WARRANT AGREEMENT
Exhibit
4.1
THIS WARRANT AGREEMENT (this
“Agreement”) is entered into as of the 21st day of May 2008, by and among
InterAmerican Acquisition Group Inc., a Delaware corporation (the “Company”) and
the persons listed on Schedule A, attached
hereto (collectively the “Founders” and individually, a “Founder”).
W I T N E S S E T
H:
WHEREAS, the Company intends
to grant and issue warrants (the “Warrants”) to purchase shares of the Company’s
common stock (the “Common Stock” and, together with the Warrants, the
“Securities”);
WHEREAS, the Company shall
issue to the Founders, and the Founders agree to accept, the number of Warrants
set forth on Schedule
A hereto with respect to each such Founder, subject to the terms and
conditions set forth below;
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Issuance of
Warrants. On the basis of the representations, warranties,
covenants and agreements, and subject to the terms and conditions set forth
herein, upon the date hereof, the Company agrees to grant, issue, transfer,
convey and deliver to the Founders or cause to be delivered to the Founders and
the Founders agree to accept delivery from the Company of a number of Warrants,
with an exercise price per share equal to $.01, as set forth on Schedule A
hereto. The Company shall deliver or cause to be delivered to the
Founders one or more certificates representing the Warrants of the Company
registered in the applicable Founder’s name.
2. Terms and Restrictions of
the Warrants.
(a) Subject
to the terms of this Section 2, the Warrants shall, upon the date hereof,
(i) be valid for a term commencing on the date hereof and expiring on the
earlier of (x) January
31, 2009 if a business combination is consummated in 2008 or 90 days after the
consummation of a business combination if such business combination occurs in
2009 or (y) or September 4, 2009 and (ii) shall be immediately exercisable for
shares of Common Stock of the Company.
(b) The
Founders shall hold and be restricted from selling or transferring the
Securities, except as set forth below, until the second anniversary of the
effective date of the Company’s initial public offering, September 4, 2009 (the
“Holding Period”). During the Holding Period, no sale, transfer or
other disposition may be made of any of the Securities except (i) by gift to a
member of a Founder’s immediate family or to a trust, the beneficiary of which
is a Founder or a member of a Founder’s immediate family, (ii) by virtue of the
laws of descent and distribution upon death of any Founder, or (iii) pursuant to
a qualified domestic relations order; provided, however, that such
permissive transfers may be implemented only upon the respective transferee’s
written agreement to be bound by the terms and conditions of this
Agreement. Following the Holding Period, the Founders shall be free
to sell or transfer the Securities. If the
Warrants
are exercised prior to September 4, 2009, then the Common Stock received from
such exercise shall be delivered to by the Company to Continental Stock Transfer
& Trust Company to held in trust with and under the same terms as the other
Founder’s stock until September 4, 2009.
(c) If the
Company shall determine to proceed with the preparation and filing of a
registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), in connection with the proposed offer and sale of any of its
securities by it or any of its security holders (other than a registration
statement on Form X-0, X-0 or other limited purpose form), then the Company will
give written notice of its determination to the Founders. Upon the
written request from the Founders representing a majority of the outstanding
Securities, the Company will cause all of the Warrants and the shares of Common
Stock issuable upon the exercise of the Warrants to be included in such
registration statement, all to the extent requisite to permit the resale by the
Founders of the Warrants and the shares of Common Stock issuable upon the
exercise of the Warrants. Any Securities of a Founder that are to be
included in an underwritten public offering pursuant to this Section 2(c) shall
be offered and sold upon such terms as the managing underwriters thereof
determine; provided, however, that any such terms must be the same as the terms
to which any other holder of securities being registered will be bound and must
not be substantially different from the terms pursuant to which the Company and
any other security holder selling securities in such offering are selling such
securities. Notwithstanding anything to the contrary contained
herein, the Company may withdraw any registration statement referred to in this
Section 2(c) in accordance with the provisions of the Securities Act without
thereby incurring any liability to any Founder. Prior to the date
that the Securities and Exchange Commission declares the registration statement
effective, if necessary, the Founders will enter into a warrant agreement, or
amend any existing warrant agreement between the Company and Continental Stock
Transfer & Trust Company, as warrant agent (the “Warrant Agent”), to provide
that the Warrant Agent shall act on behalf of the Company in connection with the
issuance, registration, transfer, exchange and exercise of the
Warrants.
(d) Notwithstanding
Sections 2(a) and (b), if the Founders are notified by the Company during the
Holding Period, pursuant to Section 5.4 hereof, that the Company is being
liquidated, then the Founders shall promptly destroy the certificates
representing the Warrants; provided further, however, that if, after the Company
(or the surviving entity) consummates a merger, capital stock exchange, asset
acquisition or other similar business combination (a “Business Combination”) and
subsequently consummates a liquidation, merger, stock exchange or other similar
transaction which results in all of the stockholders of such entity having the
right to exchange their securities for cash, other securities or other property,
the Founders will, upon notice by the Chief Executive Officer or Chief Financial
Officer of the Company that such transaction is then being consummated, be
released from the restrictions on the Securities set forth in Section 2(b) so
that the Founders can similarly have the right to exchange their
Securities in connection with such transaction. The Founders shall
have no further duties hereunder after the disbursement or destruction of the
Warrants in accordance with this Section 2(d).
(e) If
the Company solicits approval of its stockholders in connection with a Business
Combination, each Founder will vote all Shares of Common Stock owned by him with
the majority of the votes cast by the public stockholders of the
Company.
3. Representations and
Warranties of the Company. The Company hereby represents and
warrants to each of the Founders as follows:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to own its properties and assets and to carry on its business as
now conducted and as presently proposed to be conducted.
(b) All
corporate action on the part of the Company’s directors necessary for the
authorization, execution, delivery of, and the performance of all obligations of
the Company under, this Agreement and the Warrants, has been taken or will be
taken prior to the date hereof, and this Agreement constitutes, and the Warrants
when executed and delivered, will constitute, valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditor’s rights generally and (ii) the effect of rules of law
governing the availability of equitable remedies.
(c) The
Company has the corporate power to execute and deliver this Agreement and the
Warrants to be issued to the Founders hereunder, to issue the Warrants and to
carry out and perform all its obligations under this Agreement and the
Warrants.
(d) The
Company is not in violation or default of any provisions of its Certificate of
Incorporation or Bylaws or in any material respect of any instrument, judgment,
order, writ, decree, or contract to which it is a party or by which it is
bound. The execution, delivery and performance of and compliance with
this Agreement and the Warrants have not resulted and will not result in any
material violation of, or conflict with, any instrument, judgment, order, writ,
decree, or contract to which the Company is a party or by which the Company is
bound.
4. Representations and
Warranties of the Founders. In order to induce the Company to
enter into this Agreement and to issue the Warrants, each Founder hereby
represents and warrants; solely with respect to itself and not any other
Founder; to the Company as follows:
(a) This
Agreement constitutes each Founder’s valid and legally binding obligation,
enforceable in accordance with its terms except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and (ii) the effect of rules of law governing the availability of
equitable remedies. Each Founder represents that it has full power
and authority to enter into this Agreement.
(b) The
Securities are being accepted for investment for such Founder’s own account, not
as a nominee or agent, and not with a view to the public resale or distribution
thereof within the meaning of the Act.
(c) Each
Founder is an “accredited investor” within the meaning of Regulation D
promulgated under the Act.
(d) Each
Founder understands that the Securities are characterized as “restricted
securities” under the Act and Rule 144 promulgated thereunder inasmuch as they
are being accepted from the Company in a transaction not involving a public
offering, and that under the Act and applicable regulations thereunder such
securities may not be resold without registration under the Act except in
certain limited circumstances. The certificates for such Warrants
shall contain a legend indicating such restriction on
transferability.
5
Warrant
Adjustments.
5.1 Stock Dividends;
Split-Ups. If after the date hereof, and subject to the
provisions of Section 5.5 below, the number outstanding securities of the
Company is increased by a stock dividend payable in the Company’s securities, or
by a split-up of securities, 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 securities.
5.2 Aggregation of
Securities. If after the date hereof, and subject to the
provisions of Section 5.5, the number of outstanding securities is decreased by
a consolidation, combination, reverse stock split or reclassification of
securities or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar
event, the number of Securities issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding Securities.
5.3 Replacement of Securities
upon Reorganization of the Company, etc. In case of any
reclassification or reorganization of the outstanding securities of
the Company (other than a change covered by Section 5.1 or 5.2 hereof or that
solely affects the par value of such securities), 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 securities), 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 immediately theretofore
purchasable and receivable upon the exercise of the rights represented thereby,
the kind and amount of shares of stock or other securities 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 Securities covered by Section 5.1
or 5.2, then such adjustment shall be made pursuant to Sections 5.1, 5.2 and
this Section 5.3. The provisions of this Section 5.3 shall similarly
apply to successive reclassifications, reorganizations, mergers or
consolidations, sales, other transfers, or similar transactions.
5.4 Notices of Changes in
Warrant. Upon every adjustment of the number of Shares of
Common Stock issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Founders, which notice shall state the increase or
decrease, if any, in the number of
Shares of
Common Stock 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 5.1, 5.2, 5.3 or this 5.4, then, in any such event, the Company
shall give written notice to each Founder, at the last address set forth for
such Founder in the warrant register, of the record date of 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.
5.5 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 Section 5, 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.
5.6 Form of
Warrant. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 5, and Warrants issued after such
adjustment may state the same number of Shares of Common Stock 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.
6
Miscellaneous.
(a) This
Agreement (i) cannot be amended, modified or terminated except in writing signed
by all of the parties hereto, (ii) sets forth the entire understanding of the
parties with respect to the subject matter hereof and (iii) supersedes any and
all prior agreements or arrangements with respect thereto.
(b) The
parties agree to execute and deliver such other and further documents and to
take such action as may be reasonably necessary or desirable to give effect to
any of the provisions of this Agreement.
(c) If
any provisions of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall attach only to such provision and
shall not in any way affect or render invalid or unenforceable any other
severable provision of this Agreement, and this Agreement shall be carried out
as if any invalid or unenforceable provision were not embodied
herein.
(d) The
Section headings contained herein are for the purposes of convenience only and
are not intended to define or limit the contents thereof.
(e) This
Agreement shall be governed by, construed and enforced in accordance with the
internal laws of the State of Delaware, without reference to principles of
conflict of laws.
(f) This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their respective successors and permitted assigns.
(g) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the day and year first
above written.
By:_____________________________________
Name: Xxxxxxx X.
Xxxxx
Title: Chief
Executive Officer
[NAME OF FOUNDER IF
AN ENTITY]
By:____________________________________
Name:
[name]
Title: [title if
applicable]
______________________________________
[NAME
OF FOUNDER]
SCHEDULE
A
Warrants Issued to
Founders
Name of
Founder Number of
Warrants
Xxxxxxx
X.
Xxxxx
76,326
Xxxxxxx
X.
Xxxxxx
50,884
InterAmerican
Capital
Partners
II,
LLC
32,664
Xxxxxxx
X.
Xxxxxxx 6,938
Xxxxx
Xxxxx
3,469
Xxxxxxxx
X. Xxxxxx
Xxxxxxx 3.469
Xxxxxx
Xxxxxxxx
11,250
Total
185,000