Form of Warrant Agreement]
by
and between
and
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
Dated
as [ ], 2008
|
||
TABLE OF
CONTENTS
This
WARRANT AGREEMENT (this “Agreement”) is made
as of [ ], 2008, by and between Open Acquisition Corp., a
Delaware corporation (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 has issued and sold to Open Acq,
LLC, a Delaware limited liability company (the “Sponsor”), an
aggregate of 3,593,750 units (the “Sponsor Units”), each
consisting of one share of common stock, par value $0.0001 per share, of the
Company (“Common
Stock”) and one warrant entitling the holder thereof to purchase one
share of Common Stock for $7.50, subject to adjustment (such warrants, the
“Initial Sponsor
Warrants”);
WHEREAS,
the Sponsor is the Registered Holder of a majority of the outstanding Warrants
and has consented to the amendments reflected in this Agreement on the signature
page hereto;
WHEREAS,
the Company has filed a registration statement (the “Registration
Statement”) on Form S-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 12,500,000 units (or up to 14,375,000 units if and to the
extent that the underwriters exercise their over-allotment option) (the “Public Units”), each
consisting of one share of Common Stock and one warrant entitling the holder
thereof to purchase one share of Common Stock for $7.50, subject to adjustment
as described herein (such warrants, the “Public
Warrants”);
WHEREAS,
the Sponsor has agreed to purchase from the Company an aggregate of 3,500,000
additional warrants at a price of $1.00 per warrant in a private placement that
will occur immediately prior to the Initial Public Offering, each such Warrant
entitling the holder thereof to purchase one share of Common Stock for $7.50,
subject to adjustment as described herein (such warrants, the “Sponsor Warrants” and
together with the Initial Sponsor Warrants, the “Private
Warrants”);
WHEREAS,
the Company has agreed to sell to the Underwriters for $100, as additional
compensation, an option to purchase up to a total of 625,000 units at $12.00 per
unit (the “Underwriter
Units”), commencing on the later of the consummation of a Business
Combination and one year from the date of the final prospectus that forms a part
of the Registration Statement (the “Prospectus”) and
expiring five years from the date of the Prospectus, and the warrants included
in the option have an exercise price of $9.00 (the “Underwriters’
Warrants” and, together with the Public Warrants and the Private
Warrants, the “Warrant(s)”);
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, each Private Warrant shall be issued in registered form only in
substantially the form of Exhibit B
hereto, each Underwriters’ Warrant shall be issued in registered form only
in substantially the form of Exhibit C
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, the Vice
Chairman, President, Chief Financial Officer, Treasurer, Chief Legal Officer,
Secretary or Assistant 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 be such at the date of issuance.
2.2 Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof.
2.3 Registration.
(a) Warrant Register. The
Warrant Agent shall maintain books (the “Warrant Register”)
for the registration of original issuance and the registration of transfer of
the Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register 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 and the Underwriters’ Warrants shall initially be
represented by one or more book-entry certificates (“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 and the Underwriters’ 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 Public Warrant or an
Underwriters’ Warrant in its account, a “Participant”).
If the
Depository subsequently ceases to make its book-entry settlement system
available for the Public Warrants and the Underwriters’ Warrants, the Company
may instruct the Warrant Agent regarding making other arrangements for
book-entry settlement. In the event that the Public Warrants and the
Underwriters’ Warrants are not eligible for, or it is no longer necessary to
have the Public Warrants and the Underwriters’ 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 and the Underwriters’ 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 and the Underwriters’ Unit of which such Public Warrant or the
Underwriters’ Warrants or part thereof was originally part of, as registered
upon the register relating to such Public Units or the Underwriters’
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.
(a) Public
Units. The securities comprising the Public Units will not be
separately transferable until five Business Days (as defined below) (or as
soon as practicable thereafter) following the earlier to occur of (i) the
expiration or termination of the underwriters’ over-allotment option or (ii) its
exercise in full (the “Detachment Date”),
subject in either case to the Company having filed a Current Report on
Form 8-K 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. For purposes of this
Agreement, “Business
Day” shall mean any day on which the Depository is open for
trading.
(b) Sponsor Units and
Underwriter Units. The securities comprising the Sponsor Units
and Underwriter Units will be separately transferable at any time, subject to
the transfer restrictions on the Underwriter Units and the Initial Sponsor
Warrants described below in Section
2.5.
2.5 Private Warrants. The
Private Warrants shall have the same terms and be in the same form as the Public
Warrants and the Underwriters’ Warrants, except that:
(i)
the Initial Sponsor Warrants may not be exercised unless and until the last
sales price of the Common Stock exceeds $14.25 per share, as such price may be
adjusted pursuant to Section 4.3 (the
“Floor Price”),
for any 20 trading days within a 30 trading day period beginning 90 days after
the consummation by the Company of a Business Combination (as defined
below);
(ii) the
Private Warrants will be non-redeemable as long as they are held by the Sponsor
or its Permitted Transferees, other than as part of a redemption of Sponsor
Units if and to the extent the underwriters’ over-allotment option is not
exercised in full;
(iii) the
Private Warrants may be exercised at the option of the holder on a cash or
cashless basis;
(iv) the
Initial Sponsor Warrants may not be (and the Common Stock issuable upon exercise
of such Warrants may not be) transferred, assigned or sold, directly or
indirectly, other than to a Permitted Transferee, until 180 days after the
consummation by the Company of a Business Combination; and
(v) the
Sponsor Warrants may not be (and the Common Stock issuable upon exercise of such
Warrants may not be) transferred, assigned or sold, directly or indirectly,
other than to a Permitted Transferee, until after the consummation by the
Company of a Business Combination.
“Business Combination”
means the Company’s initial acquisition of one or more assets or operating
businesses with a fair market value of at least 80% of our net assets held in
trust (net of taxes and amounts disbursed to the Company for working capital
purposes and excluding the amount of the Underwriters’ deferred discount) at the
time of the acquisition (or, if the Company’s stockholders have voted to extend
the period to complete an acquisition, at the time of the extension vote)
through a merger, capital stock exchange, asset or stock
acquisition
or other similar business combination, which may be consummated only if a
majority of the shares of common stock voted by the public stockholders are
voted in favor of the acquisition and less than 40% of the public stockholders
both vote against the proposed acquisition and exercise their conversion
rights.
“Permitted Transferee”
means (i) the Company, any of the Company’s officers, directors and
employees, any Affiliates or Family Members of such individuals, the Sponsor,
any Affiliates of the Company or the Sponsor and any officers, directors,
members and employees of the Sponsor or such Affiliates, (ii) any charitable
organization, (iii) any individual pursuant to a qualified domestic relations
order, (iv) if the transferor is a corporation, partnership or limited liability
company, any stockholder, partner or member of the transferor, and (v) any
individual or entity by virtue of laws or agreements governing descent or
distribution upon the death or dissolution of the transferor; provided, that, any such
transferees agree in writing to become subject to the same transfer restrictions
as the transferor.
The term
“Affiliate” has
the meaning set forth in Rule 405 under the Securities Act (in effect on the
date hereof).
“Family Member” of a
person means such person’s present spouse and/or domestic partner, parents,
lineal ascendants or descendants or any siblings of any of the foregoing, any
descendants of any sibling of such person, or any estate planning vehicle formed
primarily for the benefit of such person or any of the foregoing
persons.
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 shares of Common Stock stated therein,
at the price of $7.50 per whole share in the case of the Private Warrants and
Public Warrants and $9.00 per whole share in the case of the Underwriters’
Warrants, subject to the adjustments provided in Article IV
hereof and in the last sentence of this Section 3.1. The
term “Warrant
Price” as used in this Agreement refers to the price per share at which
Common Stock may be purchased at the time a Warrant is exercised. The
Company in its sole discretion may lower the Warrant Price at any time prior to
the Expiration Date (as defined below) for a period of not less than 20 Business
Days; provided,
however, that any such reduction
shall be identical in percentage terms among all of the Warrants.
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 a
Business Combination and the first anniversary of the date of the final
prospectus that forms a part of the Registration Statement, and terminating at
5:00 p.m., New York time on the earlier to occur of (i) the fifth
anniversary of the date of the Prospectus and (ii) the date fixed for
redemption of the Warrants as provided in Article VI of
this Agreement (“Expiration Date”);
provided, however, that, (i) the Warrants
shall not be exercisable and the Company shall not be obligated to issue Common
Stock in respect thereof unless, at the time a holder seeks to exercise such
Warrants, a prospectus relating to the Common Stock issuable upon exercise of
the Warrants is current and the issuance of such Common Stock has been
registered or qualified or deemed to be exempt under the securities laws of the
state of residence of the holder of such Warrants and (ii) in addition to
the exercise conditions set forth in this Section 3.2, the
Initial Sponsor Warrants may not be exercised unless and until the last sales
price of the Common Stock exceeds the Floor Price for
any 20
trading days within a 30 trading day period beginning 90 days after the
consummation by the Company of a 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 the close of business on the Expiration
Date. The Company in its sole discretion may extend the duration of
the Warrants by delaying the Expiration Date; provided, however, that any
extension of the duration of the Warrants must apply equally to all of the
Warrants. 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 Depositary to an account of the Warrant Agent at the
Depositary 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, Exhibit B or
Exhibit C as
applicable, the shares of Common Stock 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 share of
Common Stock 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 the Common Stock, and the issuance of the Common Stock in full, in
lawful money of the United States, by cash, by bank wire transfer in immediately
available funds or by certified check or bank draft payable to the Company;
provided, however, that the
holders of the Initial Sponsor Warrants and the Sponsor Warrants may pay the
Warrant Price by surrendering such Warrants for that number of shares of Common
Stock
equal to the quotient obtained by dividing (x) the product of the number of
shares of Common Stock underlying the Warrant, multiplied by the difference
between the Fair Market Value and the Warrant Price by (y) the Fair Market
Value. The “Fair Market Value”
means the average last sales price of the Common Stock in the principal trading
market for the Common Stock 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 the Initial Sponsor Warrants or the Sponsor Warrants, as
applicable, are exercised.
(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 shares of Common Stock (the
“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 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 the Participant, as the case may be.
(v) 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 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.
(vi) 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. Starting with the Exercise Date, 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.
(vii) Subject
to Section 4.7,
Warrants may be exercised only in whole numbers of 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 Common Stock upon
exercise of the Warrant is effective or (ii) in the opinion of counsel to
the Company, the issuance of the Common Stock upon the exercise of the Warrants
is exempt from the registration requirements of the Securities Act and such
securities are 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 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 shares of Common Stock 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,
maintain an effective registration statement and ensure a current prospectus is
available for delivery by the Warrant Agent; provided further, that the Company has
fulfilled its obligation to use its best efforts to register the shares of
common stock underlying the Warrants under the blue sky laws of the states of
residence of the Warrant holders, to the extent an exemption is not
available.
(c) 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.
(d) 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 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 net
cash settle the exercise of the Warrants.
ARTICLE IV
ADJUSTMENTS
4.1 Stock Dividends;
Split-Ups. If after the date hereof, and subject to the
provisions of Section 4.7, the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split up of shares of Common Stock,
or other similar event, then, on the effective date of such stock dividend,
split up or similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such increase in
outstanding shares of Common Stock.
4.2 Aggregation of Shares. If
after the date hereof, and subject to the provisions of Section 4.7, 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.
4.3 Adjustments in Warrant
Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and
4.2 above, each
of the Warrant Price and the Floor Price 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 shares of Common Stock purchasable upon the
exercise of the Warrants immediately prior to such adjustment and (y) the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter; 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.
4.4 Replacement of Securities
upon Reorganization, etc. In
case of any reclassification or reorganization of the outstanding shares of
Common Stock (other than a change covered by Section 4.1 or
4.2 hereof or
that solely affects the par value of such shares of Common Stock), or in the
case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the assets or other
property of the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the 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 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, by a Registered Holder of the
number of shares of Common Stock of the Company obtainable upon exercise of the
Warrants immediately prior to such event; and if any reclassification also
results in a change in shares of Common Stock covered by Sections 4.1 or
4.2, then such
adjustment shall be made pursuant to Sections 4.1,
4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4
shall similarly apply to successive reclassifications, reorganizations, mergers
or consolidations, sales or other transfers.
4.5 Extraordinary Dividends. If
the Company, at any time during the Exercise Period, shall pay a dividend or
make a distribution in cash, securities or other assets to the holders of Common
Stock (or other shares of the Company’s capital stock into which the Warrants
are convertible), other than (i) as described in Sections 4.1,
4.2 or 4.4,
(ii) regular quarterly or other periodic dividends, (iii) in
connection with the conversion rights of the holders of Common Stock upon
consummation by the Company of a Business Combination or (iv) 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 and the Floor Price shall be decreased
(other than with respect to the Underwriters’ Warrants), 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 (or other shares of the Company’s capital stock 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.
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 the shares of Common Stock 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 Common Stock rights to subscribe for or to
purchase any securities convertible into shares of Common Stock or shares of
stock of any class or any other securities, rights or options, (b) issue
any rights, options or warrants entitling the holders of Common Stock to
subscribe for shares of Common Stock or (c) make a tender offer, redemption
offer or exchange offer with respect to the Common Stock, 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 Common Stock,
if any such date is to be fixed, and shall briefly indicate the effect of such
action on the Common Stock and on the number and
kind of
any other shares of stock and on other property, if any, and the number of
shares of Common Stock 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 the Common Stock 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 Common Stock, 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.
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 Private
Warrants that are held by the Sponsor or any Permitted Transferees) 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 Common Stock 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 date on which notice of redemption is given; and
provided, further that the Warrants
(and the Common Stock issuable upon the exercise of such Warrants) are covered
by an effective registration statement from the date of notice of redemption
through the date fixed for redemption. 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. In the event the Company calls any such Warrants for
redemption pursuant to this Section 6.1, the
Company shall have the option to require all (but not part) of the 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 the Registered Holders of such Warrants to exercise on a
cashless basis, each holder of such Warrants shall pay the Warrant
Price by
surrendering such Warrants for that number of shares of Common Stock equal to
the quotient obtained by dividing (x) the product of the number of shares
of Common Stock underlying the Warrants, multiplied by the difference between
the Redemption Fair Market Value and the Warrant Price of the Warrants by
(y) the Redemption Fair Market Value. The “Redemption Fair Market
Value” shall mean the average reported last sales price of the Common
Stock in the principal trading market for the Common Stock 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 prior to the date on which the notice of
redemption is sent to the Registered Holders of such Warrants.
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 Initial Sponsor Warrants or Sponsor
Warrants that are held by the Sponsor or any Permitted Transferees) 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, for cash
or, if required by the Company, on a cashless basis, in accordance with Section 6.1 of
this Agreement at any time after notice of redemption shall have been given by
the Company pursuant to Section 6.2
hereof and prior to the time and date fixed for redemption. On and
after the redemption date, the 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 redemption pursuant to Section 6.3.
ARTICLE VII
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 for the election of directors of the Company or any other
matter.
7.2 Lost, Stolen, Mutilated, or Destroyed
Warrants. If any Warrant is lost, stolen, mutilated, or
destroyed, the Company and the Warrant Agent may on such terms as to indemnity
or otherwise as they may in their discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute a substitute
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated, or destroyed Warrant shall be at any time enforceable by
anyone.
7.3 Reservation of Common
Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of all outstanding Warrants
issued pursuant to this Agreement.
7.4 Registration of Common
Stock. 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 Warrants were
initially offered by the Company, the issuance of the Common Stock issuable upon
exercise of the Warrants. In either case, the Company shall use its
best efforts to (i) 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 Warrants in accordance with
the provisions of this Agreement, and (ii) register the shares of Common Stock
underlying the Warrants under the blue sky laws of the states of residence of
the existing Warrant holders, to the extent an exemption is not
available.
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 shares of Common Stock 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 shares of the Common Stock.
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.
(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 Common Stock 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 such 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, Vice Chairman, President, Chief Financial Officer,
Treasurer, Chief Legal Officer, Secretary or Assistant 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.
(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 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 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
Wilmington 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.
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:
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: 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: [
]
9.3 Applicable Law. The
validity, interpretation and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York,
without giving effect to conflict of laws. The Company 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 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 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.
9.5 Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
City and State of New York, for inspection by the Registered Holder of any
Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6 Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original and all such
counterparts shall together constitute but one and the same
instrument.
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, 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. 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. 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 constitutes the entire understanding
of the parties and supersedes all prior agreements (including the Amended
Warrant Agreement), 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.
[Signature page
follows]
IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties hereto as of the date first
above written.
The
undersigned, being the holder of 3,593,750 Initial Sponsor Warrants and
3,500,000 Sponsor Warrants, hereby consents to the execution and delivery of
this Agreement:
|
OPEN
ACQ LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT A
Form of Public
Warrant
SPECIMEN
WARRANT CERTIFICATE
| NUMBER |
____________
WARRANTS
|
| ____________- |
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 p.m.
NEW YORK CITY TIME, ON THE EXPIRATION DATE
NEW YORK CITY TIME, ON THE EXPIRATION DATE
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 on the fifth anniversary of the date of the final prospectus
that forms a part of the Registration Statement (unless earlier redeemed in
accordance with the terms hereof) and entitling the holder thereof to purchase
one fully paid and non-assessable share of Common Stock, par value $0.0001 per
share (“Common
Stock”), of Open Acquisition Corp., a Delaware corporation (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 a Business Combination
or (ii) the first anniversary of the date of the final prospectus that
forms a part of the Registration Statement, such number of shares of Common
Stock 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 at the office or agency of the Warrant Agent, Continental Stock Transfer
& Trust Company (such payment to be made to the Warrant Agent in lawful
money of the United States, by cash, by bank wire transfer in immediately
available funds, or by certified check or bank draft payable to the Company or
on a cashless basis at the option of the Company as described below), 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 shares of
Common Stock purchasable upon the exercise of each Warrant may, subject to
certain conditions, be adjusted. The term Warrant Price as used in
this Warrant Certificate refers to the price per share at which shares of Common
Stock may be purchased at the time the Warrant is exercised.
Notwithstanding
the foregoing, and subject to Section 7.4 of
the Warrant Agreement, no Warrant may be exercised unless (i) a
registration statement under the Securities Act of 1933, as amended (the “Securities Act”),
with respect to the issuance of Common Stock upon exercise of the Warrant is
effective or (ii) in the opinion of counsel to the Company, the issuance of
the Common Stock upon the exercise of the Warrants is exempt from the
registration requirements of the Securities Act.
No
fraction of a 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 a share of Common Stock, the Company shall,
upon exercise, round up to the nearest whole number the number of shares of
Common Stock to be issued to the warrant holder.
Upon any
exercise of the Warrant for less than the total number of full shares of Common
Stock provided for herein, there shall be issued to the Registered Holder hereof
or his assignee a new Warrant Certificate covering the number of shares of
Common Stock for which the Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency 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
office or agency 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
stockholder 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 and the Underwriters’ Warrants, at the option of the Company, at
any time after such Warrants become exercisable and prior to their expiration,
at the office 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 Common Stock 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 date on which notice of redemption is given; and
provided, further that with respect to
the Public Warrants and the Underwriters’ Warrants such Warrants (and the Common
Stock issuable upon the exercise of such Warrants) are covered by an
effective
registration statement from the date of notice of redemption through the date
fixed for redemption. 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 (but not
part) of the 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, the holder of such Warrants shall pay
the Warrant Price by surrendering such Warrants for that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the product of
the number of shares of Common Stock underlying the Warrants, multiplied by the
difference between the Redemption Fair Market Value and the Warrant Price of the
Warrants by (y) the Redemption 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 [ ],
2008, 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.
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
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 shares of Common Stock issuable upon the exercise of such Warrants,
and requests that Certificates for such shares shall be issued in the name
of
|
(PLEASE TYPE OR
PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
|
(PLEASE PRINT OR
TYPE NAME AND ADDRESS)
|
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:
|
Dated:
|
|||
|
(SIGNATURE)
|
|||
|
(ADDRESS)
|
|||
|
(TAX
IDENTIFICATION NUMBER)
|
|||
ASSIGNMENT
To Be
Executed by the Registered Holder in Order to Assign Warrants
For Value
Received, __________________________________ hereby sells, assigns, and
transfers unto
|
(PLEASE TYPE OR
PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
|
(PLEASE PRINT OR
TYPE NAME AND ADDRESS)
|
___________________________________
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.
|
Dated:
|
|||
|
(SIGNATURE)
|
|||
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.
Form of Private
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 [ ], 2008, 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
| NUMBER |
____________
WARRANTS
|
| ____________- |
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 p.m.
NEW YORK
CITY TIME, ON THE EXPIRATION DATE
CUSIP
68321F112
[INITIAL
SPONSOR] [SPONSOR]
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 on the fifth anniversary of the date of the final prospectus
that forms a part of the Registration Statement (unless earlier redeemed in
accordance with the terms hereof) and entitling the holder thereof to purchase
one fully paid and non-assessable share of Common Stock, par value $0.0001 per
share (“Common
Stock”), of Open Acquisition Corp., a Delaware corporation (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 a Business Combination
or (ii) the first anniversary of the date of the final prospectus that
forms a part of the Registration Statement, such number of shares of Common
Stock 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 at the office or agency of the Warrant Agent, Continental Stock Transfer
& Trust Company (such payment to be made to
the
Warrant Agent in lawful money of the United States, by cash, by bank wire
transfer in immediately available funds, or by certified check or bank draft
payable to the Company or, with respect to the Initial Sponsor Warrants and the
Sponsor Warrants, on a cashless basis as described in Section 3.3(a)
of the Warrant Agreement and below), but only subject to the conditions set
forth herein and in the Warrant Agreement; provided, that the Initial
Sponsor Warrants may not be exercised unless and until the last sales price of
the Common Stock exceeds the Floor Price for any 20 trading days within a 30 day
trading period beginning 90 days after a Business Combination. The
Warrant Agreement provides that upon the occurrence of certain events the
Warrant Price, the Floor Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant, may, subject to certain
conditions, be adjusted. The term Warrant Price as used in this
Warrant Certificate refers to the price per share at which shares of Common
Stock may be purchased at the time the Warrant is exercised.
Notwithstanding
the foregoing, and subject to Section 7.4 of
the Warrant Agreement, no Warrant may be exercised unless (i) a
registration statement under the Securities Act of 1933, as amended (the “Securities Act”),
with respect to the issuance of Common Stock upon exercise of the Warrant is
effective or (ii) in the opinion of counsel to the Company, the issuance of
the Common Stock upon the exercise of the Warrants is exempt from the
registration requirements of the Securities Act.
No
fraction of a share of Common Stock 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 a share of Common Stock, the Company shall,
upon exercise, round up to the nearest whole number the number of shares to be
issued to the Warrant holder.
Upon any
exercise of the Warrant for less than the total number of full shares of Common
Stock provided for herein, there shall be issued to the Registered Holder hereof
or his assignee a new Warrant Certificate covering the number of shares of
Common Stock for which the Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency 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
office or agency 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
stockholder of the Company.
Subject
to Section 6.4 of
the Warrant Agreement, the Company may redeem all, but not less than all, of the
Private Warrants that are not held by the Sponsor or any Permitted Transferees,
at the option of the Company, at any time after the Warrants become exercisable
and prior to their expiration, at the office 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 Common Stock 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 date on which notice of redemption is given; and
provided further that the
Warrants (and the Common Stock issuable upon exercise of such Warrants) are
covered by an effective registration statement from the date of notice of
redemption through the date fixed for redemption. 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 (but not
part) of the 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, the holder of such Warrants shall pay
the Warrant Price by surrendering such Warrants for that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the product of
the number of shares of Common Stock underlying the Warrants, multiplied by the
difference between the Redemption Fair Market Value and the Warrant Price of the
Warrants by (y) the Redemption 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 [ ],
2008, 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.
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
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 shares of
Common Stock issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
|
(PLEASE TYPE OR
PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
|
(PLEASE PRINT OR
TYPE NAME AND ADDRESS)
|
ASSIGNMENT
To Be
Executed by the Registered Holder in Order to Assign Warrants
For Value
Received, __________________________________ hereby sells, assigns, and
transfers unto
|
(PLEASE TYPE OR
PRINT NAME AND ADDRESS)
|
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and be
delivered to
|
(PLEASE PRINT OR
TYPE NAME AND ADDRESS)
|
___________________________________
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.
|
Dated:
|
|||
|
(SIGNATURE)
|
|||
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 C
Form of Underwriters’
Warrant