FORM OF WARRANT AGREEMENT by and between CAZADOR ACQUISITION CORPORATION LTD. and CONTINENTAL STOCK TRANSFER & TRUST COMPANY Dated as of [ ], 2010
EXHIBIT 4.4
FORM
OF
by
and between
CAZADOR
ACQUISITION CORPORATION LTD.
and
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
______________
Dated as
of [ ], 2010
______________
TABLE
OF CONTENTS
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Page
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ARTICLE
I
APPOINTMENT
OF WARRANT AGENT
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2
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| ARTICLE II WARRANTS |
2
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2.1
|
Form
of Warrant
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2
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2.2
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Effect
of Countersignature
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2
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2.3
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Registration
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2
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2.4
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Detachability
of Warrants
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3
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2.5
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Founders’
Warrants
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4
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| ARTICLE III TERMS AND EXERCISE OF WARRANTS |
4
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3.1
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Warrant
Price
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4
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3.2
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Duration
of Warrants
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5
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3.3
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Exercise
of Warrants
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5
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3.4
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No
Cash Settlement
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8
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| ARTICLE IV ADJUSTMENTS |
8
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4.1
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Share
Dividends; Split-Ups
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8
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4.2
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Aggregation
of Shares
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8
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4.3
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Adjustments
in Warrant Price
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8
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4.4
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Replacement
of Securities upon Reorganization, etc
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9
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4.5
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Extraordinary
Dividends
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9
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4.6
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Notices
of Changes in Warrant
|
9
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4.7
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No
Fractional Shares
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10
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4.8
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Form
of Warrant
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10
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4.9
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Notice
of Certain Transactions
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10
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| ARTICLE V TRANSFER AND EXCHANGE OF WARRANTS |
10
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5.1
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Transfer
of Warrants
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10
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5.2
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Registration
of Transfer
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11
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5.3
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Procedure
for Surrender of Warrants
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11
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5.4
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Fractional
Warrants
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11
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5.5
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Service
Charges
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11
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5.6
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Warrant
Execution and Countersignature
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11
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| ARTICLE VI REDEMPTION |
11
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6.1
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Redemption
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11
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6.2
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Date
Fixed for, and Notice of, Redemption
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12
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-i-
TABLE
OF CONTENTS
(continued)
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Page
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6.3
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Exercise
After Notice of Redemption
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12
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6.4
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Outstanding
Warrants Only
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12
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| ARTICLE VII OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS |
12
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7.1
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No
Rights as Shareholder
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12
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7.2
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Lost,
Stolen, Mutilated, or Destroyed Warrants
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13
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7.3
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Reservation
of Ordinary Share
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13
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7.4
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Registration
of Ordinary Share
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13
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| ARTICLE VIII CONCERNING THE WARRANT AGENT AND OTHER MATTERS |
13
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8.1
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Payment
of Taxes
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13
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8.2
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Resignation,
Consolidation, or Merger of Warrant Agent
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13
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8.3
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Fees
and Expenses of Warrant Agent
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14
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8.4
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Liability
of Warrant Agent
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14
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8.5
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Acceptance
of Agency
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15
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8.6
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Waiver
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15
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| ARTICLE IX MISCELLANEOUS PROVISIONS |
15
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9.1
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Successors
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15
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9.2
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Notices
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16
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9.3
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Applicable
Law
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16
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9.4
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Persons
Having Rights under this Agreement
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16
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9.5
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Examination
of the Warrant Agreement
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17
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9.6
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Counterparts
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17
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9.7
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Effect
of Headings
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17
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9.8
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Amendments
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17
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9.9
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Severability
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17
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9.10
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Entire
Agreement
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17
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-ii-
This
WARRANT AGREEMENT (this “Agreement”) is made
as of [ ], 2010, by and between Cazador Acquisition Corporation Ltd., an
exempted company incorporated under the laws of the Cayman Islands with limited
liability (the “Company”), and
Continental Stock Transfer & Trust Company, a New York corporation, as
warrant agent (the “Warrant
Agent”).
WHEREAS, in connection with its
formation, the Company issued and sold to Cazador Sub Holdings Ltd., an exempted
company incorporated under the laws of the Cayman Islands with limited liability
(the “Sponsor”), an
aggregate of 1,437,500 ordinary shares, par value $0.0001 per share, of the
Company (each, an “Ordinary Share”)
(including an aggregate of up to 187,500 Ordinary Shares that are subject to
forfeiture on a pro rata basis to the extent that the underwriters’
over-allotment option is not exercised in full) (the “Founders’
Shares”).
WHEREAS, the Sponsor has agreed to
purchase from the Company an aggregate of 4,940,000 warrants at a price of $0.50
per warrant in a private placement that will occur immediately prior to the
Initial Public Offering (as defined below), each such warrant entitling the
holder thereof to purchase one Ordinary Share for $7.50, subject to adjustment,
as described herein (such warrants, the “Founders’
Warrants”).
WHEREAS, the Sponsor has agreed not to
sell or transfer the Founders’ Warrants (other than to Permitted Transferees as
defined below) until six months after the date of the consummation by the
Company of an Initial Business Combination (as defined below);
WHEREAS, the Company has filed a
registration statement (the “Registration
Statement”) on Form F-1 under the Securities Act of 1933, as amended (the
“Securities
Act”) with the Securities and Exchange Commission in connection with an
initial public offering (the “Initial Public
Offering”) of 5,000,000 units (or up to 5,750,000 units if and to the
extent that the underwriters exercise their over-allotment option in full) (the
“Public
Units”), each consisting of one Ordinary Share and one warrant entitling
the holder thereof to purchase one Ordinary Share for $7.50, subject to
adjustment as described herein (such warrants, the “Public
Warrants”);
WHEREAS,
the Public Warrants and the Founders’ Warrants are sometimes collectively
referred to herein as the “Warrants;”
WHEREAS, the Company desires the
Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing
to so act, in connection with the issuance, registration, transfer, exchange,
redemption, exercise and cancellation of the Warrants;
WHEREAS, the Company desires to provide
for the form and provisions of the Warrants, the terms upon which they shall be
issued and exercised, and the respective rights, limitation of rights, and
immunities of the Company, the Warrant Agent, and the holders of the Warrants;
and
WHEREAS, all acts and things have been
done and performed that 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:
ARTICLE
I
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.
ARTICLE
II
WARRANTS
2.1 Form of
Warrant. Each Public Warrant shall be issued in registered
form only in substantially the form of Exhibit A hereto and
each Founder Warrant shall be issued in registered form only in substantially
the form of Exhibit
B hereto, the provisions of which exhibits are incorporated
herein. Each Warrant shall be signed by, or bear the facsimile
signature of, any one of the Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Financial Officer, Treasurer or Secretary of the
Company. 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 serve in such capacity at the
date of issuance. All of the Public 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.
2.3 Registration.
(a) Warrant
Register. The Warrant Agent shall maintain books (the “Warrant Register”)
for the registration of issuance and the registration of transfer of the
Warrants. Upon the issuance of the Warrants, the Warrant Agent shall
issue and register such 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 Public Warrants shall
initially be represented by one or more Book-Entry Warrant Certificates
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 Public 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
(each such institution, with respect to a Public Warrant in its account, a
“Participant”).
2
If the
Depository subsequently ceases to make its book-entry settlement system
available for the Public Warrants, the Company may instruct the Warrant Agent
regarding making other arrangements for book-entry settlement. In the
event that the Public Warrants are not eligible for, or it is no longer
necessary to have the Public Warrants available in, book-entry form, the Warrant
Agent shall provide written instructions to the Depository to deliver to the
Warrant Agent for cancellation each Book-Entry Warrant Certificate, and the
Company shall instruct the Warrant Agent to deliver to the Depository definitive
certificates representing the Warrants (“Definitive Warrant
Certificates”).
(b) Beneficial Owner; Registered
Holder. The term “beneficial owner”
shall mean, on or after the Detachment Date (as defined below), any person in
whose name ownership of a beneficial interest in the Public Warrants evidenced
by a Book-Entry Warrant 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 Public Unit of which such Public Warrant or part thereof was originally
a part, as registered upon the register relating to such Public
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 (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 Public Units will not
be separately transferable until 5 trading days after the earlier to occur of
(i) the termination of the underwriters’ option to purchase up to 750,000
additional Public Units to cover over-allotments or (ii) the exercise in full of
such option (the “Detachment Date”)
subject in either case to the Company having filed a Report of Foreign Private
Issuer on Form 6-K (a “Form 6-K”) or a
Current Report on Form 8-K (a "Form
8-K") as applicable with the Securities and Exchange Commission
containing an audited balance sheet reflecting the receipt by the Company of the
gross proceeds of the Initial Public Offering, including the proceeds received
by the Company from the exercise of the underwriters’ over-allotment option, and
having issued a press release announcing when the separate trading of such
securities will begin. If the over-allotment option is exercised after the
initial filing of a Form 6-K or Form 8-K as applicable, the Company shall file
an amendment to the Form 6-K or Form 8-K as applicable to provide updated
financial information to reflect the exercise and consummation of the
over-allotment option. The Company shall include in such Form 6-K or
Form 8-K as applicable, or an amendment thereto, or in a subsequent Form 6-K or
Form 8-K as applicable, information indicating the date on which separate
trading of the Ordinary Shares and Public Warrants will begin. For
purposes of this Agreement, “Business Day” shall
mean any day on which the Depository is open for trading.
3
2.5 Founders’
Warrants. The Founders’ Warrants shall have the same terms and
be in the same form as the Public Warrants, except that:
(i) the
Founders’ Warrants may not be exercised unless and until the date that is six
months after the consummation of an Initial Business Combination;
(ii) the
Founders’ Warrants will be non-redeemable as long as they are held by the
Sponsor or its Permitted Transferees;
(iii) the
Founders’ Warrants may be exercised on a Cashless Basis (as defined below) at
the election of the holder, so long as they are held by the Sponsor or its
Permitted Transferees;
(iv) the
Founders’ Warrants are not transferable or salable except to a Permitted
Transferee until six months after the consummation of an Initial Business
Combination.
“Initial Business
Combination” means the Company’s initial business combination, through a
merger, share capital exchange, asset acquisition, share purchase,
reorganization or similar business combination, with one or more operating
businesses or assets.
“Permitted Transferee”
means a person or entity that receives such securities pursuant to a transfer
(i) to one or more of the Company’s officers, directors or initial unitholders,
(ii) to an affiliate or an affiliated entity under common control with the
transferor, (iii) to an entity’s beneficiaries upon its liquidation or
distribution, (iv) to relatives and trusts for estate planning purposes, (v) by
virtue of the laws of descent and distribution upon death, (vi) by private sales
with respect to up to 33% of the Sponsor Shares made at or prior to the
consummation of an Initial Business Combination at prices no greater than the
price at which the Sponsor Shares were originally purchased (approximately
$0.017 per share), or (vii) pursuant to a qualified domestic relations order;
and in each case the transferee enters into a written agreement agreeing (i) to
be bound by the transfer restrictions described above, (ii) to vote in
accordance with the majority of the Ordinary Shares voted by public shareholders
and (iii) to waive any rights to participate in any liquidation distribution if
the Company fails to consummate an Initial Business Combination and, in the case
of the Founders’ Shares subject to forfeiture, agreeing to forfeit such
Founders’ Shares to the extent that the underwriters’ over-allotment option is
not exercised.
ARTICLE
III
TERMS
AND EXERCISE OF WARRANTS
3.1 Warrant
Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the Registered Holder thereof, subject to the provisions of such
Warrant and of this Agreement, to purchase from the Company the number of
Ordinary Shares stated therein, at the price of $7.50 per whole share, subject
to the adjustments provided in Article IV
hereof. The term “Warrant Price” as
used in this Agreement refers to the price per share at which Ordinary Share may
be purchased at the time a Warrant is exercised.
4
3.2 Duration of
Warrants. A Warrant may be exercised only during the period
(the “Exercise
Period”) commencing on the later of the consummation by the Company of an
Initial Business Combination, and the first anniversary of the date of the final
prospectus that forms a part of the Registration Statement, and terminating on
the fifth anniversary of the date from the completion of the Initial Business
Combination or earlier upon redemption by the Company as provided in Article VI of this
Agreement (“Expiration Date”); provided, however, that, (i) the Public
Warrants shall not be exercisable and the Company shall not be obligated to
issue Ordinary Shares in respect thereof unless, at the time a holder seeks to
exercise such Public Warrants, a registration statement covering the Ordinary
Shares issuable upon exercise of the Public Warrants is effective and a current
prospectus is available for use or such issuance is deemed to be exempt under
the securities laws of the state of residence of the holder of such Warrants and
(ii) the Founders’ Warrants may not be exercised until six months after the
consummation of an Initial Business Combination. Except with respect
to the right to receive the Redemption Price (as set forth in Article VI
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 5:00 p.m., New York time on the Expiration
Date. The Company in its sole discretion may extend the duration of
the Warrants by delaying the Expiration Date; provided, however, that any extension of
the duration of the Warrants must apply equally to all of the Warrants. Should
the Company wish to extend the Expiration Date of the Warrants, the Company
shall provide advance notice to any stock exchange on which the Warrants are
listed in accordance with the requirements of such exchange.
3.3 Exercise of
Warrants.
(a) Payment. Subject
to the provisions of the Warrant and this Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the Registered Holder
thereof by delivering, not later than 5:00 p.m., New York time, on any Business
Day during the Exercise Period (the “Exercise Date”) to
the Warrant Agent at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent (i) the Definitive 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”)
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 in the form attached
hereto as part of Exhibit A or Exhibit B (the “Election to
Purchase”), as applicable, the Ordinary Shares underlying the Warrants to
be exercised, properly completed and executed, 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 Warrant Price for each full Ordinary
Share as to which the Warrants are exercised and any and all applicable taxes
due in connection with the exercise of the Warrants, the exchange of the
Warrants for Ordinary Shares, and the issuance of the Ordinary Shares in full,
in lawful money of the United States, by certified check payable to the Company;
provided, however, that the
holders of the Founders’ Warrants may pay the Warrant Price by surrendering the
Founders’ Warrants for that number of Ordinary Shares equal to the quotient
obtained by dividing (x) the product of the number of Ordinary Shares underlying
the Warrants, multiplied by the difference between the Fair Market Value and the
Warrant Price by (y) the Fair Market Value (a “Cashless Basis”); and
provided, further, that upon exercising
its option to redeem the Redeemable Warrants (as defined below), the Company may
exercise its option to require all Registered Holders of Redeemable Warrants
that elect to exercise their Redeemable Warrants prior to the scheduled
redemption date to exercise such Redeemable Warrants on a Cashless
Basis. “Fair Market Value”
means the average last sales price of the Ordinary Shares in the principal
trading market for the Ordinary Shares as reported by any national securities
exchange or quoted on the FINRA OTC Bulletin Board (or successor exchange), as
the case may be, for the 10 consecutive trading days ending on the third trading
day preceding the date on which the notice of redemption is sent to the holders
of Redeemable Warrants.
5
(i) If
any of (A) the Definitive Warrant Certificate or the Book-Entry Warrant
Certificate, (B) the Election to Purchase or (C) the Warrant Price therefor, is
received by the Warrant Agent after 5:00 p.m., New York time, on a specified day
or if such day is not a Business Day, the Warrants will be deemed to be received
and exercised on, and the applicable Exercise Date shall be the Business Day
next succeeding such 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
Registered Holder or the 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 Registered Holder and the Warrant Agent. Neither the
Company nor the Warrant Agent shall have any obligation to inform a Registered
Holder of the invalidity of any exercise of Warrants.
(ii) The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
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 Business Day on which
funds for the exercise of the Warrants are received and of the amount so
deposited to its account. The Warrant Agent shall promptly confirm
such telephonic advice to the Company in writing.
(iii) 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 and
registrar in respect of (a) the Ordinary Shares issuable upon such exercise 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.
(iv) 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 Ordinary Shares to which such Registered Holder or Participant, as the case
may be, is entitled, in fully registered form, registered in such name or names
as may be directed by such Registered Holder or the Participant, as the case may
be. Upon receipt of such Ordinary 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 Ordinary Shares to or upon the order of the
Registered Holder or the Participant, as the case may be.
6
(v) In
lieu of delivering physical certificates representing the Ordinary 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 efforts to cause its transfer agent to electronically
transmit the Ordinary Shares issuable upon exercise to the Registered Holder or
the Participant by crediting the account of the Registered Holder’s prime broker
with the 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.
(vi) The
accrual of dividends, if any, on the Ordinary Shares issued upon the valid
exercise of any Warrant will be governed by the terms generally applicable to
the Ordinary Shares. Starting with the Exercise Date, the former
holder of the Warrants exercised will be entitled to the benefits generally
available to other holders of Ordinary Shares and such former holder’s right to
receive payments of dividends and any other amounts payable in respect of the
Ordinary Shares shall be governed by, and shall be subject to, the terms and
provisions generally applicable to such Ordinary Shares.
(vii) Subject
to Section 4.7,
Warrants may be exercised only in whole numbers of Ordinary
Shares. If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of
unexercised Warrants remaining shall be executed by the Company and
countersigned by the Warrant Agent as provided in Article II 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.
(b) Issuance of
Certificates. Notwithstanding the foregoing, and subject to
Section 7.4 of
this Agreement, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Warrant unless (i) a registration statement under
the Securities Act with respect to the issuance of Ordinary Shares upon exercise
of the Warrants is effective, and (ii) the issuance of the Ordinary Shares upon
the exercise of the Warrants is qualified for sale or exempt from qualification
under applicable securities laws of the states or other jurisdictions in which
the Registered Holders reside. Warrants may not be exercised by, or
securities issued to, any Registered Holder without a current prospectus or in
any state in which such exercise would be unlawful. As a result of
the provisions of this Section 3.3(b), any
or all of the Warrants may expire unexercised. In no event shall the
Registered Holder of a Warrant be entitled to receive any monetary damages if
the issuance of the Ordinary Shares underlying the Warrants has not been
registered by the Company pursuant to an effective registration statement or if
a current prospectus is not available for delivery by the Warrant Agent; provided, that the
Company has fulfilled its obligation to use its best efforts to effect such
registration and ensure a current prospectus is available for delivery by the
Warrant Agent.
7
(c) Valid
Issuance. All Ordinary Shares issued upon the proper exercise
of a Warrant in conformity with this Agreement shall be validly issued, fully
paid and nonassessable.
(d) Date of
Issuance. Each person in whose name any such certificate for
Ordinary Shares is issued shall for all purposes be deemed to have become the
holder of record of such shares on the Exercise Date in accordance with Section 3.3(a),
irrespective of the date of delivery of such certificate to the holder, except
that, if delivery of the items set forth in Section 3.3(a) occurs
after 5:00 p.m., New York time, on any Business Day during the Exercise Period,
such person shall be deemed to have become the holder of such shares at the
close of business on the next succeeding Business Day.
3.4 No Cash
Settlement. Notwithstanding anything to the contrary contained
in this Agreement, under no circumstances will the Company be required to settle
any Warrant exercise for cash, whether by net cash settlement or
otherwise.
ARTICLE
IV
ADJUSTMENTS
4.1 Share Dividends;
Split-Ups. If after the date hereof, and subject to the
provisions of Section
4.7, the number of outstanding Ordinary Shares is increased by a share
dividend payable in Ordinary Shares, or by a split-up or a reverse split-up of
Ordinary Shares, or other similar event, then, on the effective date of such
share dividend, split-up, reverse split-up or similar event, the number of
Ordinary Shares issuable on exercise of each Warrant shall be increased or
decreased in proportion to such increase in outstanding Ordinary
Shares.
4.2 Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section
4.7, the number of outstanding Ordinary Shares is decreased by a
consolidation, combination, reverse share split or reclassification of Ordinary
Shares or other similar event, then, on the effective date of such
consolidation, combination, reverse share split, reclassification or similar
event, the number of Ordinary Shares issuable on exercise of each Warrant shall
be decreased in proportion to such decrease in outstanding Ordinary
Shares.
4.3 Adjustments in Warrant
Price. Whenever the number of Ordinary Shares purchasable upon
the exercise of the Warrants is adjusted, as provided in Sections 4.1 and
4.2 above, each
of the Warrant Price and the Floor Price (as defined below) shall be adjusted
(to the nearest cent) by multiplying such Warrant Price and Floor Price, as the
case may be, immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of Ordinary Shares purchasable upon the
exercise of the Warrants immediately prior to such adjustment and (y) the
denominator of which shall be the number of Ordinary Shares so purchasable
immediately thereafter; provided, that, with respect to any
adjustment occurring prior to the consummation of the Initial Public Offering,
the Company may determine (with the consent of the Sponsor) not to adjust the
Warrant Price and the Floor Price.
8
4.4 Replacement of Securities
upon Reorganization, etc. In case of any reclassification or
reorganization of the Ordinary Shares (other than a change covered by Section 4.1 or 4.2 hereof or that
solely affects the par value of such Ordinary Shares), 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 Ordinary Shares), 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 Registered 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 Ordinary Shares of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of shares 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, by a Registered Holder of the number of Ordinary Shares of the Company
obtainable upon exercise of the Warrants immediately prior to such event; and if
any reclassification also results in a change in Ordinary Shares covered by
Sections 4.1 or
4.2, then such
adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3 and this Section
4.4. The provisions of this Section 4.4 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
4.5 Extraordinary
Dividends. If the Company, at any time during the Exercise
Period, shall pay a dividend or make a distribution in cash, securities or other
assets to the holders of Ordinary Shares (or other shares of the Company’s
capital into which the Warrants are convertible), other than (i) as described in
Sections 4.1,
4.2 or 4.4, (ii) regular
quarterly or other periodic dividends, (iii) in connection with the shareholder
redemption rights of the holders of Ordinary Shares upon consummation by the
Company of an Initial Business Combination or (iv) in connection with the
Company’s liquidation and the distribution of its assets upon its failure to
consummate an Initial Business Combination (any such non-excluded event being
referred to herein as an “Extraordinary
Dividend”), then the Warrant Price and the Floor Price shall be
decreased, effective immediately after the effective date of such Extraordinary
Dividend, by the amount of cash and/or the fair market value (as determined by
the Company’s Board of Directors, in good faith) of any securities or other
assets paid on each Ordinary Share (or other shares of the Company’s capital
into which the Warrants are convertible) in respect of such Extraordinary
Dividend.
4.6 Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price, Floor
Price or the number of shares issuable on exercise of a Warrant, the Company
shall give written notice thereof to the Warrant Agent, which notice shall state
the Warrant Price or Floor 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, 4.4 or 4.5, then, in any
such event, the Company shall give written notice to each Registered 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.
9
4.7 No Fractional
Shares. Notwithstanding any provision contained in this
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant
to this Article
IV or by reason of any cashless exercise pursuant to Sections 3.3(a) or
6.1, the
Registered Holder 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 Ordinary Shares to be issued
to the Registered Holder.
4.8 Form of
Warrant. The forms of Warrants need not be changed because of
any adjustment pursuant to this Article IV, and
Warrants issued after such adjustment may state the same Warrant Price and the
same number of shares as is stated in the Warrants initially issued pursuant to
this Agreement. However, the Company may at any time in its sole
discretion make any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.
4.9 Notice of Certain
Transactions. In the event that the Company shall propose to
(a) offer the holders of its Ordinary Shares rights to subscribe for or to
purchase any securities convertible into Ordinary Shares or shares of any class
or any other securities, rights or options, (b) issue any rights, options or
warrants entitling the holders of Ordinary Shares to subscribe for Ordinary
Shares or (c) make a tender offer, redemption offer or exchange offer with
respect to the Ordinary Shares, the Company shall send to the Registered Holders
a notice of such proposed action or offer. Such notice shall be
mailed to the Registered Holders at their addresses as they appear in the
Warrant Register, which shall specify the record date for the purposes of such
dividend, distribution or rights, or the date such issuance or event is to take
place and the date of participation therein by the holders of Ordinary Shares,
if any such date is to be fixed, and shall briefly indicate the effect of such
action on the Ordinary Shares and on the number and kind of any other shares and
on other property, if any, and the number of Ordinary Shares and other property,
if any, issuable upon exercise of each Warrant and the Warrant Price or Floor
Price after giving effect to any adjustment pursuant to this Article IV that would
be required as a result of such action. Such notice shall be given as
promptly as practicable after the Company’s Board of Directors has determined to
take any such action and (x) in the case of any action covered by clause (a) or
(b) above at least 10 days prior to the record date for determining the holders
of Ordinary Shares for purposes of such action or (y) in the case of any other
such action at least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Ordinary Share,
whichever shall be the earlier.
ARTICLE
V
TRANSFER
AND EXCHANGE OF WARRANTS
5.1 Transfer of
Warrants. Prior to the Detachment Date, the Public Warrants
may be transferred or exchanged only as part of the Public Units in which such
Warrants are included, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Public Unit. For the avoidance
of doubt, each transfer of a Public Unit on the register relating to such Public
Units shall operate also to transfer the Warrants included in such Public
Unit.
10
5.2 Registration of
Transfer. Subject to Section 5.3 below,
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 that 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 Article V, and the
Company, whenever required by the Warrant Agent, shall supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such
purpose.
ARTICLE
VI
REDEMPTION
6.1 Redemption. Subject
to Section 6.4
hereof, not less than all of the outstanding Warrants (other than any Founders’
Warrants that are held by the Sponsor or any Permitted Transferee) 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 (the “Redemption Price”);
provided, however, that the
last sales price of the Ordinary Shares on the Nasdaq Capital Market, or other
national securities exchange on which the Ordinary Shares may be traded, has
been equal to or greater than $15.00 per share (the “Floor Price”) for any
20 trading days on which trading occurs within a 30 trading day period ending
three Business Days prior to the date on which notice of redemption is given
(the “30-day
redemption period”); and provided, further that with
respect to the Public Warrants only, a registration statement under the
Securities Act relating to the Ordinary Shares issuable upon the exercise of the
Warrants is effective and expected to remain effective to and including the
redemption date, and a prospectus relating to the Ordinary Shares issuable upon
the exercise of the Warrants is available throughout the 30-day redemption
period. If the foregoing conditions are satisfied, and such Warrants
are called for redemption, each Registered Holder will be entitled to exercise
their Warrants prior to the date scheduled for redemption.
11
6.2 Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
all of the outstanding Warrants (other than any Founders’ Warrants that are held
by the Sponsor or any Permitted Transferee) pursuant to Section 6.1 (the
“Redeemable
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 Redeemable Warrants at their
last addresses as they shall appear in the Warrant Register. Any
notice mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date sent whether or not the Registered Holder
received such notice.
6.3 Exercise After Notice of
Redemption. The Redeemable Warrants may be exercised 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; provided, however, that the Company has
the option to require all Registered Holders of the Redeemable Warrants who
elect to exercise their Redeemable Warrants prior to the date scheduled for
redemption to exercise their Redeemable Warrants on a Cashless
Basis. On and after the redemption date, the Registered Holder of the
Redeemable Warrants shall have no further rights except to receive the
Redemption Price upon surrender of the Redeemable Warrants.
6.4 Outstanding Warrants
Only. The Company understands that the redemption rights
provided for by this Article VI apply only
to outstanding Redeemable Warrants. To the extent a person holds
rights to purchase Redeemable Warrants, such purchase rights shall not be
extinguished by redemption. However, once such purchase rights are
exercised, the Company may redeem the Redeemable Warrants issued upon such
exercise, provided that the criteria for
redemption are met, including the opportunity of the Redeemable Warrant holders
to exercise prior to the time and date fixed for redemption pursuant to Section
6.3.
ARTICLE
VII
OTHER
PROVISIONS RELATING TO
RIGHTS
OF HOLDERS OF WARRANTS
7.1 No Rights as
Shareholder. A Warrant does not entitle the Registered Holder
thereof to any of the rights of a shareholder 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 shareholders in
respect of the meetings of shareholders for the election of directors of the
Company or any other matter.
12
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 Ordinary
Share. The Company shall at all times reserve and keep
available a number of its authorized but unissued Ordinary Shares that will be
sufficient to permit the exercise in full of all outstanding Warrants issued
pursuant to this Agreement.
7.4 Registration of Ordinary
Share. If the Company consummates an Initial Public Offering,
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 Securities Act of, and it shall take such action as
may be necessary to qualify for sale, in those states in which the Public
Warrants were initially offered by the Company, the issuance of the Ordinary
Shares issuable upon exercise of the Public Warrants. In either case,
the Company shall use its best efforts to cause the same to become effective on
or prior to the commencement of the Exercise Period and to maintain the
effectiveness of such registration statement until the expiration of the Public
Warrants in accordance with the provisions of this Agreement.
ARTICLE
VIII
CONCERNING
THE WARRANT AGENT AND OTHER MATTERS
8.1 Payment of
Taxes. The Company shall 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 Ordinary Shares upon the exercise of the
Warrants, but the Company shall not be obligated to pay any transfer taxes in
respect of the Warrants or of such Ordinary Shares.
8.2 Resignation, Consolidation,
or Merger of Warrant Agent.
(a) 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 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 any Registered Holder (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.
13
(b) 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 Ordinary Shares not later than the
effective date of any such appointment.
(c) Merger or Consolidation of
Warrant Agent. Any corporation or other entity 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.
(a) Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as Warrant Agent hereunder and shall reimburse the Warrant Agent upon written
demand for all reasonable expenditures that the Warrant Agent may reasonably
incur in the execution of its duties hereunder.
(b) 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.
(a) Reliance on Company
Statement. Whenever in the performance of its duties under
this Agreement, the Warrant Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the Chairman of the
Board of Directors, Chief Executive Officer, President, Chief Financial Officer,
Treasurer or Secretary 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.
14
(b) Indemnity.
(i) 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.
(ii) In
case any action arising out of this Agreement is brought against the Warrant
Agent, the Company will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, and after notice from the
Company to the Warrant Agent of its election so to assume the defense, the
Company will not be liable to the Warrant Agent under this Section 8.4(b) for
any legal or other expenses subsequently incurred by the Warrant Agent in
connection with the defense thereof. The Warrant Agent shall not,
without the prior written consent of the Company, effect any settlement of any
pending or threatened action hereunder.
(c) 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 Article
IV 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
Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to
whether any Ordinary Shares 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
the Company’s Ordinary Shares through the exercise of Warrants.
8.6 Waiver. The
Warrant Agent hereby waives any and all right or set-off of any and all title,
interest or claim of any kind (“Claim”) in or to any
distribution of the Trust Account (as defined in that certain Investment
Management Trust Agreement to be entered into by and between the Company and
Continental Stock Transfer and Trust Company as trustee thereunder), and hereby
agrees not to seek recourse, reimbursement, payment or satisfaction for any
Claim against the funds in the Trust Account for any reason whatsoever
including, without limitation, pursuant to Section 8.4(b)
hereunder, and to pursue any such Claims solely against the
Company.
ARTICLE
IX
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.
15
9.2 Notices. Any
notice, statement or demand authorized by this Agreement to be given or made by
the Warrant Agent or by any Registered Holder 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:
Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Co-Chief Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made by
any Registered Holder or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇ Di Paolo
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 principles that
would result in the application of the substantive laws of another
jurisdiction. The Company and the Warrant Agent hereby agree 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 in the Borough of Manhattan 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 and the Warrant
Agent hereby waive any objection to such exclusive jurisdiction and any claim
that such courts represent an inconvenient forum. Any such process or
summons to be served upon the Company or the Warrant Agent 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; provided, that, such
service shall not preclude any other manner of service permitted by
law.
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, any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof. All covenants,
conditions, stipulations, promises and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the parties hereto and their
successors and assigns and of the Registered Holders of the
Warrants.
16
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 (which may be delivered
by facsimile or other electronic means) and each of such counterparts shall for
all purposes be deemed to be an original and all such counterparts shall
together constitute but one and the same instrument.
9.7 Effect of
Headings. The Section headings herein are for convenience only
and are not part of this Agreement and shall not affect the interpretation
thereof.
9.8 Amendments. This
Agreement may be amended by the parties hereto without the consent of any
Registered Holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the Registered
Holders. All other modifications or amendments shall require the
written consent of the Registered Holders of a majority of the then outstanding
Warrants. Notwithstanding the foregoing, the Company may lower the
Warrant Price or extend the duration of the Exercise Period in accordance with
Sections 3.1
and 3.2,
respectively, without such consent.
9.9 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof or
thereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
9.10 Entire
Agreement. This Agreement, in conjunction with that certain
Sponsor Warrant Purchase Agreement dated [•], 2010, by and
between Cazador Acquisition Corporation Ltd. and Cazador Sub Holdings Ltd.,
constitutes the entire understanding of the parties and supersedes all prior
agreements, understandings, arrangements, promises and commitments, whether
written or oral, express or implied, relating to the subject matter hereof, and
all such prior agreements, understandings, arrangements, promises and
commitments are hereby canceled and terminated.
[Remainder
of Page Intentionally Left Blank]
17
IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
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CAZADOR
ACQUISITION CORPORATION LTD.
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By:
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Name:
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Title:
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CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
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By:
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Name:
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Title:
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18
EXHIBIT
A
Form of Public
Warrant
The
Ordinary Shares issuable upon exercise of the Warrants represented by this
Warrant Certificate have not been registered under the Securities Act of 1933,
as amended. The Company shall not be obligated to deliver any such
shares unless (i) a registration statement under the Securities Act with respect
to the issuance of such shares upon exercise of the Warrants is effective or
(ii) in the opinion of counsel to the Company, such registration statement is
not required.
The
securities represented by this Warrant Certificate (including the securities
issuable upon the exercise of the Warrant) are subject to the terms and
conditions set forth in the Warrant Agreement dated as of [ ], 2010, by and
between the Company and the Warrant Agent (the “Warrant
Agreement”). Copies of such agreement may be obtained by the holder
hereof at the Warrant Agent’s principal place of business without
charge.
SPECIMEN
WARRANT CERTIFICATE
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NUMBER
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WARRANTS
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THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 p.m.
NEW YORK
CITY TIME, ON THE EXPIRATION DATE
CAZADOR
ACQUISITION CORPORATION LTD.
CUSIP
______________
WARRANT
THIS
CERTIFIES THAT, for value received is the Registered Holder of such number of
Warrants set forth above (the “Warrants”), each such Warrant expiring at 5:00
p.m., New York time, on ___________, 2015, five years from the date of the
completion of the initial business combination or earlier upon redemption by
Cazador Acquisition Corporation Ltd., an exempted company incorporated under the
laws of the Cayman Islands with limited liability (the “Company”) in accordance
with the terms hereof and entitling the holder to purchase one fully paid and
non-assessable ordinary share (“Ordinary Share”), of the Company. The Warrant
entitles the holder thereof to purchase from the Company, commencing on the
later of (i) the consummation by the Company of an Initial Business Combination
or (ii) _________, 2011, one year from the date of the final prospectus that
forms a part of the Registration Statement, such number of Ordinary Shares of
the Company at the price of $7.50 per share, as such price may be adjusted, upon
surrender of this Warrant Certificate and payment of the Warrant Price on or
prior to the expiration date at the offices of the Warrant Agent, Continental
Stock Transfer & Trust Company, with the exercise form on the reverse side
of the Warrant Certificate completed and executed as indicated, accompanied by
full payment of the Warrant Price, by certified check payable to the Company,
for the number of warrants being exercised, but only subject to the conditions
set forth herein and in the Warrant Agreement. The Warrant Agreement
provides that upon the occurrence of certain events the Warrant Price, the Floor
Price and the number of Ordinary Shares purchasable upon the exercise of each
Warrant may, subject to certain conditions, be adjusted. In no event shall the
Company be required to settle any Warrant exercise for cash, whether by net cash
settlement or otherwise. The term Warrant Price as used in this
Warrant Certificate refers to the price per Ordinary Share at which Ordinary
Shares may be purchased at the time the Warrant is exercised.
No
fraction of an Ordinary Share will be issued upon any exercise of a Warrant. If,
upon exercise of a Warrant, a holder would be entitled to receive a fractional
interest in an Ordinary Share, the Company shall, upon exercise, round up to the
nearest whole number the number of Ordinary Shares to be issued to such warrant
holder.
Upon
any exercise of the Warrant for less than the total number of full Ordinary
Shares provided for herein, there shall be issued to the Registered Holder
hereof or the Registered Holder’s assignee a new Warrant Certificate covering
the number of Ordinary Shares for which the Warrant has not been
exercised.
Warrant
Certificates, when surrendered at the offices of the Warrant Agent by the
Registered Holder hereof in person or by attorney duly authorized in writing,
may be exchanged in the manner and subject to the limitations provided in the
Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants.
Upon
due presentment for registration of transfer of the Warrant Certificate at the
offices of the Warrant Agent, a new Warrant Certificate or Warrant Certificates
of like tenor and evidencing in the aggregate a like number of Warrants shall be
issued to the transferee in exchange for this Warrant Certificate, subject to
the limitations provided in the Warrant Agreement, without charge except for any
applicable tax or other governmental charge.
The
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the Registered Holder, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
This
Warrant does not entitle the Registered Holder to any of the
rights of a shareholder of the Company.
Subject to Section 6.4 of the Warrant
Agreement, the Company may redeem all, but not less than all, of the Public
Warrants, at the option of the Company, at any time after such Warrants become
exercisable and prior to their expiration, at the offices of the Warrant Agent,
upon the notice referred to in Section 6.2 of the Warrant Agreement at the price
of $0.01 per Warrant (the “Redemption Price”); provided, however, that the last
sales price of the Ordinary Shares has been equal to or greater than the Floor
Price on each of 20 trading days within any 30 trading day period ending three
business days prior to the notice of redemption to warrant holders (the “30-day
redemption period”); and provided, further that a registration statement under
the Securities Act relating to the Ordinary Shares issuable upon exercise of the
Warrants is effective and expected to remain effective to and including the
redemption date, and a prospectus relating to the Ordinary Shares issuable upon
exercise of the Warrants is available throughout the 30-day redemption
period. If the foregoing conditions are satisfied, and the Warrants
are called for redemption, each Registered Holder will be entitled to exercise
their Warrants prior to the date scheduled for redemption. In the
event the Company calls the Warrants for redemption pursuant to Section 6.1 of
the Warrant Agreement, the Company shall have the option to require all holders
of those Warrants who elect to exercise their Warrants prior to the date
scheduled for redemption to exercise the Warrants on a cashless basis. If the
Company requires holders of the Warrants to exercise the Warrants on a cashless
basis, each holder of such Warrants shall pay the Warrant Price by surrendering
such Warrants for that number of Ordinary Shares equal to the quotient obtained
by dividing (x) the product of the number of Ordinary Shares underlying the
Warrants, multiplied by the difference between the Fair Market Value and the
Warrant Price of the Warrants by (y) the Fair Market Value. Any
Warrant either not exercised or tendered back to the Company by the end of the
date specified in the notice of redemption shall be canceled on the books of the
Company and have no further value except for the $0.01 redemption
price.
The securities represented by this
Warrant Certificate (including the securities issuable upon the exercise of the
Warrant) are subject to the terms and conditions set forth in the Warrant
Agreement dated as of [ ], 2010, by and between the Company and the Warrant
Agent (the “Warrant Agreement”). Copies of such agreement may be
obtained by the holder hereof at the Warrant Agent’s principal place of business
without charge.
Capitalized terms used herein but not
defined shall have the meaning set forth in the Warrant
Agreement.
ELECTION
TO PURCHASE
To Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise
_______________________ Warrants represented by this Warrant Certificate, and to
purchase the Ordinary Shares issuable upon the exercise of such Warrants, and
requests that Certificates for such shares shall be issued in the name
of
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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and
be delivered to
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(PLEASE
PRINT OR TYPE NAME AND
ADDRESS)
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and, if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:
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Dated:
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(SIGNATURE)
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(ADDRESS)
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(TAX
IDENTIFICATION NUMBER)
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ASSIGNMENT
To Be
Executed by the Registered Holder in Order to Assign Warrants
For Value
Received, __________________________________ hereby sell, assign, and transfer
unto
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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and
be delivered to
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(PLEASE
PRINT OR TYPE NAME AND
ADDRESS)
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___________________________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint
__________________________________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.
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Dated:
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(SIGNATURE)
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The
signature to the assignment of the subscription form must correspond to the name
written upon the face of this warrant certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
commercial bank or trust company or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock
Exchange.
EXHIBIT
B
Form of Founders’
Warrant
The
securities represented by this Warrant Certificate (including the securities
issuable upon exercise of the Warrant) have not been registered under the
Securities Act of 1933, as amended. The securities may not be sold,
offered for sale, pledged or hypothecated in the absence of an effective
registration statement as to the securities under the Securities Act or an
opinion of counsel satisfactory to the Company that such registration statement
is not required.
The
securities represented by this Warrant Certificate (including the securities
issuable upon the exercise of the Warrant) are subject to the terms and
conditions, including certain restrictions on transfer, set forth in the Warrant
Agreement dated as of [ ], 2010, by and between the Company and
the Warrant Agent (the “Warrant Agreement”). Copies of such agreement
may be obtained by the holder hereof at the Warrant Agent’s principal place of
business without charge.
SPECIMEN
WARRANT CERTIFICATE
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NUMBER
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WARRANTS
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NEW YORK
CITY TIME, ON THE EXPIRATION DATE
CAZADOR
ACQUISITION CORPORATION LTD.
CUSIP
______________
WARRANT
THIS
CERTIFIES THAT, for value received is the Registered Holder of such number of
Warrants set forth above (the “Warrants”), each such Warrant expiring at 5:00
p.m., New York time, on ___________, 2015, five years from the date of the
completion of the initial business combination or earlier upon redemption by
Cazador Acquisition Corporation Ltd., an exempted company incorporated under the
laws of the Cayman Islands with limited liability (the “Company”) in accordance
with the terms hereof and entitling the holder to purchase one fully paid and
non-assessable ordinary share (“Ordinary Share”), of the Company. The Warrant
entitles the holder thereof to purchase from the Company, commencing six months
from the consummation of an Initial Business, such number of Ordinary Shares of
the Company at the price of $7.50 per share, as such price may be adjusted, upon
surrender of this Warrant Certificate and payment of Warrant Price on or prior
to the expiration date at the offices of the Warrant Agent, Continental Stock
Transfer & Trust Company, with the exercise form on the reverse side of the
Warrant Certificate completed and executed as indicated, accompanied by full
payment of the Warrant Price, by certified check payable to the Company or on a
cashless basis as described in Section 3.3(a) of the Warrant Agreement and
below, for the number of warrants being exercised, but only subject to the
conditions set forth herein and in the Warrant Agreement. In no event
shall the Company be required to settle any Warrant exercise for cash, whether
by net cash settlement or otherwise. The term Warrant Price as used
in this Warrant Certificate refers to the price per Ordinary Share at which
Ordinary Shares may be purchased at the time the Warrant is
exercised.
No
fraction of an Ordinary Share will be issued upon any exercise of a Warrant. If,
upon exercise of a Warrant, a holder would be entitled to receive a fractional
interest in an Ordinary Share, the Company shall, upon exercise, round up to the
nearest whole number the number of Ordinary Shares to be issued to such
holder.
Upon
any exercise of the Warrant for less than the total number of full Ordinary
Shares provided for herein, there shall be issued to the Registered Holder
hereof or the Registered Holder’s assignee a new Warrant Certificate covering
the number of Ordinary Shares for which the Warrant has not been
exercised.
Warrant
Certificates, when surrendered at the offices of the Warrant Agent by the
Registered Holder hereof in person or by attorney duly authorized in writing,
may be exchanged in the manner and subject to the limitations provided in the
Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants.
Upon
due presentment for registration of transfer of the Warrant Certificate at the
offices of the Warrant Agent, a new Warrant Certificate or Warrant Certificates
of like tenor and evidencing in the aggregate a like number of Warrants shall be
issued to the transferee in exchange for this Warrant Certificate, subject to
the limitations provided in the Warrant Agreement, without charge except for any
applicable tax or other governmental charge.
The
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the Registered Holder, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
This
Warrant does not entitle the holder to any of the rights of a
shareholder of the Company.
The
Company may not redeem the Founders’ Warrants that are held by the Sponsor or
any Permitted Transferee.
The
securities represented by this Warrant Certificate (including the securities
issuable upon the exercise of the Warrant) are subject to the terms and
conditions set forth in the Warrant Agreement dated as of [ ], 2010, by and
between the Company and the Warrant Agent (the “Warrant
Agreement”). Copies of such agreement may be obtained by the holder
hereof at the Warrant Agent’s principal place of business without
charge.
Capitalized
terms used herein but not defined shall have the meaning set forth in the
Warrant Agreement.
ELECTION
TO PURCHASE
To Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise _________________
Warrants represented by this Warrant Certificate, and to purchase the Ordinary
Shares issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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and
be delivered to
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(PLEASE
PRINT OR TYPE NAME AND
ADDRESS)
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and, if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:
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Dated:
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(SIGNATURE)
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(ADDRESS)
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(TAX
IDENTIFICATION NUMBER)
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ASSIGNMENT
To Be
Executed by the Registered Holder in Order to Assign Warrants
For Value
Received, ____________________________________________________ hereby sell,
assign, and transfer unto
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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and
be delivered to
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(PLEASE
PRINT OR TYPE NAME AND
ADDRESS)
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___________________________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint
__________________________________________________________
Attorney to transfer this Warrant Certificate on the books of the Company, with
full power of substitution in the premises.
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Dated:
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(SIGNATURE)
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The
signature to the assignment of the subscription form must correspond to the name
written upon the face of this warrant certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be guaranteed by a
commercial bank or trust company or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock
Exchange.