Exhibit 4.4
WARRANT AGREEMENT
Agreement made as of
, 2005 between Oakmont Acquisition Corp., a Delaware corporation,
with offices at 33 Bloomfield Hills Parkway, Suite 240, Bloomfield
Hills, MI 48304 (“ Company ”), and
Continental Stock Transfer & Trust Company, a New York
corporation, with offices at 17 Battery Place, New York, New York
10004 (“ 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 (i) up to 18,400,000
Warrants (“ Public Warrants ”) to the
public investors, and (ii) 1,600,000 Warrants to Morgan Joseph
& Co. Inc. (“ Morgan Joseph ”) or its
designees (“ Representative’s Warrants
” and, together with the Public Warrants, the “
Warrants ”), each Warrant 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 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
Warrant shall be issued in registered form only, shall be in
substantially the form of Exhibit A hereto, the provisions of which
are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board, Chief Executive
Officer or President, and Chief Financial Officer, 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 90 days after the date hereof unless Morgan
Joseph informs the Company of its decision to allow earlier
separate trading, but in no event will Morgan Joseph 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.
2.5 Warrants and
Representative’s Warrants . The Representative’s
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
Warrant shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such
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. 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, however, that the any
change in the Warrant Price must apply equally to 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 local 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,
however, that any extension of the duration of the Warrants must
apply equally to 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 (or as otherwise agreed to by 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.
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, her or it, and if such Warrant
shall not have been exercised in full, a new countersigned Warrant
for the number of shares as to which such Warrant shall not have
been exercised. Notwithstanding the foregoing, the Company shall
not be obligated to deliver any securities pursuant to the exercise
of a Warrant unless a registration statement under the Act with
respect to the Common Stock is effective. 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.
3.3.5 Intentionally Omitted
.
4. Adjustments .
4.1 Stock Dividends -
Split-Ups . If after the date hereof, and subject to the
provisions of Section 4.6 below, the number of outstanding shares
of Common Stock is increased by a stock dividend payable in shares
of Common Stock, or by a split-up of shares of Common Stock, or
other similar event, then, on the effective date of such stock
dividend, split-up or similar event, the number of shares of Common
Stock issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares of Common
Stock.
4.2 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 of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding
shares of Common Stock.
4.3 Adjustments in 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 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, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a
change in shares of Common Stock covered by Section 4.1 or 4.2,
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
