EXHIBIT 4.4
FORM OF WARRANT AGREEMENT
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Agreement made as of March ___, 2006 between North American Insurance
Leaders, Inc., a Delaware corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Company"), and Mellon Investor Services LLC, a
New Jersey limited liability company, with an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public
Offering") of units ("Units") and, in connection therewith, has determined to
issue and deliver up to (i) 12,500,000 warrants ("IPO Warrants") to the public
investors, with each IPO Warrant evidencing the right of the holder thereof to
purchase one share of common stock, par value $0.0001 per share, of the
Company's Common Stock ("Common Stock") for $6.00, subject to adjustment as
described herein and (ii) 750,000 warrants to CRT Capital Group LLC or its
designees ("Underwriter's Warrants"), with each such Underwriter's Warrant
evidencing the right of the holder thereof to purchase one share of Common Stock
for $7.50, subject to adjustment as described herein; and
WHEREAS, the Company has also determined to issue and deliver 1,700,000
rights to its officers and directors ("D&O Rights") which are automatically
converted into up to 5,100,000 warrants ("D&O Warrants") on the 120th day
following the effective date of the Public Offering, with each D&O Warrant
evidencing the right of the holder thereof to purchase one share of common
stock, par value $0.0001 per share, of the Company's Common Stock for $6.00,
subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement, No. 333-127871 on Form S-1 ("Registration
Statement") for the registration, under the Securities Act of 1933, as amended
("Act"), of, among other securities, the IPO Warrants and the Underwriter's
Warrants (collectively with the D&O Warrants, the "Warrants") and the Common
Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent
to act as agent for the Company for the Warrants in accordance with the express
terms and conditions (and no implied terms) of this Agreement, and the Warrant
Agent hereby accepts such
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appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
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2.1 Form of Warrant. Each Warrant shall be issued in registered
form only, shall be evidenced by, and subject to the terms of, the "Warrant
Certificate", which shall be in substantially the form of Exhibit A hereto, and
which shall include the subscription form to be printed on the reverse thereof,
with such changes, marks of identification or designation and legends, summaries
or endorsements printed thereon as the Company may deem appropriate but which do
not change the rights, duties or obligations of the Warrant Agent hereunder, and
as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or regulation made
pursuant thereto. The provisions of the Warrant Certificate are incorporated
herein and shall be signed by, or bear the facsimile signature of, (i) the
Chairman of the Board, the Chief Executive Officer, if one is so designated, or
President and (ii) Secretary or Assistant Secretary, if one is so designated, of
the Company ("Authorized Officers") and shall bear a facsimile of the Company's
seal. In the event the person whose facsimile signature has been placed upon any
Warrant Certificate shall have ceased to serve in the capacity in which such
person signed the Warrant Certificate before such Warrant Certificate is issued,
it may be issued with the same force and effect as if he or she had not ceased
to be such at the date of issuance and delivery by the Company.
2.2 Effect of Countersignature. The Warrant Certificates will be
executed on behalf of the Company by the manual or facsimile signature of its
Authorized Officers, attested by its Secretary or principal financial officer,
and delivered to the Warrant Agent. The Warrant Certificates will then be
countersigned by the Warrant Agent. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant Certificate shall be invalid
and of no effect for any purpose and may not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent is hereby authorized and
instructed to keep or cause to be kept, at the office of the Warrant Agent
designated for such purpose, the books ("Warrant Register"), for the
registration of original issuance and the registration of transfer of the
Warrant Certificates. Until a Warrant is transferred in the Warrant Register,
the Company and the Warrant Agent may treat the person in whose name the Warrant
is registered as the absolute owner thereof for all purposes, notwithstanding
any notice to the contrary. 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 the written instructions delivered to the Warrant Agent by the Company.
Neither the Company nor the Warrant Agent will be liable or responsible for any
registration or transfer of any Warrants that are registered or to be registered
in the name of a fiduciary or the nominee of a fiduciary.
2.3.2 Registered Holder. Prior to due presentment for registration
of transfer of any Warrant Certificate, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant Certificate shall be
registered upon the Warrant Register ("registered
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holder"), as the absolute owner of such Warrant Certificate 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 the earlier of five days after the
expiration or termination of the option of CRT Capital Group LLC, (the
"Underwriter") to purchase up to 1,875,000 additional Units to cover
over-allotments or exercise in whole by the Underwriter of such option but in no
event until the Company files a Current Report on Form 8-K which includes an
audited balance sheet reflecting the receipt by the Company of the gross
proceeds of the Public Offering including the proceeds received by the Company
from the exercise of the Underwriter's over-allotment option, if the
over-allotment option is exercised prior to the filing of the Form 8-K.
2.5 IPO Warrants, Underwriter's Warrants and D&O Warrants. The
Underwriter's Warrants shall have the same terms and be in the same form as the
IPO Warrants except with respect to the warrant price as set forth below in
Section 3.1. The D&O Warrants shall have the same terms and be in the same form
as the IPO Warrants except with respect to the transfer restrictions set forth
below in Section 5.6.
3. Terms and Exercise of Warrants
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3.1 Warrant Price. Each Warrant Certificate shall, when countersigned
by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Warrant Certificate and of this Warrant Agreement, to
purchase from the Company the number of shares of Common Stock stated therein,
at the price of $6.00 per whole share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1. Each
Underwriter's Warrant shall, when countersigned by the Warrant Agent, entitle
the registered holder thereof, subject to the provisions of such Underwriter's
Warrant and of this Warrant Agreement, to purchase from the Company the number
of shares of Common Stock stated therein, at the price of $7.50 per whole share,
subject to the adjustments provided in Section 4 hereof. The term "Warrant
Price" as used in this Warrant Agreement refers to the price per share at which
Common Stock may be purchased at the time a Warrant is exercised.
3.2 Duration of Warrants. A Warrant may be exercised only during the
period ("Exercise Period") commencing on the later of (i) the consummation by
the Company of a merger, capital stock exchange, asset acquisition, stock
purchase and/or other similar transaction with one or more insurance or
insurance services businesses in North America ("Business Combination") (as
described more fully in the Company's Registration Statement) or (ii)
_____________, 2007 and terminating at 5:00 p.m., New York City time on the
earlier to occur of (x) ________________, 2010 or (y) the date fixed for
redemption of the Warrants as provided in Section 6 of this Agreement
("Expiration Date"). Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company in its sole discretion may extend
the duration of the Warrants by delaying the
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Expiration Date, written notice of which will be delivered as soon as
practicable to the Warrant Agent.
3.3 Exercise of Warrants.
3.3.1 Payment. Subject to the provisions of the Warrant
Certificate and this Warrant Agreement, a Warrant Certificate, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company (or
as otherwise agreed to by the Company), the Warrant Price for each full share of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2 Issuance of Certificates. As soon as practicable after the
exercise of any Warrant and the clearance of the funds in payment of the Warrant
Price, the Company shall issue to the registered holder of such Warrant a
certificate or certificates for the number of full shares of Common Stock to
which he is entitled, registered in such name or names as may be directed by
him, her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant Certificate for the number of shares as to which such
Warrant shall not have been exercised. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant unless a registration statement under the Act with respect
to the Common Stock is effective. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which such exercise
would be unlawful.
3.3.3 Valid Issuance. All shares of Common Stock issued upon the
proper exercise of a Warrant in conformity with this Agreement shall be validly
issued, fully paid and non-assessable.
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.
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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.
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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 Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to
the nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
4.4 Replacement of Securities upon Reorganization. In case of any
reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such shares of Common Stock), or in the case of any merger or
consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or reorganization of the
outstanding shares of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the assets or other property of the Company as
an entirety or substantially as an entirety in connection with which the Company
is dissolved, the Warrant holders shall thereafter have the right to purchase
and receive, upon the basis and upon the terms and conditions specified in the
Warrant Certificates and in lieu of the shares of Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 Notices of Changes in Warrant. Upon every adjustment of the Warrant
Price or the number or kind of shares issuable upon exercise of a Warrant, the
Company shall give written notice thereof as soon as practicable 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 a
brief statement of the facts requiring the adjustments and the method of
calculation upon which the adjustments are based. The notice shall be conclusive
evidence of the correctness of the adjustments and the Warrant Agent may rely on
it for all purposes. The Warrant Agent will not be deemed to have any notice of
any said adjustment prior to receiving such notice. Notwithstanding anything to
the contrary contained herein, the Warrant Agent shall have no duty
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or obligation to (i) determine if any adjustments are warranted hereunder, or
(ii) investigate or confirm whether the information contained in such notice
complies with the terms of this Agreement or any other document, or is accurate
and correct. Upon the occurrence of any event specified in Sections 4.1, 4.2,
4.3 or 4.4, then, in any such event, the Company shall give written notice to
the Warrant holder, at the last address set forth for such holder in the warrant
register, of the record date or the effective date of the event. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such event.
4.6 No Fractional Shares. Notwithstanding any provision contained in
this Warrant Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant holder.
4.7 Form of Warrant. The form of Warrant Certificate need not be
changed because of any adjustment pursuant to this Section 4, and Warrant
Certificates issued after such adjustment may state the same Warrant Price and
the same number of shares as is stated in the Warrant Certificates 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 Certificate that the
Company may deem appropriate and that does not affect the substance thereof,
written notice of which shall be delivered as soon as practicable to the Warrant
Agent, and any Warrant thereafter issued or countersigned, whether in exchange
or substitution for an outstanding Warrant or otherwise, may be in the form as
so changed.
5. Transfer and Exchange of Warrants.
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5.1 Registration of Transfer. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant Certificate upon the
Warrant Register, upon surrender of such Warrant Certificate for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate written instructions for transfer. Upon any such transfer, a new
Warrant Certificate representing an equal aggregate number of Warrants shall be
issued and the old Warrant Certificate shall be cancelled by the Warrant Agent.
The Warrant Certificates 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. Warrant Certificates 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 Warrant Certificates 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 Certificate surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant Certificate and issue new Warrant Certificates 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 Warrant
Certificates must also bear a restrictive legend.
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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 to a registered holder shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
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 Warrant Certificates 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 Warrant Certificates duly executed on
behalf of the Company for such purpose.
5.6 D&O Warrants. Notwithstanding anything herein to the contrary, the
Warrant Agent shall not register for transfer any D&O Warrants until after the
later of one year or the consummation of an initial business combination, except
for (a) transfers resulting from the death of any of the purchasers, (b)
transfers by operation of law, (c) any transfer for estate planning purposes to
persons immediately related to the transferor by blood, marriage or adoption, or
(d) transfers to any trust solely for the benefit of such transferor and/or the
persons described in the preceding clause.
6. Redemption.
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6.1 Redemption. Subject to Section 6.4 hereof, not less than all of the
outstanding Warrants may be redeemed, at the option of the Company, at any time
after they become exercisable and prior to their expiration, at the office of
the Warrant Agent, upon the notice referred to in Section 6.2, at the price of
$0.01 per Warrant ("Redemption Price"), provided that the last sales price of
the Common Stock on the AMEX, OTC Bulletin Board or other applicable trading
facility has been at least $11.50 per share, on each of twenty (20) trading days
within any thirty (30) trading day period ending on the third business day prior
to the date on which notice of redemption is given.
6.2 Date Fixed for, and Notice of, Redemption. In the event the Company
shall elect to redeem all of the Warrants, the Company shall fix a date for the
redemption. Notice of redemption shall be mailed by first class mail, postage
prepaid, by the Company not less than 30 days prior to the date fixed for
redemption to the Warrant Agent and to the registered holders of the Warrants,
to be redeemed at their last addresses as they shall appear on the registration
books. Any notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the registered holder received
such notice.
6.3 Exercise After Notice of Redemption. The Warrants may be exercised
in accordance with Section 3 of this Agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 6.2 hereof
and prior to the time and date fixed for redemption. On and after the redemption
date, the record holder of the Warrants shall have no further rights except to
receive, upon surrender of the Warrants, the Redemption Price.
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6.4 Outstanding Warrants Only. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption is met.
7. Other Provisions Relating to Rights of Holders of Warrants.
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7.1 No Rights as Stockholder. Nothing contained in this Agreement or in
the Warrant Certificate will be construed as conferring upon the registered
holder thereof or their transferees 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. Upon (a) receipt by
the Company and the Warrant Agent of (i) evidence satisfactory to the Company
and the Warrant Agent of the loss, theft, mutilation, or destruction of a
Warrant Certificate and (ii) security or indemnity as may be satisfactory to the
Company or the Warrant Agent, and (b) surrender to the Warrant Agent and
cancellation of the Warrant Certificate if mutilated, the Company will prepare,
execute and deliver a new Warrant Certificate of like denomination, tenor, and
dated as of such cancellation to the Warrant Agent and the Warrant Agent will
countersign and deliver the new Warrant Certificate to the holder in lieu of the
Warrant Certificate so lost, stolen, mutilated or destroyed.
7.3 Cancellation and Destruction of Warrant Certificates. All Warrant
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange will, if surrendered to the Company, be delivered to the
Warrant Agent for cancellation or in canceled form, or, if surrendered to the
Warrant Agent, will be canceled by the Warrant Agent, and no Warrant
Certificates will be issued in lieu thereof except as expressly permitted by
this Agreement. The Company will deliver to the Warrant Agent for cancellation
and retirement, and the Warrant Agent will so cancel and retire, any other
Warrant Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Warrant Agent will destroy such canceled and retired
Warrant Certificates and notify the Company of the destruction of such Warrant
Certificates.
7.4 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.
7.5 Registration of Common Stock. The Company agrees that prior to the
commencement of the Exercise Period, it shall file with the Securities and
Exchange Commission a post-effective amendment to the Registration Statement, or
a new registration statement, for the registration, under the Act, of, and it
shall take such action as is necessary to qualify for sale, in those states in
which the Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company will use its
commercially reasonable efforts to cause the same to become effective and to
maintain the
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effectiveness of such registration statement until the expiration of the
Warrants in accordance with the provisions of this Agreement.
8. Concerning the Warrant Agent and Other Matters.
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8.1.1 Compensation. The Company will pay to the Warrant Agent
reasonable compensation for all services rendered by it hereunder, which shall
not be pro-rated for partial terms and will reimburse the Warrant Agent for all
reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses) incurred by the Warrant Agent in connection with the preparation,
delivery, administration, execution and amendment of this Agreement and the
exercise and performance of its duties hereunder. The Company will indemnify the
Warrant Agent for, and hold it harmless against, any loss, liability, suit,
action, proceeding, damage, judgment, claim, settlement, cost or expense,
incurred without gross negligence, bad faith or willful misconduct (as each is
determined by a final non-appealable order of a court of competent jurisdiction)
on the part of the Warrant Agent, for any action taken, suffered or omitted by
the Warrant Agent in connection with the acceptance and administration of this
Agreement (collectively, "Losses"), including the costs and reasonable expenses
of defending against any claim of liability arising therefrom, directly or
indirectly, except in each case for Losses that arise out of or in connection
with any gross negligence, bad faith or willful misconduct by the Warrant Agent
or its agents or representatives. The Warrant Agent shall not be obligated to
expend or risk its own funds or to take any action which it believes would
expose it to expense or liability or to a risk of incurring expense or
liability, unless it has been furnished with assurances of repayment or
indemnity reasonably satisfactory to it.
8.1.2 Liability. The Warrant Agent shall be liable hereunder only
for its own gross negligence, bad faith or willful misconduct (as each is
determined by a final non-appealable order of a court of competent
jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no
event shall the Warrant Agent be liable for special, punitive, incidental,
indirect 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 such loss or damage and regardless of the form of the action. Any
liability of the Warrant Agent under this Agreement shall be limited to the
amount of fees paid by the Company to the Warrant Agent.
8.1.3 Reliance on Warrant Certificates. The Warrant Agent will be
protected and will incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of this
Agreement in reliance upon any Warrant Certificate or certificate evidencing
Common Stock or other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, other paper or document reasonably believed by
it to be genuine and to be signed, executed and, where necessary, verified or
acknowledged by the proper person or persons. The provisions of and rights and
obligations contained in this Section 8.1.3 shall survive the termination of
this Agreement and/or the Warrants and the resignation, replacement or removal
of the Warrant Agent.
8.2 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
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issuance or delivery of shares of Common Stock upon the exercise of Warrants.
Notwithstanding the foregoing, neither the Company nor the Warrant Agent will be
required to pay any tax or other governmental charge that may be payable in
connection with any split up, further transfer, combination, exercise or
exchange of Warrants or Warrant Certificates in any name other than that of the
holder thereof. The Warrant Agent shall have no duty or obligation to take any
action under any Section of this Agreement which requires the payment by a
holder of applicable taxes or governmental charges unless and until the Warrant
Agent is satisfied that all such taxes and/or charges are paid.
8.3 Resignation, Consolidation, or Merger of Warrant Agent.
8.3.1 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 thirty
(30) days' notice in writing to the Company. If the office of the Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor warrant agent in place of the Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant Certificate (who shall, with
such notice, submit his Warrant Certificate for inspection by the Company), then
the holder of any Warrant Certificate 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 or other
entity organized and existing under the laws of the State of New York, in good
standing and having an office in the Borough of Manhattan, City and State of New
York, and subject to supervision or examination by federal or state authority.
After appointment, any successor warrant agent shall be vested with all the
authority, powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such
successor warrant agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor warrant
agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming
to such successor warrant agent all such authority, powers, rights, immunities,
duties, and obligations.
8.3.2 Notice of Successor Warrant Agent. In the event a successor
warrant agent shall be appointed, the Company shall file notice thereof in
writing with the predecessor Warrant Agent and each transfer agent for the
Common Stock not later than the effective date of any such appointment. Failure
to give any notice provided for in this Section 8.3.2, however, or any defect
therein, will not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent, as the
case may be.
8.3.3 Merger or Consolidation or Change of Name of Warrant Agent.
Any person or entity into which the Warrant Agent or any successor warrant agent
may be merged or with which it may be consolidated, or any person or entity
resulting from any merger or consolidation to which the Warrant Agent or any
successor warrant agent shall be a party shall
10
be the successor warrant agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
8.4 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.
8.5 Duties and Obligations of Warrant Agent.
8.5.1 The Warrant Agent undertakes only the duties and obligations
expressly imposed by this Agreement upon the following terms and conditions, by
all of which the Company and the holders, by their acceptance of Warrant
Certificates, will be bound.
8.5.2 The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Company or an employee of the Warrant Agent), and the
advice or opinion of such counsel will be full and complete authorization and
protection to the Warrant Agent as to any action taken, suffered or omitted by
it in good faith and in accordance with such advice or opinion.
8.5.3 Whenever in the performance of its duties under this Warrant
Agreement, the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the President or Chairman of the
Board of the Company and delivered to the Warrant Agent. The Warrant Agent may
rely upon such statement for any action taken or suffered in good faith by it
pursuant to the provisions of this Agreement.
8.5.4 The Warrant Agent shall not be liable and shall be fully
protected in acting upon any written notice, instruction, direction, request or
other communication which the Warrant Agent reasonably believes to be genuine,
and shall have no duty to inquire into or investigate the validity, accuracy or
content thereof. The Warrant Agent shall not take any instructions or directions
except those given in accordance with this Warrant Agreement.
8.5.5 The Warrant Agent will not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Warrant Certificates or be required to verify same, and all such statements and
recitals are and will be deemed to have been made by the Company only.
8.5.6 The Warrant Agent shall have no responsibility or liability
with respect to the validity of this Agreement or with respect to the validity
or execution of any Warrant Certificate (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant Certificate; 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
11
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant Certificate or as to whether any shares of Common Stock
will, when issued, be validly authorized and issued, fully paid and
non-assessable.
8.5.7 The Warrant Agent and any member, stockholder, director,
officer or employee of the Warrant Agent 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 any affiliate thereof or otherwise act as fully and
freely as though it were not Warrant Agent under this Agreement. Nothing herein
will preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
8.5.8 The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, accountants, agents or other experts, and the Warrant
Agent will not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company or the
holders of Warrants resulting from any such act, default, neglect or misconduct,
absent gross negligence or bad faith (as each is determined by a final
non-appealable order of a court of competent jurisdiction) in the selection and
continued employment thereof.
8.5.9 The Warrant Agent will not be under any duty or
responsibility to insure compliance with any applicable federal or state
securities laws in connection with the issuance, transfer or exchange of Warrant
Certificates.
8.5.10 The Warrant Agent shall have no duties, responsibilities or
obligations as the Warrant Agent except those which are expressly set forth
herein, and in any modification or amendment hereof to which the Warrant Agent
has consented in writing, and no duties, responsibilities or obligations shall
be implied or inferred. Without limiting the foregoing, unless otherwise
expressly provided in this Agreement, the Warrant Agent shall not be subject to,
nor be required to comply with, or determine if any person or entity has
complied with, the Warrant Certificate or any other agreement between or among
the parties hereto, even though reference thereto may be made in this Warrant
Agreement, or to comply with any notice, instruction, direction, request or
other communication, paper or document other than as expressly set forth in this
Warrant Agreement.
8.5.11 The Warrant Agent shall not incur any liability for not
performing any act, duty, obligation or responsibility by reason of any
occurrence beyond the control of the Warrant Agent (including without limitation
any act or provision of any present or future law or regulation or governmental
authority, any act of God, war, civil disorder or failure of any means of
communication).
8.5.12 In the event the Warrant Agent believes any ambiguity or
uncertainty exists hereunder or in any notice, instruction, direction, request
or other communication, paper or document received by the Warrant Agent
hereunder, Warrant Agent may, in its sole discretion, refrain from taking any
action, and shall be fully protected and shall not be liable in any way to the
Company or any holder or other person or entity for refraining from taking such
action,
12
unless the Warrant Agent receives written instructions signed by the Company
which eliminates such ambiguity or uncertainty to the satisfaction of Warrant
Agent; provided that the Warrant Agent has attempted to promptly seek
clarification from the Company in writing regarding such uncertainty or
ambiguity and such uncertainty or ambiguity continues.
8.5.13 The Warrant Agent shall waive any right, title, interest or
claim of any kind in or to any monies to be deposited and held in the trust
account by JPMorgan Chase Bank, NA, as trustee, for the benefit of the public
stockholders of the Company's common stock issued in the initial public
offering.
8.5.14 The rights and obligations contained in this Section shall
survive the termination of this Warrant Agreement and the resignation or removal
of the Warrant Agent.
8.6 Acceptance of Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and among other things, shall account promptly to
the Company with respect to Warrants exercised and concurrently account for, and
pay to the Company, all moneys received by the Warrant Agent for the purchase of
shares of the Company's Common Stock through the exercise of Warrants.
9. Representations and Warranties of the Company. The Company hereby represents
and warrants to the Warrant Agent that:
9.1 The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to execute, deliver and perform its obligations
hereunder and to consummate the transactions contemplated hereby;
9.2 The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company;
9.3 The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby in accordance with the terms hereof will not conflict with, violate or
constitute a breach of any material contract, agreement or instrument by which
the Company is bound or any judgment, order, decree, law, statute, rule,
regulation or other judicial or governmental restriction to which the Company is
subject;
9.4 This Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally; and
9.5 The Warrants, when issued and delivered to the initial holders as
provided in this Agreement, and the Warrant shares issued upon exercise of the
Warrants, when issued, paid for and delivered as provided in this Agreement,
will be validly issued, fully paid and non-assessable.
13
9.6 The Company will 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 by the Warrant Agent of the provisions
of this Agreement.
10. Miscellaneous Provisions.
-------------------------
10.1 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, but will not be
assignable or delegable by any party without the prior written consent of the
other parties. In the absence of such prior written consent, any purported
assignment or delegation of any right or obligation hereunder will be null and
void.
10.2 Notices. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any Warrant to or on the Company shall be sufficiently given when so delivered
if by hand or overnight delivery or if sent by certified mail or private courier
service within five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
North American Insurance Leaders, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. de Jonge
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Mellon Investor Services LLC
Newport Office Center VII
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Relationship Management
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Mellon Investor Services LLC
Newport Office Center VII
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 0
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14
in either case with a copy to:
Shearman & Sterling LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.3 Applicable Law. This Agreement shall for all purposes be deemed to
be made under and shall be construed in accordance with the laws of the State of
New York. 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 10.2 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or claim.
10.4 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 entity other than the parties hereto and the registered holders of the
Warrants and, for the purposes of Sections 6.1, 6.4, 7.5 and 10.2 hereof,
Underwriter, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. Underwriter shall be deemed to be a third-party beneficiary of this
Agreement with respect to Sections 6.1, 6.4, 7.5 and 10.2 hereof. All covenants,
conditions, stipulations, promises, and agreements contained in this Warrant
Agreement shall be for the sole and exclusive benefit of the parties hereto (and
Underwriter with respect to the Sections 6.1, 6.4, 7.5 and 10.2 hereof) and
their successors and assigns and of the registered holders of the Warrants.
10.5 Examination of the Warrant Agreement. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant Certificate for inspection by it.
10.6 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.
10.7 Effect of Headings. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
15
10.8 Certain Interpretive Matters. Unless the context otherwise
requires, (i) all references to Sections are to Sections of or to this
Agreement, (ii) each term defined in this Agreement has the meaning assigned to
it, (iii) "or" is disjunctive but not necessarily exclusive, and (iv) words in
the singular include the plural and vice versa. All references to dollar amounts
are to lawful currency of the United States of America.
10.9 Amendment and Waiver. No failure or delay of the holder in
exercising any power or right hereunder (other than a failure to exercise
Warrants in accordance with the provisions hereof) will operate as a waiver
thereof, nor will any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice or demand on the Company in any case will entitle the
Company to any other or future notice or demand in similar or other
circumstances. Subject to the last sentence of this Section, (a) the Company and
the Warrant Agent may supplement or amend this Agreement without the approval of
any Holders in order to cure any ambiguity or correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein, (b) the Company and the Warrant Agent may from time to time
supplement or amend this Agreement, with the consent of holders of at least 50%
of the Warrants then outstanding, for any other purpose and (c) the Warrant
Agent may, but shall not be obligated to, execute any amendment or supplement
which affects the rights or the duties or obligations of the Warrant Agent.
Notwithstanding anything to the contrary herein, upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this Section
and, provided such supplement or amendment does not change the Warrant Agent's
rights, duties, liabilities or obligations hereunder, the Warrant Agent shall
execute such supplement or amendment. Any amendment, modification or waiver
effected pursuant to and in accordance with the provisions of this Section will
be binding upon all holders and upon each future holder, the Company and the
Warrant Agent. In the event of any amendment, modification or waiver, the
Company will give prompt notice thereof to all holders and, if appropriate,
notation thereof will be made on all Warrant Certificates thereafter surrendered
for registration of transfer or exchange.
10.10 Entire Agreement. This Agreement constitutes the entire Agreement
among the parties hereto with respect to the subject matter hereof, and there
are no agreements among the parties hereto with respect thereto except as
expressly set forth herein.
10.11 Severability. In case any provision contained in this Agreement
is invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.
The Company and the Warrant Agent will endeavor in good faith to replace the
invalid, illegal or unenforceable provisions with valid, legal and enforceable
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
[Signature page follows.]
16
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Attest: NORTH AMERICAN INSURANCE LEADERS, INC.
By:
-------------------------- ---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. de Jonge
Title: President
Attest: MELLON INVESTOR SERVICES LLC
as Warrant Agent
By:
-------------------------- ---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Client Relationship Executive
WARRANT AGREEMENT