EXHIBIT 4.5
WARRANT AGREEMENT
This Warrant Agreement (the "AGREEMENT") made as of ________, 2006 between
Tailwind Financial Inc., a Delaware corporation, with offices at BCE Place, ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "COMPANY"), and
American Stock Transfer & Trust Company, a New York corporation, with offices at
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "WARRANT AGENT").
WHEREAS, the Company is engaged in a public offering ("PUBLIC OFFERING") of
units of the Company ("UNITS"), each Unit consisting of one share of common
stock of the Company, par value $0.01 per share (the "COMMON STOCK"), and one
warrant exercisable for one share of Common Stock, and in connection therewith,
has determined to issue and deliver up to (i) 14,375,000 warrants (the "PUBLIC
WARRANTS") to the public investors for $6.00 per warrant, (ii) 4,000,000
warrants (the "FOUNDER WARRANTS") to Parkwood Holdings Ltd. for $1.00 per
warrant and (iii) 625,000 warrants to Deutsche Bank Securities Inc. ("DEUTSCHE
BANK") or its designees (the "REPRESENTATIVE'S WARRANTS" and, together with the
Public Warrants and the Founder Warrants, the "WARRANTS"), for $7.20, in each
case subject to adjustment as described herein;
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "SEC") a Registration Statement on Form S-1, No. 333-135790 (the
"REGISTRATION STATEMENT"), for the registration, under the Securities Act of
1933, as amended (the "ACT") of, among other securities, the Public Warrants and
the Representative's Warrants and the Common Stock issuable upon exercise of the
Public Warrants and the Representative's Warrants;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, call, exercise and cancellation of
the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant Agent
to act as agent for the Company for the Warrants, and the Warrant Agent hereby
accepts such appointment and agrees to perform the same in accordance with the
terms and conditions set forth in this Agreement.
2. WARRANTS.
2.1. FORM OF WARRANT. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Warrant attached as EXHIBIT A hereto, the
provisions of which are incorporated herein and shall be signed by, or bear the
facsimile signature of, the President and Assistant Secretary of the Company and
shall bear a facsimile of the Company's seal. In the event the person whose
facsimile signature has been placed upon any Warrant shall have ceased to serve
in the capacity in which such person signed the Warrant before such Warrant is
issued, it may be issued with the same effect as if he or she had not ceased to
be such at the date of issuance.
2.2. EFFECT OF COUNTERSIGNATURE. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof.
2.3. REGISTRATION.
2.3.1. WARRANT REGISTER. The Warrant Agent shall maintain books ("WARRANT
REGISTER"), for the registration of original issuance and the registration of
transfers of the Warrants. Upon the initial issuance of the Warrants, the
Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof in such denominations and otherwise in accordance
with instructions delivered to the Warrant Agent by the Company.
2.3.2. REGISTERED HOLDER. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem and treat
the person in whose name such Warrant shall be registered upon the Warrant
Register ("REGISTERED HOLDER"), as the absolute owner of such Warrant and of
each Warrant represented thereby (notwithstanding any notation of ownership or
other writing on the Warrant Certificate made by anyone other than the Company
or the Warrant Agent), for the purpose of any exercise thereof, and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
2.4. DETACHABILITY OF WARRANTS. The securities comprising the Units will
not be separately transferable until ninety (90) days after the date hereof
unless Deutsche Bank informs the Company of its decision to allow earlier
separate trading, but in no event will Deutsche Bank allow separate trading of
the securities comprising the Units until the Company files a Current Report on
Form 8-K with the SEC which includes an audited balance sheet reflecting the
receipt by the Company of the gross proceeds of the Public Offering including
the proceeds received by the Company from the exercise of the Underwriter's
over-allotment option, if the over-allotment option is exercised prior to the
filing of the Form 8-K.
2.5 FOUNDER WARRANTS AND REPRESENTATIVE'S WARRANTS. The Representative's
Warrants and the Founder Warrants shall have the same terms and be in the same
form as the Public Warrants except (i) with respect to the Warrant Price as set
forth below in Section 3.1 and (ii) the restriction on transfer of the Founder
Warrants pursuant to Section 5.6 of that certain Security Escrow Agreement of
even date herewith (the "ESCROW AGREEMENT").
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3. TERMS AND EXERCISE OF WARRANTS
3.1. WARRANT PRICE. Each Public Warrant and each Founder Warrant shall,
when countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Public Warrant or Founder Warrant and of this
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $6.00 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. Each Representative's Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Representative's Warrant and of this Agreement, to purchase from the
Company the number of shares of Common Stock stated therein, at the price of
$7.20 per whole share, subject to the adjustments provided in Section 4 hereof.
The term "WARRANT PRICE" as used in this Agreement refers to the price per share
at which Common Stock may be purchased at the time a Warrant is exercised. The
Company in its sole discretion may lower the Warrant Price at any time prior to
the Expiration Date; provided, however, that any change in the Warrant Price
must apply equally to all of the warrants, except that any amendment to the term
of the Representative's Warrants shall be subject to any limitations and
conditions that may be imposed by NASD Corporate Finance Rule 2710, and provided
further that any reduction in Warrant Price must remain in effect for at least
twenty (20) business days.
3.2. DURATION OF WARRANTS. A Warrant may be exercised only during the
period ("EXERCISE PERIOD") commencing on the later of (i) the completion of the
initial acquisition by the Company of one or more assets or operating businesses
through a merger, capital stock exchange, asset or stock acquisition,
exchangeable share transaction or other similar business combination (a
"BUSINESS COMBINATION"), and (ii) [-], 2007 (one year after the effective date
of the Registration Statement), and terminating at 5:00 p.m., New York City time
on the earlier to occur of (i) [-], 2010 or (ii) the date fixed for calling the
Warrants as provided in Section 6 of this Agreement ("EXPIRATION DATE"). Except
with respect to the right to receive the Call Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date. The
Company in its sole discretion may extend the duration of the Warrants by
delaying the Expiration Date; provided, however, that any extension of the
duration of the Warrants must apply equally to all of the Warrants except that
any amendment to the term of the Representative's Warrants shall be subject to
any limitations and conditions that may be imposed by NASD Corporate Finance
Rule 2710. Should the Company wish to extend the Expiration Date of the
Warrants, the Company shall provide advance notice to the American Stock
Exchange, and shall, if possible, provide at least two (2) months advance notice
to the American Stock Exchange, but in no event will the Company provide less
than twenty (20) days advance notice of such extension to the American Stock
Exchange.
3.3. EXERCISE OF WARRANTS.
3.3.1. PAYMENT. Subject to the provisions of the Warrant and this
Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised
by the registered holder thereof by surrendering it, at the office of the
Warrant Agent, or at the office of its successor as Warrant Agent, in the
Borough of Manhattan, City and State of New York, with the subscription form, as
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set forth in the Warrant, duly executed, and by paying in full, in lawful money
of the United States, in cash, good certified check or good bank draft payable
to the order of the Company (or as otherwise agreed to by the Company), the
Warrant Price for each full share of Common Stock as to which the Warrant is
exercised and any and all applicable taxes due in connection with the exercise
of the Warrant, the exchange of the Warrant for the Common Stock, and the
issuance of the Common Stock; PROVIDED, HOWEVER, that with respect to any
Warrants purchased from the Company during the six-month period following
separate trading of the Warrants included in the Company's Units, in the event
of a call pursuant to Section 6 hereof, such stockholder may pay the Warrant
Price by surrendering his Warrant for that number of shares of Common Stock
equal to the quotient obtained by dividing (x) the product of the number of
shares of Common Stock underlying the Warrant, multiplied by the difference
between the Warrant Price and the "FAIR MARKET VALUE" (defined below) by (y) the
Fair Market Value. The "FAIR MARKET VALUE" shall mean the average reported last
sale price of the Common Stock for the ten (10) trading days ending on the 3rd
trading day prior to the date on which the notice of the call is sent to holders
of Warrant pursuant to Section 6 hereof.
3.3.2. ISSUANCE OF CERTIFICATES. As soon as practicable after the exercise
of any Warrant and the clearance of the funds in payment of the Warrant Price,
the Company shall issue to the registered holder of such Warrant a certificate
or certificates for the number of full shares of Common Stock to which such
holder is entitled, registered in such name or names as may be directed by him,
her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised. Notwithstanding the foregoing, the Company shall not be
obligated to deliver any securities pursuant to the exercise of a Warrant, and
shall have no obligation to settle the Warrant exercise unless a registration
statement under the Act with respect to the Common Stock is effective, subject
to the Company satisfying its obligations under Section 7.4 to use its best
efforts. For the avoidance of doubt, the Company shall not be obligated to
deliver any securities pursuant to the exercise of a Founder Warrant and shall
have no obligation to settle the Founder Warrant exercise unless a registration
statement under the Act with respect to the Common Stock underlying the Public
Warrants is effective. In the event that a registration statement with respect
to the Common Stock underlying a Warrant is not effective under the Act, the
holder of such Warrant shall not be entitled to exercise such Warrant.
Notwithstanding anything to the contrary contained in this Agreement, under no
circumstances will the Company be required to net cash settle the exercise of
the Warrants. Warrants may not be exercised by, or securities issued to, any
registered holder in any jurisdiction in which such exercise would be unlawful.
As a result of the provisions of this Section 3.3.2, any or all of the Warrants
may expire unexercised. In no event shall the registered Holder of a Warrant be
entitled to receive any monetary damages if the Common Stock underlying the
Warrants have not been registered by the Company pursuant to an effective
registration statement or if a current prospectus is available for delivery by
the Warrant Agent, provided the Company has fulfilled its obligation to use its
best efforts to effect such registration and ensure a current prospectus is
available for delivery by the Warrant Agent.
3.3.3. VALID ISSUANCE. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
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3.3.4. DATE OF ISSUANCE. Each person in whose name any such certificate for
shares of Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the date
of delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are open.
4. ADJUSTMENTS.
4.1. STOCK DIVIDENDS -- SPLIT-UPS. If after the date hereof, and subject to
the provisions of Section 4.6 below, the number of outstanding shares of Common
Stock is increased by a stock dividend payable in shares of Common Stock, or by
a split-up of shares of Common Stock, or other similar event, then, on the
effective date of such stock dividend, split-up or similar event, the number of
shares of Common Stock issuable on exercise of each Warrant shall be increased
in proportion to such increase in outstanding shares of Common Stock.
4.2. AGGREGATION OF SHARES. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common Stock issuable
on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares of Common Stock.
4.3. ADJUSTMENTS IN EXERCISE PRICE. Whenever the number of shares of Common
Stock purchasable upon the exercise of the Warrants is adjusted, as provided in
Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest
cent) by multiplying such Warrant Price immediately prior to such adjustment by
a fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter.
4.4. REPLACEMENT OF SECURITIES UPON REORGANIZATION, ETC. In case of any
reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Sections 4.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation,
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or upon a dissolution following any such sale or transfer, that the Warrant
holder would have received if such Warrant holder had exercised his, her or its
Warrant(s) immediately prior to such event; and if any reclassification also
results in a change in shares of Common Stock covered by Sections 4.1 or 4.2,
then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3 and this
Section 4.4. The provisions of this Section 4.4 shall similarly apply to
successive reclassifications, reorganizations, mergers or consolidations, sales
or other transfers.
4.5. NOTICES OF CHANGES IN WARRANT. Upon every adjustment of the Warrant
Price or the number of shares issuable upon exercise of a Warrant, the Company
shall give written notice thereof to the Warrant Agent, which notice shall state
the Warrant Price resulting from such adjustment and the increase or decrease,
if any, in the number of shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Upon the occurrence of any event
specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company
shall give written notice to each Warrant holder, at the last address set forth
for such holder in the warrant register, of the record date or the effective
date of the event. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such event.
4.6. NO FRACTIONAL SHARES. Notwithstanding any provision contained in this
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant to this
Section 4, the holder of any Warrant would be entitled, upon the exercise of
such Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up or down to the nearest whole number the number of
the shares of Common Stock to be issued to the Warrant holder.
4.7. FORM OF WARRANT. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement. However, the
Company may at any time in its sole discretion make any change in the form of
Warrant that the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or countersigned, whether
in exchange or substitution for an outstanding Warrant or otherwise, may be in
the form as so changed.
4.8. EXTRAORDINARY DIVIDENDS. If the Company, at any time during the
Exercise Period, shall pay a dividend or make a distribution in cash, securities
or other assets to the holders of Common Stock (or other shares of the Company's
capital stock into which the Warrants are convertible), other than (w) as
described in Sections 4.1, 4.2 or 4.4, (x) regular quarterly or other periodic
dividends, (y) in connection with the conversion rights of the holders of Common
Stock upon consummation of the Company's initial Business Combination or (z) in
connection with the Company's liquidation and the distribution of its assets
upon its failure to consummate a Business Combination (any such non-excluded
event being referred to herein as an "EXTRAORDINARY DIVIDEND"), then the Warrant
Price shall be decreased, effective immediately after the effective date of such
Extraordinary Dividend, by the amount of cash and/or the fair market value (as
determined by the Company's Board of Directors, in good faith) of any securities
or other assets paid on each share of Common Stock in respect of such
Extraordinary Dividend.
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5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1. REGISTRATION OF TRANSFER. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be cancelled by the
Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request.
5.2. PROCEDURE FOR SURRENDER OF WARRANTS. Warrants may be surrendered to
the Warrant Agent, together with a written request for exchange or transfer, and
thereupon the Warrant Agent shall issue in exchange therefor one or more new
Warrants as requested by the registered holder of the Warrants so surrendered,
representing an equal aggregate number of Warrants; provided, however, that in
the event that a Warrant surrendered for transfer bears a restrictive legend,
the Warrant Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion of counsel for
the Company stating that such transfer may be made and indicating whether the
new Warrants must also bear a restrictive legend.
5.3. FRACTIONAL WARRANTS. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4. SERVICE CHARGES. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5. WARRANT EXECUTION AND COUNTERSIGNATURE. The Warrant Agent is hereby
authorized to countersign and to deliver, in accordance with the terms of this
Agreement, the Warrants required to be issued pursuant to the provisions of this
Section 5, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrants duly executed on behalf of the Company for such
purpose.
5.6. RESTRICTIONS. The Founder Warrants may not be sold, transferred,
pledged, hypothecated or assigned until the date which is ninety (90) days
following the consummation of a Business Combination and are subject to the
terms and conditions of the Escrow Agreement.
6. CALL.
6.1. CALL. Subject to Section 6.4 hereof, not less than all of the
outstanding Warrants may be called, at the option of the Company, at any time
after they become exercisable and prior to their expiration, at the office of
the Warrant Agent, upon the notice referred to in Section 6.2, at the price of
$.01 per Warrant ("CALL PRICE"), provided that (i) the last sales price of the
Common Stock has been at least $11.50 per share (the "TRIGGER PRICE"), on each
of twenty (20) trading days within any thirty (30) trading day period ending on
the third business day prior to the date on which notice of the call is given
and (ii) the Public Warrants and the Representative's Warrants and the Common
Stock underlying such Warrants are covered by an effective registration
statement and a current prospectus from the beginning of the measurement period
through the date fixed for the call.
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6.2. DATE FIXED FOR, AND NOTICE OF, THE CALL. In the event the Company
shall elect to call all of the Warrants, the Company shall fix a date for the
call, which date shall be prior to the expiration of the Warrants (the "CALL
DATE"). Notice of the call shall be mailed by first class mail, postage prepaid,
by the Company not less than thirty (30) days prior to the date fixed for the
call to the registered holders of the Warrants to be called at their last
addresses as they shall appear on the registration books. Any notice mailed in
the manner herein provided shall be conclusively presumed to have been duly
given on the date sent whether or not the registered holder received such
notice. In the event of any adjustment to the Warrant Price or the number of
shares of Common Stock issuable on exercise of each Warrant as provided in
Section 4, a proportional adjustment shall be made to the Trigger Price.
6.3. EXERCISE AFTER NOTICE OF THE CALL. The Warrants may be exercised, for
cash at any time after notice of the call shall have been given by the Company
pursuant to Section 6.2 hereof and prior to the Call Date. On and after the Call
Date, the record holder of the Warrants shall have no further rights except to
receive, upon surrender of the Warrants, the Call Price.
6.4 OUTSTANDING WARRANTS ONLY. The Company understands that the call rights
provided for in this Section 6 apply only to outstanding Warrants. To the extent
a person holds rights to purchase Warrants, such purchase rights shall not be
extinguished by the call. However, once such purchase rights are exercised, the
Company may call the Warrants issued upon such exercise provided that the
criteria for the call is met.
7. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1. NO RIGHTS AS STOCKHOLDER. A Warrant does not entitle the registered
holder thereof to any of the rights of a stockholder of the Company, including,
without limitation, the right to receive dividends, or other distributions,
exercise any preemptive rights to vote or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or the election of
directors of the Company or any other matter.
7.2. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If any Warrant is
lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on
such terms as to indemnity or otherwise as they may in their discretion impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3. RESERVATION OF COMMON STOCK. The Company shall at all times reserve
and keep available a number of its authorized but unissued shares of Common
Stock that will be sufficient to permit the exercise in full of all outstanding
Warrants issued pursuant to this Agreement.
7.4. REGISTRATION OF COMMON STOCK. The Company agrees that prior to the
commencement of the Exercise Period, it shall file with the SEC a post-effective
amendment to the Registration Statement, or a new registration statement, for
the registration, under the Act, of, and it shall take such action as is
necessary to qualify for sale, in those states in which the Public Warrants and
the Representative's Warrants were initially offered by the Company, the Common
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Stock issuable upon exercise of the Public Warrants and the Representative's
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective on or prior to the commencement of the Exercise Period
and use its best efforts to maintain the effectiveness of such registration
statement and ensure that a current prospectus is on file with the SEC until the
expiration of the Warrants in accordance with the provisions of this Agreement;
provided, however, that the Company shall not be obligated to deliver
securities, and shall not have penalties for failure to deliver securities, if a
registration statement is not effective or a current prospectus is not on file
with the SEC at the time of exercise by the holder. The provisions of this
Section 7.4 may not be modified, amended or deleted without prior written
consent of Deutsche Bank.
7.5. DELIVERY OF PROSPECTUS OR NOTICE. Upon the exercise of any Warrant, if
the Company requests, the Warrant Agent shall deliver to the Holder of such
Warrant, prior to or concurrently with the delivery of the Shares issued upon
such exercise, in accordance with the Company's request, either (i) a prospectus
relating to the Shares deliverable upon exercise of Warrants and complying in
all material respects with the Securities Act or (ii) the notice referred to in
Rule 173 under the Securities Act.
8. CONCERNING THE WARRANT AGENT AND OTHER MATTERS.
8.1. PAYMENT OF TAXES. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in
respect of the issuance or delivery of shares of Common Stock upon the exercise
of Warrants, but the Company shall not be obligated to pay any transfer taxes in
respect of the Warrants or such shares.
8.2. RESIGNATION, CONSOLIDATION, OR MERGER OF WARRANT AGENT.
8.2.1. APPOINTMENT OF SUCCESSOR WARRANT AGENT. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days'
notice in writing to the Company. If the office of the Warrant Agent becomes
vacant by resignation or incapacity to act or otherwise, the Company shall
appoint in writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of thirty (30)
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice,
submit his Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent at the Company's
cost. Any successor Warrant Agent, whether appointed by the Company or by such
court, shall be a corporation organized and existing under the laws of the State
of New York in good standing and having its principal office in the Borough of
Manhattan City and State of New York, and authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal or
state authority. After appointment, any successor Warrant Agent shall be vested
with all the authority, powers, rights, immunities, duties, and obligations of
its predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an
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instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request
of any successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2. NOTICE OF SUCCESSOR WARRANT AGENT. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to the
predecessor Warrant Agent and the transfer agent for the Common Stock not later
than the effective date of any such appointment.
8.2.3. MERGER OR CONSOLIDATION OF WARRANT AGENT. Any corporation into which
the Warrant Agent may be merged or with which it may be consolidated or any
corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party shall be the successor Warrant Agent under this Agreement
without any further act.
8.3. FEES AND EXPENSES OF WARRANT AGENT.
8.3.1. REMUNERATION. The Company agrees to pay the Warrant Agent reasonable
remuneration for its services as such Warrant Agent hereunder and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant Agent may
reasonably incur in the execution of its duties hereunder.
8.3.2. FURTHER ASSURANCES. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
8.4. LIABILITY OF WARRANT AGENT.
8.4.1. RELIANCE ON COMPANY STATEMENT. Whenever in the performance of its
duties under this Agreement, the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a statement signed by the Chief
Executive Officer or Chairman of the Board of Directors of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions
of this Agreement.
8.4.2. INDEMNITY. The Warrant Agent shall be liable hereunder only for its
own negligence, willful misconduct or bad faith. The Company agrees to indemnify
the Warrant Agent and save it harmless against any and all liabilities,
including judgments, costs and reasonable counsel fees, for anything done or
omitted by the Warrant Agent in the execution of this Agreement except as a
result of the Warrant Agent's negligence, willful misconduct, or bad faith.
8.4.3. EXCLUSIONS. The Warrant Agent shall have no responsibility with
respect to the validity of this Agreement or with respect to the validity or
execution of any Warrant (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any
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covenant or condition contained in this Agreement or in any Warrant; nor shall
it be responsible to make any adjustments required under the provisions of
Section 4 hereof or responsible for the manner, method, or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5. ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and among other things, shall account promptly to
the Company with respect to Warrants exercised and concurrently account for, and
pay to the Company, all moneys received by the Warrant Agent for the purchase of
shares of Common Stock through the exercise of Warrants.
8.6. WAIVER. The Warrant Agent hereby waives any and all right, title,
interest or claim of any kind ("CLAIM") in or to any distribution of the Trust
Account (as defined in that certain Investment Management Trust Agreement, dated
as of the date hereof, by and between the Company and the Warrant Agent as
trustee thereunder), and hereby agrees not to seek recourse, reimbursement,
payment or satisfaction for any Claim against the Trust Account for any reason
whatsoever.
9. MISCELLANEOUS PROVISIONS.
9.1. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns.
9.2. NOTICES. Any notice, consent or request to be given in connection with
any of the terms or provisions of this Agreement shall be in writing and shall
be sent by express mail or similar private courier service, by certified mail
(return receipt requested), by hand delivery or by facsimile transmission:
if to the Warrant Agent, to:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
if to the Company, to:
Tailwind Financial Inc.
BCE Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
11
in either case with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9.3. APPLICABLE LAW. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of
the State of New York, without giving effect to conflicts of law principles that
would result in the application of the substantive laws of another jurisdiction.
The Company hereby agrees that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be brought and
enforced in the courts of the State of New York or the United States District
Court for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any such process or summons to be served upon the Company
may be served by transmitting a copy thereof by registered or certified mail,
return receipt requested, postage prepaid, addressed to it at the address set
forth in Section 9.2 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or claim.
9.4. PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the registered holders of the
Warrants and, for the purposes of Sections 2.5, 6.1, 6.4, 7.4 and 9.2 hereof,
Deutsche Bank, any right, remedy, or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise, or agreement hereof.
Deutsche Bank shall be deemed to be a third-party beneficiary of this Agreement
with respect to Sections 2.5, 6.1, 6.4, 7.4 and 9.2 hereof. All covenants,
conditions, stipulations, promises, and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the parties hereto (and Deutsche
Bank with respect to the Sections 2.5, 6.1, 6.4, 7.4 and 9.2 hereof) and their
successors and assigns and of the registered holders of the Warrants.
9.5. EXAMINATION OF THE AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the office of the Warrant Agent in the
Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6. COUNTERPARTS. This Agreement may be executed in any number of
original or facsimile counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
9.7. EFFECT OF HEADINGS. The section headings herein are for convenience
only and are not part of this Agreement and shall not affect the interpretation
hereof.
9.8. AMENDMENTS. This Agreement may be amended by the parties hereto
without the consent of any registered holder for the purpose of curing any
ambiguity, or curing, correcting or
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supplementing any defective provision contained herein or adding or changing any
other provisions with respect to matters or questions arising under this
Agreement as the parties may deem necessary or desirable and that the parties
deem shall not adversely affect the interest of the registered holders. All
other modifications or amendments, including, but not limited to, any amendment
to increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of each of Deutsche Bank and the registered holders of a
majority of the then outstanding Warrants. Notwithstanding the foregoing, the
Company may lower the Warrant Price or extend the duration of the Exercise
Period in accordance with Sections 3.1 and 3.2 without such consent.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
TAILWIND FINANCIAL INC.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President