EXHIBIT 4.4
WARRANT AGREEMENT
Agreement made as of ___________ , 2005 between Viceroy Acquisition
Corporation, a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), and Continental Stock Transfer &
Trust Company, a New York corporation, with offices 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 23,000,000 Warrants ("Public Warrants") to the investors in the
Public Offering, each of such Public Warrants evidencing the right of the holder
thereof to purchase one share of common stock, par value $.0001 per share, of
the Company's Common Stock ("Common Stock") for $6.00, subject to adjustment as
described herein, and (ii) 1,000,000 Warrants to The Shemano Group, Inc.
("Shemano") or its designees ("Representative's Warrants" and, together with the
Public Warrants, the "Warrants"), each such Representative's Warrant evidencing
the right of the holder thereof to purchase one share of Common Stock for $7.50,
subject to adjustments as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
a Registration Statement, No. _________ on Form S-1 (as the same may be amended
from time to time) ("Registration Statement") for the registration, under the
Securities Act of 1933, as amended ("Act") of, among other securities, the
Warrants and the Common Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be issued in registered
form only, shall be in substantially the form of EXHIBIT A hereto, the
provisions of which are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board or Chief Executive Officer,
Secretary or Assistant Secretary of the Company and shall bear a facsimile of
the Company's seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance. All of the Warrants shall initially be represented by one or more
book-entry certificates (each a "Book-Entry Warrant Certificate").
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.
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2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books
("Warrant Register"), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company. All
of the Warrants shall initially be represented by one or more Book-Entry Warrant
Certificate deposited with The Depository Trust Company (the "Depository") and
registered in the name of Cede & Co., a nominee of the Depository. Ownership of
beneficial interests in the Warrants shall be shown on, and the transfer of such
ownership shall be effected through, records maintained by (i) the Depository or
its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that
have accounts with the Depository (such institution, with respect to a Warrant
in its account, a "Participant").
If the Depository subsequently ceases to make its book-entry settlement
system available for the Warrants, the Company may instruct the Warrant Agent
regarding making other arrangements for book-entry settlement. In the event that
the Warrants are not eligible for, or it is no longer necessary to have the
Warrants available in, book-entry form, the Warrant Agent shall provide written
instructions to the Depository to deliver to the Warrant Agent for cancellation
of each Book-Entry Warrant Certificate, and the Company shall instruct the
Warrant Agent to deliver to the Depository definitive Warrant Certificates in
physical form evidencing such Warrants. Such definitive Warrant Certificates
shall be in the form annexed hereto as EXHIBIT A with appropriate insertions,
modifications and omissions, as provided above.
2.3.2 Beneficial Owner; Registered Holder. The term
"beneficial owner" shall mean, on or after the Detachment Date, any person in
whose name ownership of a beneficial interest in the Warrants evidenced by a
Book-Entry Certificate is recorded in the records maintained by the Depository
or its nominee, and prior to the Detachment Date, the person in whose name the
Unit to which Warrant Certificate was initially attached as registered upon the
register relating to such Units. 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 Shemano informs the Company of its decision to allow earlier separate
trading (the "Detachment Date"), but in no event will separate trading of the
securities comprising the Units be allowed 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 net proceeds of the Public Offering including the
proceeds received by the Company from the exercise of the underwriter's
over-allotment option, if the over-allotment option is exercised prior to the
filing of the Form 8-K.
2.5 Warrants and Representative's Warrants. The Representative's
Warrants shall have the same terms and be in the same form as the Public
Warrants except with respect to the Warrant Price as set forth below in Section
3.1.
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Public Warrant shall, when countersigned
by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Public Warrant and of this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the
price of $6.00 per whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. Each Representative's
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Representative's Warrant and
of this Warrant Agreement, to purchase from the Company the number of shares of
Common Stock stated therein, at the price of $7.50 per whole share, subject to
the adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term "Warrant Price" as used in this Warrant Agreement refers
to the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date.
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3.2 Duration of Warrants. A Warrant may be exercised only during
the period ("Exercise Period") commencing on the later of the consummation by
the Company of a merger, capital stock exchange, asset acquisition or other
similar business combination ("Business Combination") (as described more fully
in the Company's Registration Statement) or ___________ , 2006 and terminating
at 5:00 p.m., New York City time on the earlier to occur of (i) ___________,
2009 or (ii) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement ("Expiration Date"). Except with respect to the
right to receive the Redemption Price (as set forth in Section 6 hereunder),
each Warrant not exercised on or before the Expiration Date shall become void,
and all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company in its
sole discretion may extend the duration of the Warrants by delaying the
Expiration Date.
3.3 Exercise of Warrants. A registered holder may exercise a
Warrant by delivering not later than 5:00 P.M., New York time, on any Business
Day (defined as any day that is not a Saturday or Sunday and is not a United
States federal holiday or a day on which banking institutions generally are
authorized or obligated by law or regulation to close in New York) during the
Exercise Period (the "Exercise Date") to the Warrant Agent at its corporate
trust department (i) the Warrant Certificate evidencing the Warrants to be
exercised, or, in the case of a Book-Entry Warrant Certificate, the Warrants to
be exercised (the "Book-Entry Warrants") free on the records of the Depository
to an account of the Warrant Agent at the Depository designated for such purpose
in writing by the Warrant Agent to the Depository from time to time, (ii) an
election to purchase the shares underlying the Warrants to be exercised
("Election to Purchase"), properly completed and executed by the registered
holder on the reverse of the Warrant Certificate or, in the case of a Book-Entry
Warrant Certificate, properly delivered by the Participant in accordance with
the Depository's procedures, and (iii) the Exercise Price for each Warrant to be
exercised in lawful money of the United States of America by certified or
official bank check or by bank wire transfer in immediately available funds. If
any of (A) the Warrant Certificate or the Book-Entry Warrants, (B) the Election
to Purchase, or (C) the Exercise Price therefor, is received by the Warrant
Agent after 5:00 P.M., New York time, on the specified Exercise Date, the
Warrants will be deemed to be received and exercised on the Business Day next
succeeding the Exercise Date. If the date specified as the Exercise Date is not
a Business Day, the Warrants will be deemed to be received and exercised on the
next succeeding day that is a Business Day. If the Warrants are received or
deemed to be received after the Expiration Date, the exercise thereof will be
null and void and any funds delivered to the Warrant Agent will be returned to
the holder or Participant, as the case may be, as soon as practicable. In no
event will interest accrue on funds deposited with the Warrant Agent in respect
of an exercise or attempted exercise of Warrants. The validity of any exercise
of Warrants will be determined by the Company in its sole discretion and such
determination will be final and binding upon the holder and the Warrant Agent.
Neither the Company nor the Warrant Agent shall have any obligation to inform a
holder of the invalidity of any exercise of Warrants.
The Warrant Agent shall deposit all funds received by it in payment of the
Exercise Price in the account of the Company maintained with the Warrant Agent
for such purpose and shall advise the Company at the end of each day on which
the funds for the exercise of the Warrants are received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(a) The Warrant Agent shall, by 11:00 A.M., New York time,
on the Business Day following the Exercise Date of any Warrant, advise the
Company and the transfer agent in respect of (a) the shares of Common Stock (the
"Shares") issuable upon such exercise as to the number of Warrants exercised in
accordance with the terms and conditions of this Agreement, (b) the instructions
of each registered holder or Participant, as the case may be, with respect to
delivery of the Shares issuable upon such exercise, and the delivery of
definitive Warrant Certificates, as appropriate, evidencing the balance, if any,
of the Warrants remaining after such exercise, (c) in case of a Book-Entry
Warrant Certificate, the notation that shall be made to the records maintained
by the Depository, its nominee for each Book-Entry Warrant Certificate, or a
Participant, as appropriate, evidencing the balance, if any, of the Warrants
remaining after such exercise and (d) such other information as the Company or
such transfer agent and registrar shall reasonably require.
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(b) The Company shall, by 5:00 P.M., New York time, on
the third Business Day next succeeding the Exercise Date of any Warrant and the
clearance of the funds in payment of the Warrant Price, execute, issue and
deliver to the Warrant Agent, the Shares to which such holder is entitled, in
fully registered form, registered in such name or names as may be directed by
such holder or the Participant, as the case may be. Upon receipt of such Shares,
the Warrant Agent shall, by 5:00 P.M., New York time, on the fifth Business Day
next succeeding such Exercise Date, transmit such Shares, to or upon the order
of the holder or Participant, as the case may be.
In lieu of delivering physical certificates representing the Shares
issuable upon exercise, provided the Company's transfer agent is participating
in the Depository Fast Automated Securities Transfer program, the Company shall
use its reasonable best efforts to cause its transfer agent to electronically
transmit the Shares issuable upon exercise to the registered holder or
Participant by crediting the account of the registered holder's prime broker
with Depository or of the Participant through its Deposit Withdrawal Agent
Commission system. The time periods for delivery described in the immediately
preceding paragraph shall apply to the electronic transmittals described herein.
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.
(c) The accrual of dividends, if any, on the Shares issued upon the valid
exercise of any Warrant will be governed by the terms generally applicable to
the Shares. From and after the issuance of such Shares, the former holder of the
Warrants exercised will be entitled to the benefits generally available to other
holders of Shares and such former holder's right to receive payment of dividends
and any other amounts payable in respect of the Shares shall be governed by, and
shall be subject to, the terms and provisions generally applicable to such
Shares.
(d) Warrants may be exercised only in whole numbers of
Warrants. No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common Stock to be
issued shall be rounded up to the nearest whole number. If fewer than all of the
Warrants evidenced by a Warrant Certificate are exercised, a new Warrant
Certificate for the number of Warrants remaining unexercised shall be executed
by the Company and countersigned by the Warrant Agent as provided in Section 2
hereof, and delivered to the holder of this Warrant Certificate at the address
specified on the books of the Warrant Agent or as otherwise specified by such
registered holder. If fewer than all the Warrants evidenced by a Book-Entry
Warrant Certificate are exercised, a notation shall be made to the records
maintained by the Depository, its nominee for each Book-Entry Warrant
Certificate, or a Participant, as appropriate, evidencing the balance of the
Warrants remaining after such exercise.
(e) The Company shall not be required to pay any stamp or
other tax or governmental charge required to be paid in connection with any
transfer involved in the issue of the Shares upon the exercise of Warrants; and
in the event that any such transfer is involved, the Company shall not be
required to issue or deliver any Shares until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
3.4 Valid Issuance. All shares of Common Stock issued upon the
proper exercise of a Warrant in conformity with this Agreement shall be validly
issued, fully paid and nonassessable.
3.5 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.
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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 Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to
the nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
4.4 Replacement of Securities upon Reorganization, etc. In case of
any reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such shares of Common Stock), or in the case of any merger or
consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or reorganization of the
outstanding shares of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the assets or other property of the Company as
an entirety or substantially as an entirety in connection with which the Company
is dissolved, the Warrant holders shall thereafter have the right to purchase
and receive, upon the basis and upon the terms and conditions specified in the
Warrants and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of shares of stock or other securities
or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 Notices of Changes in Warrant. Upon every adjustment of the
Warrant Price or the number of shares issuable upon exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any
such event, the Company shall give written notice to the Warrant holder, at the
last address set forth for such holder in the warrant register, of the record
date or the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such event.
4.6 No Fractional Shares. Notwithstanding any provision contained
in this Warrant Agreement to the contrary, the Company shall not issue
fractional shares upon exercise of Warrants. If, by reason of any adjustment
made pursuant to this Section 4, the holder of any Warrant would be entitled,
upon the exercise of such Warrant, to receive a fractional interest in a share,
the Company shall, upon such exercise, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant holder.
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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.
5. Transfer and Exchange of Warrants.
5.1 Transfer of Warrants. Prior to the Detachment Date, Warrants
may be transferred or exchanged only together with the Unit in which such
Warrant is included, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Unit. Furthermore, prior to the Detachment
Date, each transfer of a Unit on the register relating to such Units shall
operate also to transfer the Warrants included in such Unit. From and after the
Detachment Date, this Section 5.1 shall be of no further force and effect.
5.2 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.
5.3 Procedure for Surrender of Warrants. Warrants may be
surrendered to the Warrant Agent, together with a written request for exchange
or transfer, and thereupon the Warrant Agent shall issue in exchange therefor
one or more new Warrants as requested by the registered holder of the Warrants
so surrendered, representing an equal aggregate number of Warrants; provided,
however, that except as otherwise provided herein or in any Book-Entry Warrant
Certificate, each Book-Entry Warrant Certificate may be transferred only in
whole and only to the Depository, to another nominee of the Depository, to a
successor depository or to a nominee of a successor depository; provided
further, 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. Upon
any such registration of transfer, the Company shall execute, and the Warrant
Agent shall countersign and deliver, in the name of the designated transferee a
new Warrant Certificate or Warrant Certificates of any authorized denomination
evidencing in the aggregate a like number of unexercised Warrants.
5.4 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.
5.5 Service Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.6 Warrant Execution and Countersignature. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms of
this Agreement, the Warrants required to be issued pursuant to the provisions of
this Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
6. Redemption.
6.1 Redemption. Subject to Section 6.4 hereof, not less than all
of the outstanding Warrants may be redeemed, at the option of the Company, at
any time after they become exercisable and prior to their expiration, at the
office of the Warrant Agent, upon the notice referred to in Section 6.2, at the
price of $.01 per Warrant ("Redemption Price"), provided that the last sales
price of the Common Stock has been at least $11.50 per share, on each of twenty
(20) trading days within a thirty (30) trading day period ending on the third
Business Day prior to the date on which notice of redemption is given. The
provisions of this Section 6.1 may not be modified, amended or deleted without
the prior written consent of Shemano.
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6.2 Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption. Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than 30 days prior to the date fixed
for redemption to the registered holders of the Warrants to be redeemed at their
last addresses as they shall appear on the registration books. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder received such notice.
6.3 Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the time and date fixed for redemption. On and after the
redemption date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Outstanding Warrants Only. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption is met. The provisions
of this Section 6.4 may not be modified, amended or deleted without the prior
written consent of Shemano.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1 No Rights as Stockholder. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter.
7.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity or otherwise as they may in their discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 Reservation of Common Stock. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 Registration of Common Stock. The Company agrees that prior to
the commencement of the Exercise Period, it shall file with the Securities and
Exchange Commission a post-effective amendment to the Registration Statement, or
a new registration statement, for the registration, under the Act, of, and it
shall take such action as is necessary to qualify for sale, in those states in
which the Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company will use its
best efforts to cause the same to become effective and to maintain the
effectiveness of such registration statement until the expiration of the
Warrants in accordance with the provisions of this Agreement. The provisions of
this Section 7.4 may not be modified, amended or deleted without the prior
written consent of Shemano.
8. Concerning the Warrant Agent and Other Matters.
8.1 Payment of Taxes. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay any transfer
taxes in respect of the Warrants or such shares.
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8.2 Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment of Successor Warrant Agent. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after
giving sixty (60) days' notice in writing to the Company. If the office of
the Warrant Agent becomes vacant by resignation or incapacity to act or
otherwise, the Company shall appoint in writing a successor Warrant Agent
in place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in
writing of such resignation or incapacity by the Warrant Agent or by the
holder of the Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then the holder of any Warrant may apply to
the Supreme Court of the State of New York for the County of New York for
the appointment of a successor Warrant Agent at the Company's cost. Any
successor Warrant Agent, whether appointed by the Company or by such
court, shall be a corporation organized and existing under the laws of the
State of New York, in good standing and having its principal office in the
Borough of Manhattan, City and State of New York, and authorized under
such laws to exercise corporate trust powers and subject to supervision or
examination by federal or state authority. After appointment, any
successor Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties, and obligations of its predecessor Warrant
Agent with like effect as if originally named as Warrant Agent hereunder,
without any further act or deed; but if for any reason it becomes
necessary or appropriate, the predecessor Warrant Agent shall execute and
deliver, at the expense of the Company, an instrument transferring to such
successor Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor
Warrant Agent the Company shall make, execute, acknowledge, and deliver
any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2 Notice of Successor Warrant Agent. In the event a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the
Common Stock not later than the effective date of any such appointment.
8.2.3 Merger or Consolidation of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it
may be consolidated or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party shall be the
successor Warrant Agent under this Agreement without any further act.
8.3 Fees and Expenses of Warrant Agent.
8.3.1 Remuneration. The Company agrees to pay the Warrant
Agent 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 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.
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8.4.2 Indemnity. The Warrant Agent shall be liable hereunder
only for its own negligence, willful misconduct or bad faith. The Company
agrees to indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel fees,
for anything done or omitted by the Warrant Agent in the execution of this
Agreement except as a result of the Warrant Agent's negligence, willful
misconduct, or bad faith.
8.4.3 Exclusions. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with
respect to the validity or execution of any Warrant (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Warrant; nor shall it be responsible to make any adjustments required
under the provisions of Section 4 hereof or responsible for the manner,
method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment; nor shall it by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Agreement or any Warrant or as to whether any
shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 Acceptance of Agency. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
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 Fund (as defined in that certain Investment Management Trust Agreement,
dated as of the date hereof, by and between the Company and the Warrant Agent),
and hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for any Claim against the Trust Fund 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, 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:
Viceroy Acquisition Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
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:
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Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Compliance Department
with a copy in each case to:
Blank Rome LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
and
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and
The Shemano Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
9.3 Applicable law. The validity, interpretation, and performance
of this Agreement and of the Warrants shall be governed in all respects by the
laws of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced in
the courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
9.4 Persons Having Rights under this Agreement. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the parties hereto and the registered holders
of the Warrants and, for the purposes of Sections 6.1, 6.4, 7.4 and 9.2 hereof,
Shemano, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. Shemano shall be deemed to be a third-party beneficiary of this
Agreement with respect to Sections 6.1, 6.4, 7.4, 9.2 and 9.4 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 Shemano with respect to the Sections 6.1, 6.4, 7.4, 9.2 and 9.4
hereof) and their successors and assigns and of the registered holders of the
Warrants.
9.5 Examination of the Warrant Agreement. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
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9.7 Effect of Headings. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
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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.
Attest VICEROY ACQUISITION CORPORATION
________________________________ By:______________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
CONTINENTAL STOCK TRANSFER
Attest & TRUST COMPANY
________________________________ By:______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
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