Exhibit 4.2
WARRANT DEED
This Warrant Deed (the "DEED") is made as of July 12, 2006 between
Viceroy Acquisition Corporation, a company incorporated under the laws of
Delaware, with its registered office at 1209 Orange Street, Corporation
Trust Center, Wilmington, Delaware 19801 (the "COMPANY") and Capita IRG
(Offshore) Limited, a company incorporated under the laws of Jersey, with
its registered office at Victoria Chambers, Liberation Square, 1/3 The
Esplanade, St. Helier, Jersey (the "WARRANT AGENT").
WHEREAS, pursuant to an offering circular dated on or around the
date hereof (the "OFFERING CIRCULAR") the Company is engaged in an offering
of units ("UNITS") each comprised of one share of common stock, par value
$0.0001 per share, in the share capital of the Company (the "COMMON SHARES")
and one warrant (the "WARRANTS"), each Warrant evidencing the right of the
holder thereof to purchase one Common Share for US$6.00, on the terms and
subject to the conditions set forth in the Offering Circular and subject to
adjustment as described herein; and
WHEREAS the Company desires, for the benefit of the holders from
time to time of the Warrants, 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 Deed.
NOW, THEREFORE, the Company and the Warrant Agent have executed as
a Deed the following:
1. Appointment of Warrant Agent. The Company hereby appoints
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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 Deed.
2. Warrants.
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2.1 Form of Warrant. Each Warrant shall be issued
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in registered form only, shall be in substantially the form
of Exhibit A hereto, the provisions of which are
incorporated herein and shall be signed by, or bear the
facsimile signature of, the chief executive officer of the
Company, the secretary of the Company or any executive
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officer 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 Registration.
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2.2.1 Warrant Register. The Warrant Agent shall
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maintain books (the "WARRANT REGISTER"), for the
registration of original issuance and 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.
2.2.2 Registered Holder. Prior to due presentment
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for registration of the 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 (the "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.
2.3 Trading of Securities. The Common Shares and
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the Warrants comprising the Units will be separately
tradable from the date on which the Common Shares and
Warrants are admitted to trading on the Alternative
Investment Market, a market operated by the London Stock
Exchange plc (the date on which trading commences being the
"ADMISSION DATE").
3. Terms and Exercise of Warrants.
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3.1 Warrant Price. Each Warrant shall, when accompanied
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by the duly completed exercise notice available from the
Warrant Agent, (the "EXERCISE NOTICE"), entitle the
registered holder thereof, subject to the provisions of this
Deed, to purchase from the Company the number of Common
Shares stated therein, at the price of $6.00 per 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 Deed refers to the price per share at
which Common Shares may be purchased at the time a Warrant
is exercised. The Company in its sole discretion may reduce
(but not increase) the Warrant Price at any time prior to
the Expiration Date (as defined in Section 3.2.2).
3.2 Duration of Warrants. A Warrant may only be
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exercised during the period (the "EXERCISE PERIOD"):
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3.2.1 commencing on the earlier of (i) the
consummation by the Company of a business combination which
either by itself or, when combined with all of the Company's
previous business combinations, has an aggregate transaction
value of at least 50% of the initial amount held in a trust
established by the Company pursuant to an agreement with
Continental Stock Transfer and Trust Company immediately
following the end of the Stabilization Period (as defined in
the Offering Circular) (a "QUALIFIED BUSINESS COMBINATION"),
and (ii) if one or more business combinations have occurred
but a Qualified Business Combination has not occurred, the
date that is 12 months from the Admission Date (unless the
deadline for consummating a Qualified Business Combination
has been extended (the date by which such Qualified Business
Combination has to occur following such extension being the
"EXTENDED DATE"), in which case the relevant date shall be
the Extended Date); and
3.2.2 terminating at 5:00 p.m., New York City time
on the earlier to occur of (i) the fourth anniversary of the
Admission Date and (ii) the date fixed for redemption of the
Warrants as provided in Section 6 of this Deed ("EXPIRATION
DATE").
Except with respect to the right to receive the
Redemption Price (as defined 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 Deed shall automatically cease at
the close of business on the Expiration Date. The Company in
its sole discretion may extend (but not shorten) the
Exercise Period.
3.3 Exercise of Warrants.
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3.3.1 Payment. Subject to the provisions of the
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Warrant and this Deed, a Warrant 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, with the Exercise Notice, which shall be
available from the Warrant Agent, duly executed, and by
paying in full, in lawful money of the United States, in
cash, banker's cheque or good bank draft payable to the
order of the Company (or as otherwise agreed to by the
Company), the Warrant Price for each full share of Common
Shares 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 Shares
and the issuance of the Common Shares. The offices of the
Warrant Agent are located as specified in Section 10.2 of
this Deed.
3.3.2 Issuance of Certificates. As soon as
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practicable, but in any event within three business days,
after the exercise of any Warrant and the clearance of the
funds in payment of the aggregate 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 Shares to which he is entitled, registered in such
name or names as may be directed by him, her or it, and if
such Warrant shall not have been exercised in full, a
Warrant for the number of Common Shares as to which such
Warrant shall not
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have been exercised. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities
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pursuant to the exercise of a Warrant unless the Company
shall have received (i) a written certification from the
holder that it is neither within the United States nor a
U.S. person (as such term is defined in Regulation S of the
Securities Act of 1933, as amended (the "ACT")) and the
Warrant is not being exercised on behalf of a U.S. person or
(ii) in the case of a holder who cannot make the
representation in (i), a written opinion of counsel in a
form reasonably satisfactory to the Company to the effect
that the Warrants and the securities to be delivered upon
exercise thereof have been registered under the Act or are
exempt from registration thereunder 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 Common Shares issued
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upon the proper exercise of a Warrant in conformity with this
Deed shall be validly issued, fully paid and nonassessable.
3.3.4 Date of Issuance. Each person in whose name
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any such certificate evidencing Common Shares is issued
shall for all purposes be deemed to have become the holder
of record of such Common Shares on the date on which such
person's name is entered into the register of members
following the surrender of its Warrants(s) for exercise and
payment of any Warrant Price having been made, irrespective
of the date of delivery of such certificate, except that, if
the date of such surrender and any payment is a date when
the share transfer books of the Company are closed, such
person shall be deemed to have become the holder of such
Common Shares at the close of business on the next
succeeding date on which the share transfer books are open.
4. Adjustments.
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4.1 Share Dividends - Subdivisions. If after the date
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hereof, and subject to the provisions of Section 4.6
below, the number of outstanding Common Shares is increased
by a share dividend payable in Common Shares, or by a
subdivision of Common Shares, or other similar event, then,
on the effective date of such share dividend, subdivision or
similar event, the number of Common Shares issuable on
exercise of each Warrant shall be increased in proportion to
such increase in outstanding Common Shares.
4.2 Aggregation of Common Shares. If after the date
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hereof, and subject to the provisions of Section 4.6, the
number of issued Common Shares is decreased by a
consolidation, combination, reverse share split or
reclassification of Common Shares or other similar event,
then, on the effective date of such consolidation,
combination, reverse share split, reclassification or
similar event, the number of Common Shares issuable on
exercise of each Warrant shall be decreased in proportion to
such decrease in issued Common Shares.
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4.3 Adjustments in Exercise Price. Whenever the
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number of Common Shares purchasable upon the exercise of the
Warrants is adjusted, as provided in Sections 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 the number of Common Shares purchasable upon the
exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the
number of Common Shares so purchasable immediately
thereafter.
4.4 Replacement of Securities upon Reorganization,
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etc. In case of any reclassification or reorganisation of
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the issued Common Shares (other than a change covered by
Sections 4.1 or 4.2 hereof or that solely affects the par
value of such Common Shares), or in the case of any merger,
amalgamation or consolidation of the Company with or into
another corporation (other than a consolidation or merger
(which shall not include amalgamation under U.S. law) in
which the Company is the continuing corporation and that
does not result in any reclassification or reorganisation of
the outstanding Common Shares), or in the case of any sale
or conveyance to another corporation or entity of the assets
or other property of the Company as an entirety or
substantially as an entirety in connection with which the
Company is dissolved, the 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 Common Shares immediately theretofore
purchasable and receivable upon the exercise of the rights
represented thereby, the kind and amount of shares or other
securities or property (including cash) receivable upon such
reclassification, reorganisation, merger, amalgamation 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 Warrant(s) immediately
prior to such event; and if any reclassification also
results in a change in Common Shares covered by Sections 4.1
or 4.2, then such adjustment shall be made pursuant to
Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions
of this Section 4.4 shall similarly apply to successive
reclassifications, reorganisations, mergers, amalgamations
or consolidations, sales or other transfers.
4.5 Notices of Changes in Warrant. Upon every
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adjustment of the Warrant Price or the number of Common
Shares issuable upon exercise of a Warrant, the Company
shall give written notice thereof to the Warrant Agent,
which notice shall state the Warrant Price resulting from
such adjustment and the increase or decrease, if any, in the
number of Common 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.
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4.6 No Fractional Common Shares. Notwithstanding
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any provision contained in this Deed to the contrary, the
Company shall not issue fractional Common 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 Common Share, the Company shall,
upon such exercise, round down to the nearest whole number
the number of Common Shares to be issued to the Warrant
holder.
4.7 Form of Warrant. The form of Warrant need not
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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 Common
Shares as is stated in the Warrants initially issued
pursuant to this Deed. However, the Company may at any time
in its sole discretion make any change in the form of
Warrant that the Company may reasonably deem appropriate and
that does not affect the substance thereof, and any Warrant
thereafter issued, whether in exchange or substitution for
an outstanding Warrant or otherwise, may be in the form as
so changed.
5. Transfer and Exchange of Warrants.
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5.1 Registration of Transfer. The Warrant Agent
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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.
5.2 Procedure for Surrender of Warrants. Subject to
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compliance with Section 3.3.2, the Warrants may be
surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant
Agent shall, subject to the Company's satisfaction that, in
its sole reasonable discretion, the transfer procedures for
purchasers and sellers have been followed, 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
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surrendered for transfer bears a restrictive legend, the
Warrant Agent shall not cancel such Warrant and issue new
Warrants in exchange therefor unless the transfer is
pursuant to an effective registration statement under the
Act or pursuant to an exemption from registration under the
Act provided by Rule 144, Rule 144A or Regulation S under
the Act (subject to such transferee making such
representations in favor of the Company as the Company may
deem advisable to ensure that such transfer is conducted
pursuant to such an exemption from, or in a transaction not
subject to, registration under the Act and in accordance
with any applicable laws of any state in the U.S. and any
other jurisdiction and, inter alia, agreement by the
transferee to take such securities subject to customary
transfer restrictions and appropriate legends), and in each
case in accordance with applicable securities laws of each
state of the U.S. and any other jurisdiction. The Company
may
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request an opinion of counsel reasonably satisfactory to the
Company that such transfer is to be effected in a
transaction meeting the requirements of Regulation S under
the Act or is exempt from registration.
5.3 Fractional Warrants. The Warrant Agent shall
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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
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made for any exchange or registration of transfer of
Warrants.
5.5 Warrant Execution. The Warrant Agent is hereby
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authorised to deliver, in accordance with the terms of this
Deed, 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.
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6.1 Redemption. All but not less than all of the
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Warrants may be redeemed at the option of the Company, at
any time during the Exercise Period, at the office of the
Warrant Agent, upon the notice referred to in Section 6.2,
at the price of $0.01 per Warrant ("REDEMPTION PRICE"),
provided that the last independent bid price of the Common
Shares equals or exceeds $11.50 per share, on each of any
twenty (20) trading days within a thirty (30) trading day
period ending three business days prior to the date on which
notice of redemption is given and the weekly trading volume
for the Common Shares has been at least 200,000 shares for
each of the two calendar weeks before the notice of
redemption is given.
6.2 Date Fixed for, and Notice of, Redemption. In
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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 thirty (30)
days prior to the date fixed for redemption to the Warrant
Register 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
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Warrants may be exercised in accordance with Section 3 of
this Deed 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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7. Warrant Solicitation and Warrant Solicitation Fee
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7.1 The Company has engaged CRT Capital Group, LLC
("CRT"), on a non-exclusive basis, as its agent for the
solicitation of the exercise of the Warrants beginning one
year following the Admission Date. The Company will (i)
assist CRT with respect to such solicitation, as reasonably
requested by CRT, and (ii) at CRT's request, provide CRT,
and direct the Company's transfer agent and the Warrant
Agent to deliver to CRT, at the Company's cost, lists of the
registered holders and, to the extent known, beneficial
owners of the Warrants. The Company hereby instructs the
Warrant Agent to cooperate with CRT in every respect in
connection with CRT's solicitation activities, including,
but not limited to, providing to CRT, at the Company's cost,
a list of record and beneficial holders of the Warrants. In
addition to the conditions set forth in Section 7.2, CRT
shall receive payment of the warrant solicitation fee
provided in Section 7.4 only where it has provided services
to the Company in connection with the exercise of the
Warrants and only to the extent CRT has solicited the
exercise of the Warrants. In addition to soliciting the
exercise of Warrants by a Warrant holder such services may
(subject to compliance with applicable laws) also include
disseminating information, orally or in writing, to Warrant
holders about the Company or the market for the Company's
securities, or assisting in the processing of the exercise
of Warrants.
7.2 In each instance in which a Warrant is
exercised following the Company's publication of an
announcement of redemption pursuant to Section 6 above, the
Warrant Agent shall promptly give written notice of such
exercise to the Company and CRT ("WARRANT AGENT'S EXERCISE
NOTICE"). Notwithstanding the foregoing and subject to
clause 7.3 below, a fee shall be paid only if, (i) the
Company has requested CRT to solicit the exercise of the
Warrants, (ii) the Warrant was not held in a discretionary
account except where prior written approval for exercise of
the Warrants in such account is received from the customer,
(iii) the solicitation of the exercise of the Warrant was
not in violation of Regulation M, to the extent applicable
at the time of any solicitation, (as such rules or any
successor rule may be in effect as such time of exercise)
promulgated under the Securities Exchange Act of 1934, as
amended or any provision of the Financial Services and
Markets Act 2000 or any other applicable law or regulation
then applicable to the Warrants, their exercise or the
solicitation of such exercise, (iv) CRT (or its sub-agent)
has solicited the exercise of the Warrants, (v) the Warrant
Solicitation Fee and related arrangements are disclosed to
the Warrant holders at that time of exercise of the Warrants
in a prospectus, solicitation notice or any other written
solicitation materials provided to the Warrant holders in
connection with the exercise of the Warrants, (vi) the
Warrant holder has confirmed in writing that CRT or one of
its sub-agents has solicited the exercise of the Warrants
being exercised, (vii) a notice of the redemption of the
Warrants has been published by the Company, and (viii) the
exercise price of the Warrant is paid by the Warrant holder
in cash to the Company.
7.3 In addition, no Warrant Solicitation Fee will
be paid upon the exercise of such Warrants if the market
price of the underlying Common Shares is
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lower than 102% of the exercise price at the time of such
exercise. Notwithstanding the foregoing, no Warrant
Solicitation Fee will be paid to CRT with respect to the
exercise of any Warrants by CRT or KBC Peel Hunt Ltd or any
of their respective affiliates, directors or officers or the
Founding Shareholders or their designees or the directors or
officers of the Company, including any Warrants owned by
Paul Anthony Novelly or his designee and purchased in the
Placing or acquired after Admission.
7.4 The Company shall, simultaneously with the
distribution by the Warrant Agent of the Common Shares
underlying the Warrants so exercised following receipt of
the proceeds to the Company received upon exercise of such
Warrant(s) pay to CRT a warrant solicitation fee of two
percent of the exercise price for each Warrant exercised
(the "WARRANT SOLICITATION FEE"); provided, however, that no
Warrant Solicitation Fee shall be payable with respect to
such Warrants exercised on or subsequent to the date of any
public announcement of a sale of substantially all the
assets or more than 50 percent of the outstanding issued
share capital of the Company through the date such sale is
consummated unless such sale is not consummated in a
reasonable time for transactions of the type, in which case
the entitlement to the Warrant Solicitation Fee shall be
reinstated; and provided further that CRT delivers to the
Warrant Agent within ten (10) business days from the date on
which CRT has received the Warrant Agent's Exercise Notice,
a certificate that the conditions set forth in the preceding
clause 7.2 (i) through (viii) inclusive, have been
satisfied. CRT and the Company may at any time during
business hours, examine the records of the Warrant Agent,
including its ledger of original Warrant certificates
returned to the Warrant Agent upon exercise of Warrants.
7.5 The provisions of this Section 7 may not be
modified, amended or deleted without the prior written
consent of CRT.
8. Other Provisions Relating to Rights of Holders of Warrants.
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8.1 No Rights as Shareholder. A Warrant does not
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entitle the registered holder thereof to any of the rights
of a shareholder of the Company, including, without
limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to
consent or to receive notice as shareholders in respect of
the meetings of shareholders or the election of directors of
the Company or any other matter.
8.2 Lost, Stolen, Mutilated, or Destroyed Warrants.
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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 located
or enforceable by anyone.
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8.3 Reservation of Common Shares. The Company shall
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at all times reserve and keep available a number of its
authorized but unissued Common Shares that will be
sufficient to permit the exercise in full of all Warrants
issued pursuant to this Deed.
8.4 Listing of Common Shares. Upon exercise of the
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Warrants the Company will use its reasonable endeavors to
ensure that Common Shares issued pursuant to such exercise
are admitted to trading on such exchange as the Company's
Common Shares and/or Warrants are trading at that time.
9. Concerning the Warrant Agent and Other Matters.
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9.1 Payment of Taxes. The Company will from time to
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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 Common Shares upon the exercise of
Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such Common
Shares.
9.2 Resignation, Consolidation, or Merger of Warrant
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Agent.
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9.2.1 Appointment of Successor Warrant Agent. The
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Warrant Agent, or any successor to it hereafter appointed,
may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60)
days' prior written notice to the Company. If the office of
the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant
Agent which successor Warrant Agent shall be approved by
each of CRT and KBC (such approval not to be unreasonably
withheld or delayed or conditioned). If the Company shall
fail to make such appointment within a period of thirty (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,
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submit his Warrant for inspection by the Company), then the
holder of any Warrant may apply to the High Court of Justice
in England 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 in good
standing authorized to exercise the functions of the Warrant
Agent pursuant to this Deed and shall be subject to
supervision or examination by appropriate regulatory
authorities. 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
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effectually vesting in and confirming to such successor
Warrant Agent all such authority, powers, rights,
immunities, duties, and obligations.
9.2.2 Notice of Successor Warrant Agent. In the
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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 Shares not later
than the effective date of any such appointment.
9.2.3 Merger or Consolidation of Warrant Agent.
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Any corporation into which the Warrant Agent may be merged
or with which it may be consolidated or any corporation
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resulting from any merger or consolidation to which the
Warrant Agent shall be a party shall be the successor
Warrant Agent under this Deed without any further act.
9.3 Fees and Expenses of Warrant Agent.
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9.3.1 Remuneration. The Company agrees to pay the
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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 (as more particularly set out in the Off-Shore
Register Agreement between the Company and the Warrant
Agent).
9.3.2 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 Deed.
9.4 Liability of Warrant Agent.
--------------------------
9.4.1 Reliance on Company Statement. Whenever in
-----------------------------
the performance of its duties under this Warrant Deed, 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
or deputy chief-executive officer or other executive officer
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 Deed.
9.4.2 Indemnity. The Warrant Agent shall be liable
---------
hereunder only for its own negligence, fraud, willful
misconduct or bad faith provided that the aggregate
liability of the Warrant Agent will be limited to the lesser
of (pounds)1,000,000 (one million pounds) or an amount equal
to ten (10) times the total annual fee payable to the
Warrant Agent under the Registrar Agreement. The Company
agrees to indemnify the
-11-
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 Deed except as a result of
the Warrant Agent's negligence, fraud, willful misconduct or
bad faith.
9.4.3 Exclusions. The Warrant Agent shall have no
----------
responsibility with respect to the validity of this Deed or
with respect to the validity or execution of any Warrant;
nor shall it be responsible for any breach by the Company of
any covenant or condition contained in this Deed 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
Common Shares to be issued pursuant to this Deed or any
Warrant or as to whether any Common Shares will when issued
be valid and fully paid and nonassessable.
9.5 Waiver of Claims. The Warrant Agent hereby
----------------
agrees that it does not have any right, title, interest or
claim of any kind in or to any monies held in the trust
established by the Company with Continental Stock Transfer
and Trust Company, as trustee, pursuant to a trust agreement
to be signed on or prior to the Admission Date (the "CLAIM")
and hereby waives any Claim it may have in the future as a
result of, or arising out of, this Deed and will not seek
recourse against such trust for any reason whatsoever.
9.6 Acceptance of Appointment. The Warrant Agent
-------------------------
hereby accepts the appointment as Warrant Agent as described
in this Deed and agrees to perform the same upon the terms
and conditions herein set forth and among other things,
shall account promptly to the Company with respect to
Warrants exercised and concurrently account for, and pay to
the Company, all moneys received by the Warrant Agent for
the purchase of the Common Shares through the exercise of
Warrants.
10. Miscellaneous Provisions.
------------------------
10.1 Successors. All the covenants and provisions
----------
of this Deed 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.
10.2 Notices. Any notice, statement or demand
-------
authorised by this Deed to be given or made by the Warrant
Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or
overnight delivery or if sent by certified mail or private
courier service within five days after deposit of such
notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
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Viceroy Acquisition Corporation
8235 Forsyth Boulevard
4th Floor
Clayton, Missouri
63105
USA
Attn: Chairman
Any notice, statement or demand authorised by this Deed to
be given or made by the holder of any Warrant or by the
Company to or on the Warrant Agent shall be sufficiently
given when so delivered if by hand or overnight delivery or
if sent by certified mail or private courier service within
five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the
Warrant Agent with the Company), as follows:
Capita IRG (Offshore) Limited
Victoria Chambers
Liberation Square
1/3 The Esplanade
St. Helier
Jersey
Attn: Compliance Department
10.3 Applicable law. This Deed shall be governed
--------------
by, interpreted under, and construed in accordance with the
laws of the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the
application of the substantive laws of any other
jurisdiction. Each party hereby irrecovably and
unconditionally waives the right to a trial by jury in any
action, suit, counterclaim or other proceeding (whether
based on contract, tort or otherwise) arising out of,
connected with or relating to this Deed or the negotiation,
administration, performance or enforcement hereof.
10.4 Persons Having Rights under this Deed. Nothing
-------------------------------------
in this Deed 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 7
and 10.2 hereof, CRT, any right, remedy, or claim under or
by reason of this Deed or of any covenant, condition,
stipulation, promise, or agreement hereof. CRT shall be
deemed to be a third-party beneficiary of this Deed with
respect to Sections 7 and 10.2 hereof. All covenants,
conditions, stipulations, promises, and agreements contained
in this Deed shall be for the sole and exclusive benefit of
the parties hereto (and CRT with respect to the Sections 7
and 10.2 hereof) and their successors and assigns and of the
registered holders of the Warrants.
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10.5 Examination of the Deed. A copy of this Deed
-----------------------
shall be available at all reasonable times at the office of
the Warrant Agent, 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.
10.6 Counterparts. This Deed 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.
10.7 Effect of Headings. The Section headings
------------------
herein are for convenience only and are not part of this
Deed and shall not affect the interpretation thereof.
-14-
IN WITNESS WHEREOF, this Deed has been duly executed by the parties
hereto as of the day and year first above written.
EXECUTED AS A DEED (BUT NOT DELIVERED UNTIL DATED)
BY VICEROY ACQUISISTION CORPORATION
By: /s/ Lee E. Mikles
-----------------------------------
Name: Lee E. Mikles
Title: Chief Executive Officer
By: /s/ Douglas D. Hommert
-----------------------------------
Name: Douglas D. Hommert
Title: Executive Vice President
EXECUTED AS A DEED (BUT NOT DELIVERED UNTIL DATED)
BY CAPITA IRG (OFFSHORE) LIMITED
By: /s/ Anthony O'Keeffe
-----------------------------------
Name: Anthony O'Keeffe
Title: Director
By: /s/
-----------------------------------
Name:
Title: Director
-15-
EXHIBIT A
VICEROY - WARRANTS CERTIFICATE FACE
VICEROY ACQUISITION CORPORATION
(Incorporated under the laws of the State of Delaware pursuant to
Delaware General Corporation Law)
WARRANTS
ISIN: USU 92229 1187
CUSIP: U92229 118
SEDOL: B150QQ67
This is to certify that:
Is/are the registered holder(s) of
Warrants to subscribe for fully paid Common Shares, having a par value of
US$0.0001 fully paid in VICEROY ACQUISITION CORPORATION subject to the
Certificate of Incorporation and the Bylaws of the Company and the Deed. The
exercise price of the Warrants is $6.00, subject to adjustment as described
in the Deed, and the Warrants expire on [date]. The Warrant Agreement can be
viewed at Victoria Chambers, Liberation Square, 1/3 The Esplanade,
St. Helier, Jersey.
PRIOR TO INVESTING IN THE SECURITIES OR CONDUCTING ANY TRANSACTIONS IN THE
SECURITIES, INVESTORS ARE ADVISED TO CONSULT PROFESSIONAL ADVISERS REGARDING
THE RESTRICTIONS ON TRANSFER SUMMARIZED BELOW AND ANY OTHER RESTRICTIONS.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION
A-1
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE OF THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER
RESTRICTIONS WHICH REQUIRE THAT IN ADDITION TO ANY CERTIFICATIONS REQUIRED
FROM A TRANSFEROR AS SET FORTH ON THE REVERSE OF THIS CERTIFICATE, PRIOR TO
THE EXPIRATION OF A ONE-YEAR DISTRIBUTION COMPLIANCE PERIOD, THE TRASFEREE
CERTIFIES AS TO WHETHER OF NOT IT IS A U.S. PERSON WITHIN THE MEANING OF
REGULATION S AND PROVIDES CERTAIN OTHER CERTIFICATIONS AND AGREEMENTS. PRIOR
TO PERMITTING ANY TRANSFER, THE COMPANY MAY REQUEST AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS TO BE EFFECTED
INA TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT OR IS EXEMPT FROM REGISTRATION.
Director _______________ Director _______________
No transfer of the warrants (or any portion thereof) comprised in this
certificate can be registered until this certificate has been lodged with the
Company's Registrars: Capita IRG (Offshore) Limited, Victoria Chambers,
Liberation Square, 1/3 The Esplanade, St Helier, Jersey JE4 0FF
UK Transfer Agent: Capita Registrars, The Registry, 34 Beckenham Road,
Beckenham, Kent. BR3 4TU
A-2
WARRANT CERTIFICATE
REVERSE BOX
- -----------------------------------------------------------------------------
The common shares underlying this Warrant Certificate shall be held (pending
exercise of this Warrant Certificate) subject to all of the provisions of the
Certificate of Incorporation and the Bylaws of the Company and any amendments
thereto, a copy of each of which is on file at the registered office of the
Company's Registrar and made a part hereof as fully as though the provisions
of said Certificate of Incorporation and Bylaws were imprinted in full on this
Warrant Certificate, to all of which the holder of this Warrant Certificate,
by acceptance hereof, assents and agrees to be bound. The Company will furnish
without charge to each holder of warrants (a "Holder") who so requests a copy
of the Certificate of Incorporation and the Bylaws of the Company.
In connection with any transfer of this Warrant Certificate to be consummated
prior to such time as the Company shall have otherwise notified all Holders
writing, the undersigned holder of warrants certifies that (check one):
BOX (a) This Warrant Certificate is being transferred to the Company.
BOX (b) This Warrant Certificate is being transferred pursuant to an
effective registration statement under the Securities Act and in
accordance with any applicable laws of the United States and any state of
the United States.
BOX (c) (i) This Warrant Certificate is being transferred in an offshore
transaction not subject to the registration requirements of the
Securities Act, by virtue of Regulation S thereunder; (ii) the offer of
the warrants was not made to a person in the United States; (iii) (A) at
the time the buy order was originated, the transferee was outside the
United States or the Holder and any person acting on its behalf
reasonably believed that the transferee was outside the United States or
(B) the transaction is executed in, or through the facilities of the AIM
Market operated by the London Stock Exchange plc, and neither the Holder
nor any person acting on its behalf knows that the transaction has been
BOX (e) This Warrant Certificate is being transferred to a person whom the
Holder reasonably believes is a qualified institutional buyer (as defined
in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A and is in accordance with applicable US state
securities laws.
The Company may determine to extend or shorten the certification periods set
forth above, or to modify the form of the certificates, or to require
additional certifications and/or related documentation to evidence an
exemption from registration, in each case in accordance with applicable law.
The exercise of this Warrant Certificate must be in accordance with the
procedures implemented by the Company to ensure that the warrants are not
exercised in the U.S., and that the common shares underlying the warrants are
not delivered within the United States upon exercise, other than in offerings
in accordance with Regulation S, or unless registered under the Securities
Act, or exempt from such registration. These procedures include delivery of an
exercise notice. If you do not have a form of exercise notice, please contact
the Transfer Agent.
The Transfer Agent shall not be obligated to register this Warrant Certificate
in the name of any person other than the Holder thereof unless and until the
conditions to any such transfer of registration set forth herein and on the
face hereof shall have been satisfied.
Assignment and transfer of this Warrant Certificate shall not be effected by
an endorsement on this certificate, but by execution and delivery of a
separate stock transfer form, which may be obtained from the Company's
Transfer Agent.
Unless otherwise specified, terms used in this Warrant Certificate have the
meanings set forth in Regulation S. Transferee and the Company are
- -------------------------------------------------------------------------------
A-3
- -------------------------------------------------------------------------------
pre-arranged with a buyer in the United States; (iv) the transferee is
not a U.S. person (as defined in Regulation S) and is not purchasing for
the account or benefit of a U.S. person; (v) no directed selling efforts
have been made in contravention of the requirements of Regulation S; (vi)
the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; (vii) if applicable, in the case of a
transfer by a Holder who is a dealer or a person receiving a selling
concession, fee or other remuneration in connection with such transfer,
such Holder has complied with the additional conditions set forth in Rule
904(b) of Regulation S, and (viii) the Holder has complied with all
applicable additional requirements imposed by Rule 903 of Regulation S;
BOX (d) This Warrant Certificate is being transferred pursuant to an
exemption from registration under the Securities Act in compliance with
Rule 144, if applicable, under the Securities Act and is in accordance
with applicable US state securities laws and in relation to which the
Holder has furnished to the Company an opinion to such effect from
counsel of recognized standing in form and substance satisfactory to the
Company prior to such offer, sale, pledge or transfer. entitled to rely
upon this certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
- -------------------------------------------------------------------------------
A-4