NRDC ACQUISITION CORP. WARRANT AGREEMENT
Exhibit
4.4
THIS
WARRANT AGREEMENT (the “Agreement”) is made as of [•],
2007, between NRDC Acquisition Corp., a Delaware corporation,
with offices at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
“Company”), and Continental Stock Transfer &
Trust Company, a New York corporation, with offices
at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Warrant Agent”).
WHEREAS,
the Company is engaged in a public offering (“Public Offering”)
of up to 30,000,000 Units (the “Units”), consisting of one
share of the Company’s common stock, par value $0.0001 per share
(“Common Stock”) and one warrant (“Public
Warrants”), each of such Public Warrants evidencing the right of the
holder thereof to purchase one share of Common Stock for $7.50, subject to
adjustment as described herein;
WHEREAS,
immediately prior to the completion of the Public Offering, the Company shall
sell and issue 8,000,000 Warrants (the “Private Warrants”),
each of such Private Warrants evidencing the right of the holder thereof to
purchase one share of Common Stock for $7.50, subject to adjustment as described
herein;
WHEREAS,
immediately prior to the consummation of an initial Business Combination (as
defined in Section 3.2), the Company shall sell and issue, for an aggregate
purchase price of $20,000,000, 2,000,000 Co-Investment Units at $10.00 per
unit,
each unit consisting of one share of Common Stock and one warrant to purchase
one share of Common Stock at an exercise price of $7.50 per share
(“Co-Investment Warrants”, which together with the Public
Warrants and the Private Warrants are referred to herein as
“Warrants”);
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the
“Commission”) a Registration Statement, No. 333-144871, on Form
S-1 (as amended, the “Registration Statement”) for the
registration under the Securities Act of 1933, as amended (“Securities
Act”), of, among other securities, the Units, Public Warrants and the
Common Stock issuable upon exercise of the Public 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 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 with respect to 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, Vice-Chairman, Chief Executive Officer or President.
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 in accordance with this Agreement, a Warrant shall be invalid and of
no
effect and may not be exercised by the holder thereof.
2.3
Detachability of Warrants. The securities comprising the Units will not
be separately transferable until five (5) trading days after the earlier to
occur of (a) the termination of the Underwriter’s over-allotment option or
(b) the exercise in full by the Underwriter of such option (the
“Detachment Date”). Further, in no event will separate trading
of the securities comprising the Units commence until the Company files a
Current Report on Form 8-K with the Commission containing an audited balance
sheet reflecting the Company’s receipt of the gross proceeds of the Public
Offering including the proceeds received by the Company from the exercise of
the
Underwriter’s over-allotment option.
2.4
Registration.
2.4.1
Warrant Register. The Warrant Agent shall maintain books
(“Warrant Register”) for 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
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
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
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.
2.4.2
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 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 Unit to which such Warrant Certificate was initially attached as
registered upon the register relating to such Units. Prior to due presentment
for registration or 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 (a “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.
3.
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
(a) such Public Warrant, Private Warrant or Co-Investment Warrant, as the
case may be, and (b) 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 whole
share at which Common Stock may be purchased at the time a Warrant is exercised.
The Company in its sole discretion may lower the Warrant Price at any time
prior
to the Expiration Date; provided, however, that any change in the
Warrant Price must apply equally to all of the Warrants, and provided,
further, that any reduction in Warrant Price must remain in effect
for at
least (20) business days.
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3.2
Duration of Warrants.
3.2.1
Public Warrants and Private Warrants. Public Warrants and Private
Warrants may be exercised only during the period (“Exercise
Period”) commencing on the later of (a) the consummation of an
acquisition by the Company of one or more operating businesses through a merger,
capital stock exchange, stock purchase, asset acquisition or other similar
business combination having, collectively, a fair market value (as calculated
in
accordance with the requirements set forth in the Company’s Certificate of
Incorporation, as amended) of at least 80% of the balance of the Trust Account
(as defined in Section 8.6 below), excluding the Underwriter’s deferred
discount, at the time of such acquisition (a “Business
Combination”), or (b) [•], and terminating at 5:00 p.m., New York
City time on the earlier to occur of (i) [•], or (ii) the date fixed for
redemption of the Public Warrant and Private Warrant as provided in
Section 6 of this Agreement (subject to extension in limited circumstances)
(the date on which the exercise period terminates, the “Expiration
Date”). Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), each Public Warrant and
Private 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 Public Warrants
and Private Warrants by delaying the Expiration Date; provided,
however, that any extension of the duration of the Public Warrants
and
Private Warrants must apply equally to all of the Public Warrants and Private
Warrants. Should the Company wish to extend the Expiration Date of the Public
Warrants and Private Warrants, the Company shall provide advance notice to
the
American Stock Exchange as required by the American Stock Exchange.
3.2.2
Co-Investment Warrants. A Co-Investment Warrant may be exercised only
during the period ("Co-Investment Exercise Period") commencing
after the date on which the last sales price of the Company's Common Stock
on the American Stock Exchange, or other national securities exchange on which
the Company's Common Stock may be traded, equals or exceeds $14.25 per share
for
any 20 trading days within any 30-trading-day period beginning at least 90
calendar days after the consummation of the Company's initial Business
Combination, and terminating at 5:00 p.m., New York time on [•].
3.3
Terms and Exercise of Warrants.
3.3.1
Method of Exercise. A Registered Holder may exercise a Warrant by
delivering, not later than 5:00 P.M., New York time, on any business day during
the applicable 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 (“Election to Purchase”) any shares of Common Stock
pursuant to the exercise of a Warrant (the “Shares”), 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 Warrant 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; provided, however,
that solely with respect to the Private Warrants and Co-Investment Warrants
so
long as such Warrants are held by their original purchaser or its permitted
transferees the holder thereof may, in lieu of payment of the Warrant Price,
surrender its Private Warrants or Co-Investment Warrants, as the case may be,
for that number of Shares equal to the quotient obtained by dividing
(x) the product of the number of Shares underlying the surrendered Private
Warrants or Co-Investment Warrants, as the case may be, multiplied by the
difference between the Fair Market Value (defined below) and the Warrant Price
by (y) the Fair Market Value. For avoidance of doubt, in no event may a
Registered Holder expect or compel the Company to deliver any consideration
under a Warrant other than Shares as described immediately above. “Fair
Market Value” shall mean the average reported last sale price of the
Common Stock for the 10 trading days ending on the third trading day prior
to
the date on which the Election to Purchase by a holder of Private Warrants
or
Co-Investment Warrants, as the case may be, is sent to the Warrant Agent.
If
any of
(A) the Warrant Certificate or the Book-Entry Warrants, (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 the specified Exercise Date,
the Warrants will be deemed to be received and exercised on the Business Day
next
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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
Registered 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 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.
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 day on which 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.
The
Warrant Agent shall, by 11:00 A.M. Eastern 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 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.
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 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 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 Registered 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 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.
Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of any of the Warrants unless a registration statement
under the Act with respect to the Common Stock issuable upon exercise of the
Public Warrants is effective and the prospectus contained therein is available
for use by the holders of the Public Warrants. Warrants may not be exercised
by,
or securities issued to, any Registered Holder in any state in which such
exercise would be unlawful. The exercise of the Warrants may only be settled
by
delivery of Shares and the Registered Holders shall not be entitled to payment
of cash in lieu of Shares (net cash settlement) upon exercise of the Warrants
pursuant to the terms of this Agreement or the Warrants regardless of whether
the Common Stock underlying the Warrants is registered pursuant to an effective
registration statement and a prospectus relating to those Shares is available
for use by the holders of the Public Warrants.
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 payments 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.
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Warrants
may be exercised only in whole numbers of Shares. No fractional Shares are
to be
issued upon the exercise of the Warrant, but rather the number of Shares 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 unexercised Warrants remaining shall be executed
by the Company and countersigned by the Warrant Agent as provided in
Section 2 of this Agreement, 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.
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.
3.3.2.
Payment. Subject to the provisions of the Warrant (including, but not
limited to, the cashless exercise provisions applicable to the Private Warrants
and the Co-Investment Warrants) and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company
(or
as otherwise agreed to by the Company), the Warrant Price for each whole share
of Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.3.
Issuance of Certificates. As soon as practicable after the exercise of
any Warrant and the clearance of the funds in payment of the Warrant Price,
the
Company shall issue to the registered holder of such Warrant a certificate
or
certificates for the number of full shares of Common Stock to which he is
entitled, registered in such name or names as may be directed by him, her or
it,
and if such Warrant shall not have been exercised in full, a new countersigned
Warrant for the number of shares as to which such Warrant shall not have been
exercised. Notwithstanding the foregoing, the Company shall not be obligated
to
deliver any securities pursuant to the exercise of a Warrant unless a
registration statement under the Act with respect to the Common Stock is
effective.
3.3.4.
Limitations. Notwithstanding the foregoing, the Company shall not be
obligated to deliver any Shares and shall have no obligation to settle the
Warrant exercise unless a registration statement under the Securities Act,
with
respect to the Shares is effective and a current prospectus is on file with
the
Commission. In the event that a registration statement with respect to the
Shares underlying a Warrant is not effective under the Securities Act or a
current Prospectus is not on file with the Commission, the holder of such
Warrant shall not be entitled to exercise such Warrant. Notwithstanding anything
to the contrary in this Warrant Agreement, and other than with respect to the
cashless exercise provisions applicable to the Private Warrants and the
Co-Investment Warrants, under no circumstances will the Company be required
to
net cash settle the Warrant exercise. Warrants may not be exercised by, or
Shares issued to, any registered holder in any state in which such exercise
or
issuance would be unlawful. For the avoidance of doubt, as a result of this
Section 3.3.4, any or all of the Warrants may expire unexercised. In no
event shall the registered Holder of a Warrant be entitled to receive any
monetary damages if the Common Stock underlying the Warrants have not been
registered by the Company pursuant to an effective registration statement or
if
a current prospectus is available for delivery by the Warrant Agent,
provided the Company has fulfilled its obligation to use its best efforts
to effect such registration and ensure a current prospectus is available for
delivery by the Warrant Agent.
3.4
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
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certificate,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the close of business on the next succeeding
date on which the stock transfer books are open.
4.
ADJUSTMENTS.
4.1
Stock Dividends – Split-Ups. If after the date hereof, and subject to the
provisions of Section 4.7 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
Extraordinary Dividend. If the Company, at any time while the Warrants
are outstanding and unexpired, shall pay a dividend or make a distribution
in
cash, securities or other assets to the holders of Common Stock (or other shares
of the Company’s capital stock into which the Warrants are convertible), other
than (a) as described in Sections 4.1, 4.3 or 4.5, (b) regular
quarterly or other periodic dividends, (c) in connection with the
conversion rights of the holders of Common Stock upon consummation of the
Company’s initial Business Combination, or (d) in connection with the
Company’s liquidation and the distribution of its assets upon its failure to
consummate a Business Combination (any such non-excluded event being referred
to
herein as an “Extraordinary Dividend”), then the Warrant Price
shall be decreased, effective immediately after the effective date of such
Extraordinary Dividend, by the amount of cash and/or the fair market value
(as
determined by the Company’s Board of Directors, in good faith) of any securities
or other assets paid on each share of Common Stock in respect of such
Extraordinary Dividend.
4.3
Aggregation of Shares. If after the date hereof, and subject to the
provisions of Section 4.7, 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.
4.4
Adjustments in Warrant 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 4.3 above, the Warrant Price shall be adjusted (to the
nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (a) 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 (b) the denominator of which shall be the
number of shares of Common Stock so purchasable immediately
thereafter.
4.5
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 4.3 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 4.3, then such adjustment shall be
made pursuant to Sections 4.1, 4.3, 4.4 and this Section 4.5. The
provisions of this Section 4.5 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.
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4.6
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, 4.4 or 4.5, 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.
4.7
No
Fractional Shares. Notwithstanding any provision contained in this Warrant
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant to this
Section 4, the holder of any Warrant would be entitled, upon the exercise
of such Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up to the nearest whole number the number of the
shares of Common Stock to be issued to the Warrant holder.
4.8
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, the Public 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, 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 will have 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.
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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 Sections 6.4 and 6.5 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 (subject
to the requirements of Section 6.2), at the office of the Warrant Agent,
upon the notice referred to in Section 6.2, at the price of $0.01 per
Warrant (“Redemption Price”), provided that the last
sales price of the Common Stock on the American Stock Exchange, or other
principal market on which the Common Stock may be traded, equals or exceeds
$14.25 per share (subject to proportionate adjustment to reflect adjustment
to
the Warrant Price as provided in Section 4.4) for any 20 trading days
within a 30 trading day period ending three business days prior to the date
on
which notice of redemption is given, and a registration statement under the
Securities Act relating to shares of Common Stock issuable upon exercise of
the
Warrants is effective and expected to remain effective to and including the
Redemption Date (as defined below) and a prospectus relating to the shares
of
Common Stock issuable upon exercise of the Warrants is available for use to
and
including the Redemption Date.
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, which date shall be prior to the expiration of the Warrants (the
“Redemption Date”). 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 Warrant Register
(the “Redemption Notice”). 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 Warrants may be exercised in
accordance with Section 3 of this Agreement at any time after the
Redemption Notice 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 are met.
6.5
Co-Investment
Warrants. Notwithstanding the
foregoing, the Co-investment Warrants are not redeemable by the Company.
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.
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7.4
Registration of Common Stock. Prior to the commencement of the Exercise
Period, the Company shall use its best efforts to prepare and file with the
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 use its best efforts to take such action as is necessary to qualify for
sale, in those states in which the Warrants were initially offered by the
Company, the Shares issuable upon exercise of the Warrants. 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 shall use its best efforts to maintain
the effectiveness of such registration statement and ensure that a current
prospectus is on file with the Commission until the expiration of the Warrants
in accordance with the provisions of this Agreement; provided,
however, that the Company shall not be obligated to deliver Shares,
and
shall not have penalties nor be liable to the Warrant holder for failure to
deliver Shares pursuant to Section 3, if a registration statement is not
effective or a current prospectus is not on file with the Commission at the
time
of exercise of the Warrant by the holder. For the avoidance of doubt, the
Company may be liable to a Warrant holder for failure to fulfill its obligations
to use best efforts pursuant to this Section 7.4.
7.5
Delivery of Prospectus or Notice. Upon the exercise of any Warrant, if
the Company requests, the Warrant Agent shall deliver to the Holder of such
Warrant, prior to or concurrently with the delivery of the Shares issued upon
such exercise, in accordance with the Company’s request, either (a) a
prospectus relating to the Shares deliverable upon exercise of Warrants and
complying in all material respects with the Securities Act, or (ii) the
notice referred to in Rule 173 under the Securities Act.
8.
CONCERNING THE WARRANT AGENT AND OTHER MATTERS.
8.1
Payment of Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent
in
respect of the issuance or delivery of shares of Common Stock upon the exercise
of Warrants, but the Company shall not be obligated to pay any transfer taxes
in
respect of the Warrants or such shares.
8.2
Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1
Appointment of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty
(60) days’ prior written notice 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.
8.2.1
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.
8.2.1
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
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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 $200 per
month for its services as 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.
8.3.1
Further Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged,
and
delivered all such further 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
Chief Executive Officer, President or Chairman of the Board of the Company
and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions
of this Agreement.
8.4.1
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.
8.4.1
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 Account (as defined in that certain Investment
Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Warrant Agent as trustee thereunder), and hereby agrees not
to
seek recourse, reimbursement, payment or satisfaction for any Claim against
the
Trust 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
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deposit
of such notice, postage prepaid, addressed (until another address is filed
in
writing by the Company with the Warrant Agent), as follows:
▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
with
a
copy in each case to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇
▇.
▇▇▇▇▇▇, Esq.
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:
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
Compliance Department
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 applicable to contracts formed and to be performed
entirely within the State of New York, without giving effect to conflict of
law
provisions thereof to the extent such principles or rules would require or
permit the application of the laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York. The Company hereby waives any objection to such
non-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
Amendment. This Agreement and the warrant certificate issued hereunder
may be amended by the parties hereto without the consent of any registered
holder or any Underwriter for the purpose of curing any ambiguity, or 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, including any amendment to increase
the
Warrant Price or shorten the Exercise Period, shall require the written consent
of the registered holders of a majority of the then outstanding Warrants and
no
modification or amendment shall affect the Public Warrants, the Private Warrants
and the Co-Investment Warrants differently from one another. 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 hereof, without such
consent.
9.5
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 and, for
the purposes of Sections 6.4 and 7.4 hereof, the Underwriter, any right, remedy,
or claim under or by reason of this Warrant Agreement or of any covenant,
condition, stipulation, promise, or agreement hereof. The Underwriter shall
be
deemed to be a third-party beneficiary of this Agreement with respect to
Sections 6.4 and 7.4 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 the Underwriter with respect to
Sections 6.4 and 7.4 hereof) and their successors and assigns and of the
registered holders of the Warrants.
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9.6
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.
9.7
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.
9.8
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.
[Remainder
of page intentionally left blank]
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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:
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|
By:
|
||||||||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||||||||
|
Title:
Chief Executive Officer
|
||||||||
|
Attest:
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
|||||||
|
By:
|
||||||||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||||||||
|
Title:
Chairman
|
||||||||
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EXHIBIT
A
[FORM
OF WARRANT]
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