EXHIBIT 4.5
FORM OF
`WARRANT AGREEMENT
This Warrant Agreement (this "Agreement") made as of _________ __,
2005, by and between Media & Entertainment Holdings, Inc., a Delaware
corporation, with offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000
("Company"), and Continental Stock Transfer & Trust Company, a New York
corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public
Offering") of Units ("Units") and, in connection therewith, has determined to
issue and deliver up to 34,500,000 warrants ("Public Warrants") to the public
investors, each of such Public Warrants evidencing the right of the holder
thereof to purchase one share of common stock, par value $.0001 per share, of
the Company's Common Stock ("Common Stock") for $5.00, subject to adjustment as
described herein; and
WHEREAS, the Company has determined to issue and deliver up to
1,500,000 warrants ("Underwriters' Warrants") to Jesup & Xxxxxx Securities
Corporation ("Jesup & Xxxxxx") or its designees, each of such Underwriters'
Warrants evidencing the right of the holder thereof to purchase one share of
Common Stock for $6.25, subject to adjustment as described herein (the
Underwriters' Warrants together with the Public Warrants, being referred to
herein as the "Warrants"),
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement, No. 333-__________ on Form S-1
("Registration Statement") for the registration under the Securities Act of
1933, as amended ("Act") of, among other securities, the Warrants and the Common
Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant
Agent to act as agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such
appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. WARRANTS.
2.1 FORM OF WARRANT. Each Public Warrant and Underwriters'
Warrants shall be issued in registered form only, shall be in substantially the
forms of Exhibit A and Exhibit B hereto, respectively, the provisions of which
are incorporated herein and shall be signed by, or bear the facsimile signature
of, the Chairman of the Board or Chief Executive Officer and Treasurer,
Secretary or Assistant Secretary of the Company and shall bear a facsimile of
the Company's seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
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.
2.3.1 WARRANT REGISTER. The Warrant Agent shall maintain
books ("Warrant Register") for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2 REGISTERED HOLDER. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register ("registered holder"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.4 DETACHABILITY OF WARRANTS. The securities comprising the Units
will not be separately transferable until 20 trading days following the earlier
to occur of the expiration of Jesup & Lamont's over-allotment option or its
exercise in full unless Jesup & Xxxxxx informs the Company of its decision to
allow earlier separate trading, but in no event will Jesup & Xxxxxx allow
separate trading of the securities comprising the Units until the Company files
a Current Report on Form 8-K, which includes an audited balance sheet reflecting
the receipt by the Company of the gross proceeds of the Public Offering
including the proceeds received by the Company from the exercise of the
Underwriter's over-allotment option, if the over-allotment option is exercised
prior to the filing of the Form 8-K.
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2.5 PUBLIC WARRANTS AND UNDERWRITERS' WARRANTS. Except for the
exercise price, the Underwriters' Warrants shall have the same terms and be in
the same form as the Public Warrants.
3. TERMS AND EXERCISE OF WARRANTS.
3.1 WARRANT PRICE. Each Public Warrant shall, when countersigned
by the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Public Warrant and of this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the
price of $5.00 per whole share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. Each Underwriters' Warrant
shall, when countersigned by the Warrant Agent, entitle the registered holder
thereof, subject to the provisions of such Underwriters' Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common
Stock stated therein, at the price of $6.25 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term "Warrant Price" as used in this Warrant Agreement refers
to the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date; provided 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 ("Exercise Period") commencing on the later of the consummation by
the Company of a merger, capital stock exchange, asset acquisition or other
similar business combination ("Business Combination") (as described more fully
in the Company's Registration Statement) or _________ ___, 2006, and terminating
at 5:00 p.m., New York City time on the earlier to occur of (i) ________ ___,
2009 or (ii) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement ("Expiration Date"). Except with respect to the
right to receive the Redemption Price (as set forth in Section 6 hereunder),
each Warrant not exercised on or before the Expiration Date shall become void,
and all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company in its
sole discretion may extend the duration of the Warrants by delaying the
Expiration Date; provided that any such extension shall be identical in duration
among all of the Warrants.
3.3 EXERCISE OF WARRANTS.
3.3.1 PAYMENT. Subject to the provisions of the Warrant and
this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it, at the office
of the Warrant Agent, or at the office of its successor as Warrant Agent, in the
Borough of Manhattan, City and State of New York, with the subscription form, as
set forth in the Warrant, duly executed, and by paying in full, in lawful money
of the United States, in cash, good certified check or good bank draft payable
to the order of the Company, the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all applicable taxes due
in connection with the exercise of the Warrant, the exchange of the Warrant for
the Common Stock, and the issuance of the Common Stock.
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3.3.2 ISSUANCE OF CERTIFICATES. As soon as practicable
after the exercise of any Warrant and the clearance of the funds in payment of
the Warrant Price, the Company shall issue to the registered holder of such
Warrant a certificate or certificates for the number of full shares of Common
Stock to which he is entitled, registered in such name or names as may be
directed by him, and if such Warrant shall not have been exercised in full, a
new countersigned Warrant for the number of shares as to which such Warrant
shall not have been exercised. Notwithstanding the foregoing, the Company shall
not be obligated to deliver any securities pursuant to the exercise of a Warrant
unless (i) a registration statement under the Act with respect to the Common
Stock is effective or (ii) in the opinion of counsel to the Company, the
exercise of the Warrants is exempt from the registration requirements of the 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.
3.3.3 VALID ISSUANCE. All shares of Common Stock issued
upon the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.4 DATE OF ISSUANCE. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
4. ADJUSTMENTS.
4.1 STOCK DIVIDENDS SPLIT UPS. If after the date hereof, and
subject to the provisions of Section 4.6, 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 issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares.
4.2 AGGREGATION OF SHARES. If after the date hereof, and subject
to the provisions of Section 4.6, the number of outstanding shares of Common
Stock is decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares issuable on exercise of
each Warrant shall be decreased in proportion to such decrease in outstanding
shares.
4.3 ADJUSTMENTS IN EXERCISE PRICE. Whenever the number of shares
of Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to
the nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be
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the number of shares of Common Stock purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (y) the denominator of which
shall be the number of shares of Common Stock so purchasable immediately
thereafter.
4.4 REPLACEMENT OF SECURITIES UPON REORGANIZATION, ETC. In case of
any reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such shares of Common Stock), or in the case of any merger or
consolidation of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or reorganization of the
outstanding shares of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the assets or other property of the Company as
an entirety or substantially as an entirety in connection with which the Company
is dissolved, the Warrant holders shall thereafter have the right to purchase
and receive, upon the basis and upon the terms and conditions specified in the
Warrants and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of shares of stock or other securities
or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, by a Warrant 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 Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 NOTICES OF CHANGES IN WARRANT. Upon every adjustment of the
Warrant Price or the number of shares issuable on exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any
such event, the Company shall give written notice to the Warrant holder, at the
last address set forth for such holder in the warrant register, of the record
date or the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such event.
4.6 NO FRACTIONAL SHARES. Notwithstanding any provision contained
in this Warrant Agreement to the contrary, the Company shall not issue
fractional shares upon exercise of Warrants. If, by reason of any adjustment
made pursuant to this Section 4, the holder of any Warrant would be entitled,
upon the exercise of such Warrant, to receive a fractional interest in a share,
the Company shall, upon such exercise, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant holder.
4.7 FORM OF WARRANT. The forms of Public Warrant and Underwriters'
Warrant need not be changed because of any adjustment pursuant to this Section
4, and Warrants issued after such adjustment may state the same Warrant Price
and the same number of shares as is stated in
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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.
4.8 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 or exchange
offer with respect to the Common Stock, the Company shall send to the Warrant
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
after giving effect to any adjustment pursuant to this Article 4 which would be
required as a result of such action. Such notice shall be given as promptly as
practicable after the Board of Directors of the Company (the "Board") 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.
4.9 OTHER EVENTS. If any event occurs as to which the foregoing
provisions of this Article 4 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board, fairly and
adequately protect the purchase rights of the registered holders of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board, to protect such purchase
rights as aforesaid.
5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1 REGISTRATION OF TRANSFER. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be cancelled by the
Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request.
5.2 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
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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 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.
5.3 FRACTIONAL WARRANTS. The Warrant Agent shall not be required
to effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4 SERVICE CHARGES. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5 WARRANT EXECUTION AND COUNTERSIGNATURE. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms of
this Agreement, the Warrants required to be issued pursuant to the provisions of
this Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
6. REDEMPTION.
6.1 REDEMPTION. Subject to Section 6.4 hereof, not less than all
of the outstanding Warrants may be redeemed, at the option of the Company, at
any time after they become exercisable and prior to their expiration, at the
office of the Warrant Agent, upon the notice referred to in Section 6.2, at the
price of $.01 per Warrant ("Redemption Price"), provided that the last sales
price of the Common Stock has been equal to or greater than $8.50 per share, on
each of twenty (20) trading days within any thirty (30) trading day period
ending on the third business day prior to the date on which notice of redemption
is given. The provisions of this Section 6.1 may not be modified, amended or
deleted without the prior written consent of Jesup & Xxxxxx.
6.2 DATE FIXED FOR, AND NOTICE OF, REDEMPTION. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption. Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than 30 days prior to the date fixed
for redemption to the registered holders of the Warrants to be redeemed at their
last addresses as they shall appear on the registration books. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder received such notice.
6.3 EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the time and date fixed for redemption. On and after the
redemption date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
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6.4 OUTSTANDING WARRANTS ONLY. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption is met, including the
opportunity of the Warrant holder to exercise prior to redemption pursuant to
Section 6.3. The provisions of this Section 6.4 may not be modified, amended or
deleted without the prior written consent of Jesup & Xxxxxx.
7. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1 NO RIGHTS AS STOCKHOLDER. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter.
7.2 LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity or otherwise as they may in their discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 RESERVATION OF COMMON STOCK. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 REGISTRATION OF COMMON STOCK. The Company agrees that prior to
the commencement of the Exercise Period, it shall file with the Securities and
Exchange Commission a post-effective amendment to the Registration Statement, or
a new registration statement, for the registration, under the Act, of, and it
shall take such action as is necessary to qualify for sale, in those states in
which the Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company will use its
best efforts to cause the same to become effective on or prior to the
commencement of the Exercise Period and to maintain the effectiveness of such
registration statement until the expiration of the Public Warrants and
Underwriters' Warrants in accordance with the provisions of this Agreement. The
provisions of this Section 7.4 may not be modified, amended or deleted without
the prior written consent of Jesup & Xxxxxx.
8. CONCERNING THE WARRANT AGENT AND OTHER MATTERS.
8.1 PAYMENT OF TAXES. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the
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Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 RESIGNATION, CONSOLIDATION, OR MERGER OF WARRANT AGENT.
8.2.1 APPOINTMENT OF SUCCESSOR WARRANT AGENT. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after giving sixty
(60) days' notice in writing to the Company. If the office of the Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor Warrant Agent in place of the Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice,
submit his Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent. Any successor
Warrant Agent, whether appointed by the Company or by such court, shall be a
corporation organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of Manhattan, City
and State of New York, and authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal or state
authority. After appointment, any successor Warrant Agent shall be vested with
all the authority, powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such
successor Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor Warrant
Agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming
to such successor Warrant Agent all such authority, powers, rights, immunities,
duties, and obligations.
8.2.2 NOTICE OF SUCCESSOR WARRANT AGENT. In the event a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such appointment.
8.2.3 MERGER OR CONSOLIDATION OF WARRANT AGENT. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 FEES AND EXPENSES OF WARRANT AGENT.
8.3.1 REMUNERATION. The Company agrees to pay the Warrant
Agent reasonable remuneration for its services as such Warrant Agent hereunder
and will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.
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8.3.2 FURTHER ASSURANCES. The Company agrees to perform,
execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
8.4 LIABILITY OF WARRANT AGENT.
8.4.1 RELIANCE ON COMPANY STATEMENT. Whenever in the
performance of its duties under this Warrant Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
statement signed by the President or Chairman of the Board of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to the provisions
of this Agreement.
8.4.2 INDEMNITY. The Warrant Agent shall be liable
hereunder only for its own negligence, willful misconduct or bad faith. The
Company agrees to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3 EXCLUSIONS. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
9. MISCELLANEOUS PROVISIONS.
9.1 SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
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9.2 NOTICES. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any Warrant to or on the Company shall be sufficiently given when so delivered
if by hand or overnight delivery or if sent by certified mail or private courier
service 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:
Media & Entertainment Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Chairman of the Board and
Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service 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
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
Xxxxxxxxx Xxxxxxx, LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
Xxxxxx X. Xxxxx, Esq.
and
Xxxxxx Xxxx & Priest LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
and
Jesup & Xxxxxx Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx XxXxxxx
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,
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without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of New
York or the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience forum. Any such
process or summons to be served upon the Company may be served by transmitting a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim.
9.4 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in this
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the parties hereto and the registered holders
of the Warrants and, for the purposes of Sections 2.5, 6.1, 6.4, 7.4, 9.2 and
9.8 hereof, Jesup & Xxxxxx, any right, remedy, or claim under or by reason of
this Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. Jesup & Xxxxxx shall be deemed to be a third-party beneficiary
of this Agreement with respect to Sections 2.5, 6.1, 6.4, 7.4, 9.2 and 9.8
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto (and Jesup & Xxxxxx with respect to the Sections 2.5, 6.1,
6.4, 7.4, 9.2 and 9.8 hereof) and their successors and assigns and of the
registered holders of the Warrants.
9.5 EXAMINATION OF THE WARRANT AGREEMENT. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.7 EFFECT OF HEADINGS. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
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 each of Jesup & Xxxxxx and 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.
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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.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Attest: MEDIA & ENTERTAINMENT HOLDINGS, INC.
By:___________________________________
---------
Xxxxxxx X. Xxxxxxx, Chairman of the Board and
Chief Executive Officer
Attest: CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:____________________________________
---------
Xxxxxx X. Xxxxxx, Chairman of the Board
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