance, conveyance, act or
deed
necessary for the purpose. Failure to give any notice provided for in
this Section 16, however, or any defect therein, shall not affect the legality
or validity of the appointment of a successor to the Warrant Agent.
SECTION
17. Notices to Company and Warrant
Agent. Any notice or demand authorized by this Agreement to be
given or made by the Warrant Agent or by the registered holder of any Warrant
Certificate to or on the Company shall be sufficiently given or made when and
if
deposited in the mail, first class or registered, postage prepaid, addressed
(until another address is filed in writing by the Company with the Warrant
Agent), as follows:
c/o
Greenhill & Co., Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
General Counsel
In
case
the Company shall fail to maintain such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations may be made and notices and demands may be served at the principal
corporate trust office of the Warrant Agent.
Any
notice
pursuant to this Agreement to be given by the Company or by the registered
holder(s) of any Warrant Certificate to the Warrant Agent shall be sufficiently
given when and if deposited in the mail, first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) to the Warrant Agent as follows:
American
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Compliance Department
SECTION
18. Supplements and Amendments. The
Company and the Warrant Agent may from time to time supplement or amend this
Agreement without the approval of any holders of Warrant Certificates in order
to cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or
to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not in any way adversely affect the interests of the holders of
Warrant Certificates theretofore issued. Upon the delivery of a
certificate from an appropriate officer of the Company that states that the
proposed supplement or amendment is in compliance with the terms of this Section
18, the Warrant Agent shall execute such supplement or
amendment. Notwithstanding anything in this Agreement to the
contrary, the prior written consent of the Warrant Agent must be obtained in
connection with any supplement or amendment that alters the rights or duties
of
the Warrant Agent. The Company and the Warrant Agent may amend any
provision herein with the consent of the holders of Warrants exercisable for
a
majority of the Warrant Shares issuable on exercise of all outstanding Warrants
that would be affected by such amendment; provided that any amendment
affecting the Public Warrants must be approved by the holders of a majority
of
the Public Warrants. Without limiting the generality of the
foregoing, prior to the issuance of any Public Warrants, this Agreement
(including Exhibit A hereto) may be amended by the Company and the
Warrant Agent, without the consent of any holder of Private Warrants, to modify
in any way or provide for the terms of the Public Warrants.
SECTION
19. 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 hereunder.
SECTION
20. Termination. This Agreement will
terminate on the date that is five years from the date of the final prospectus
for the Initial Public Offering, or on any earlier date if all Warrants have
been exercised or expired without exercise. The provisions of Section
15 hereof shall survive such termination.
26
SECTION
21. Governing Law. This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made
under
the laws of the State of New York and for all purposes shall be construed in
accordance with the internal laws of said State. The parties agree
that, all actions and proceedings arising out of this Agreement or any of the
transactions contemplated hereby, shall be brought in the United States District
Court for the Southern District of New York or in a New York State Court in
the
County of New York and that, in connection with any such action or proceeding,
submit to the jurisdiction of, and venue in, such court. Each of the
parties hereto also irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim arising out of this Agreement or the transactions
contemplated hereby.
SECTION
22. Benefits of This Agreement. Nothing in
this Agreement shall be construed to give to any person or corporation other
than the Company, the Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this Agreement,
and this Agreement shall be for the sole and exclusive benefit of the Company,
the Warrant Agent and the registered holders of the Warrant
Certificates.
SECTION
23. Counterparts. This Agreement may be
executed in any number of counterparts and each of such counterparts shall
for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION
24. Force Majeure. In no event shall the
Warrant Agent be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused
by,
directly or indirectly, forces beyond its reasonable control, including without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services.
[Remainder
of Page Intentionally Left Blank]
27
IN
WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed,
as
of the day and year first above written.
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
AMERICAN
STOCK TRANSFER & TRUST
COMPANY,
as Warrant Agent
|
||||
|
By:
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||||
|
Name:
|
||||
|
Title:
|
||||
EXHIBIT
A
[Form
of
Warrant Certificate]
[Face]
Warrant
Certificate
This
Warrant Certificate certifies that ________________________, or registered
assigns, is the registered holder of __________ warrants (the “Warrants”)
to purchase shares of Common Stock, $.001 par value (the “Common Stock”),
of GHL Acquisition Corp., a Delaware corporation (the
“Company”). Each Warrant entitles the holder, upon exercise
during the period set forth in the Warrant Agreement referred to below, to
receive from the Company that number of fully paid and nonassessable shares
of
Common Stock (each, a “Warrant Share”) as set forth below at the exercise
price (the “Exercise Price”) as determined pursuant to the Warrant
Agreement payable in lawful money of the United States of America upon surrender
of this Warrant Certificate and payment of the Exercise Price (or on a cashless
basis, if applicable, pursuant to the terms of the Warrant Agreement) at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement.
Each
Warrant is initially exercisable for one share of Common Stock. The
number of Warrant Shares issuable upon exercise of the Warrants are subject
to
adjustment upon the occurrence of certain events set forth in the Warrant
Agreement.
The
initial Exercise Price per share of Common Stock for any Warrant is equal to
$7.50 per share. The Exercise Price is subject to adjustment upon the
occurrence of certain events set forth in the Warrant Agreement.
Warrants
may be exercised only during the Warrant Exercise Period subject to the
conditions set forth in the Warrant Agreement and to the extent not exercised
by
the end of such Warrant Exercise Period such Warrants shall become
void.
Reference
is hereby made to the further provisions of this Warrant Certificate set forth
on the reverse hereof and such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This
Warrant Certificate shall not be valid unless countersigned by the Warrant
Agent, as such term is used in the Warrant Agreement.
A-1
This
Warrant Certificate shall be governed and construed in accordance with the
internal laws of the State of New York, without regard to conflicts of laws
principles thereof.
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
Countersigned:
Dated: ,
20
|
|||||
|
AMERICAN
STOCK TRANSFER & TRUST
COMPANY,
as Warrant Agent
|
|||||
|
By
|
|||||
|
Authorized
Signatory
|
|||||
A-2
[Form
of
Warrant Certificate]
[Reverse]
The
Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants entitling the holder on exercise to receive shares of Common
Stock, par value $0.001 per share, of the Company (the “Common Stock”), and are
issued or to be issued pursuant to a Warrant Agreement dated as of November
12,
2007 (the “Warrant Agreement”), duly executed and delivered by the
Company to American Stock Transfer & Trust Company, a New York corporation,
as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words “holders” or “holder” meaning the registered holders or
registered holder) of the Warrants. A copy of the Warrant Agreement
may be obtained by the holder hereof upon written request to the
Company. Defined terms used in this Warrant Certificate but not
defined herein shall have the meanings given to them in the Warrant
Agreement.
Warrants
may be exercised at any time during the Warrant Exercise Period set forth in
the
Warrant Agreement. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate, with
the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price as specified in the Warrant
Agreement (or on a cashless basis, if applicable, pursuant to the terms of
the
Warrant Agreement) at the principal corporate trust office of the Warrant
Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number
of
Warrants evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any
Common Stock issuable upon exercise of this Warrant.
Notwithstanding
anything else in this Warrant Certificate or the Warrant Agreement, no Warrant
may be exercised unless at the time of exercise (i) a registration statement
covering the Warrant Shares to be issued upon exercise (other than Warrant
Shares to be issued upon exercise of any Private Warrant) is effective under
the
Act and (ii) a prospectus thereunder relating to the Warrant Shares (other
than
Warrant Shares to be issued upon exercise of any Private Warrant) is
current. In no event shall the Warrants be settled on a net cash
basis during the Warrant Exercise Period nor shall the Company be required
to
issue unregistered shares upon the exercise of any Warrant that is not a Private
Warrant.
The
Warrant Agreement provides that upon the occurrence of certain events the number
of Warrant Shares set forth on the face hereof may, subject to certain
conditions, be adjusted. No fractions of a share of Common Stock will
be issued upon the exercise of any Warrant, but the Company shall round up
to
the nearest whole number the number of Warrant Shares to be issued as provided
in the Warrant Agreement.
Warrant
Certificates, when surrendered at the principal corporate trust office of the
Warrant Agent by the registered holder thereof in person or by legal
representative or attorney
A-3
duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of
like
tenor evidencing in the aggregate a like number of Warrants.
Upon
due
presentation for registration of transfer of this Warrant Certificate at the
office of the Warrant Agent a new Warrant Certificate or Warrant Certificates
of
like tenor and evidencing in the aggregate a like number of Warrants shall
be
issued to the transferee(s) in exchange for this Warrant Certificate, subject
to
the limitations provided in the Warrant Agreement, without charge except for
any
tax or other governmental charge imposed in connection therewith.
The
Company and the Warrant Agent may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, of any distribution to the holder(s) hereof,
and
for all other purposes, and neither the Company nor the Warrant Agent shall
be
affected by any notice to the contrary. Neither the Warrants nor this
Warrant Certificate entitles any holder hereof to any rights of a stockholder
of
the Company.
A-4
Election
to Purchase
(To
Be
Executed Upon Exercise Of Warrant)
The
undersigned hereby irrevocably elects to exercise the right, represented by
this
Warrant Certificate, to receive __________ shares of Common Stock and herewith
tenders payment for such shares to the order of GHL Acquisition Corp. in the
amount of $______ in accordance with the terms hereof. The
undersigned requests that a certificate for such shares be registered in the
name of ________________, whose address is _______________________________
and
that such shares be delivered to ________________ whose address is ___________
______________________. If said number of shares is less than all of
the shares of Common Stock purchasable hereunder, the undersigned requests
that
a new Warrant Certificate representing the remaining balance of such shares
be
registered in the name of ______________, whose address
is _________________________, and that such Warrant Certificate be
delivered to _________________, whose address is
__________________.
|
Signature:
|
|
|
Date: ,
20
|
|
|
Signature
Guaranteed:
|
A-5
EXHIBIT
B
LEGEND
FOR PRIVATE WARRANTS
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING THE SHARES OF COMMON
STOCK
OF THE COMPANY ISSUABLE UPON EXERCISE OF SUCH SECURITIES) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. IN ADDITION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN TRANSFER RESTRICTIONS SET FORTH IN THE
WARRANT AGREEMENT REFERRED TO HEREIN [AND ARE SUBJECT TO FORFEITURE IN CERTAIN
CIRCUMSTANCES].1
SECURITIES
EVIDENCED BY THIS CERTIFICATE AND SHARES OF COMMON STOCK OF THE COMPANY ISSUABLE
UPON EXERCISE OF SUCH SECURITIES WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
|
No.
_____
|
_______
Warrants
|