WARRANT AGREEMENT
Exhibit
4.5
This
WARRANT
AGREEMENT
(the
“Agreement”),
entered into as of the __th day of _____, 2008, by and between Chardan 2008
China Acquisition Corp., a British Virgin Islands business company of limited
liability (the “Company”),
with
offices x/x Xxxxxxx Xxxxxxx, XXX, xx Xxxxx 00X, Xxxxx X, Oriental Kenzo Plaza,
00 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, 000000, Xxxxx, and Continental Stock Transfer
& Trust Company, a New York corporation (the “Warrant
Agent”),
with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS,
the
Company is engaged in a public offering (the “Public
Offering”)
of
6,875,000 units (“Units”)
of the
Company, each Unit consisting of one ordinary share, par value $0.0001 per
share
(an “Ordinary
Share”)
and
one warrant to purchase one Ordinary Share (the “Public
Warrants”);
WHEREAS,
in
connection with the Company’s formation, the Company has issued 2,291,666
Ordinary Shares and 2,291,666 warrants to certain initial shareholders (the
“Existing
Shareholders’ Warrants”);
WHEREAS,
the
Company has heretofore engaged in a private offering (the “Private
Offering”)
of
2,000,000 warrants (the “Private
Placement Warrants”)
of the
Company to certain investors named in the Registration Statement (as hereinafter
defined);
WHEREAS,
in
connection with the Public Offering, the Company has determined to sell and
deliver to Xxxxx Xxxxxx, Carret & Co., LLC, Maxim Group LLC and Xxxx Capital
Partners, LLC, acting as representatives of the underwriters (the “Underwriters”),
an
option to purchase 137,500 Units of the Company, which Units include 137,500
Ordinary Shares and 137,500 warrants (the “Representatives’
Warrants”);
WHEREAS,
the
Company has filed with the Securities and Exchange Commission (the “SEC”)
a
Registration Statement, No. 333-152623 on
Form
F-1, as amended (the “Registration
Statement”),
for
the registration, under the Securities Act of 1933, as amended (the
“Act”),
of,
among other securities, the Public Warrants and the Ordinary Shares issuable
upon exercise of the Public Warrants and the Representatives’ Warrants and the
Ordinary Shares issuable upon exercise of the Representatives’
Warrants;
WHEREAS,
the
Company desires to provide for the form and provisions of the warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Public Warrants, Existing Shareholders’ Warrants, Private
Placement Warrants and Representatives’ Warrants (each, a “Warrant”,
and,
collectively, 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;
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 of directors and Chief
Executive Officer and/or Chief Financial Officer, Chief Operating Officer,
Treasurer 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.
1
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 Public Warrants.
The
Public Warrants and Ordinary Shares comprising the Units will begin separate
trading on the 10th day after the date of the final prospectus, but in no event
will separate trading of the Public Warrants and Ordinary Shares comprising
the
Units begin until the Company files with the SEC a Report on Form 6-K which
includes an audited balance sheet reflecting the receipt by the Company of
the
gross proceeds of the sale of the Private Placement Warrants and the Public
Offering.
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 Agreement,
to purchase from the Company the number of Ordinary Shares, at the price of
$5.00 per Ordinary 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 Agreement refers to the price per share at which Ordinary Shares 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 for a
period of not less than ten (10) business days; provided any such reduction
shall be identical 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: (i) the consummation by the Company of a merger,
share exchange, asset or share acquisition, exchangeable share transaction,
contractual control arrangement or other similar business combination
(“Business
Combination”)
(as
described more fully in the Company’s Registration Statement), or (ii) ______
__, 2009, and terminating at 5:00 p.m., New York City time on the earlier to
occur of (a) ______ __, 2012 or (b) 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 expire and cease to carry any rights, 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,
the
Company will provide notice to registered holders of the Warrants of such
extension of not less than 20 days and; provided,
further,
that
any such extension shall be identical in duration among all of the
Warrants.
2
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrant and this Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by 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 Ordinary
Share 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 Ordinary Share, and the issuance of the Ordinary Share.
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
Ordinary 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 new countersigned Warrant for the number of shares as to which such
Warrant shall not have been exercised. Subject to Section 7.4 and
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 Ordinary Shares issuable upon
exercise of such Warrant 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
or
issuance would be unlawful. In the event a registration statement under the
Act
with respect to the Ordinary Shares underlying the Warrants is not effective
or
a prospectus is not available, or because such exercise would be unlawful with
respect to a registered holder in any state, the registered holder shall not
be
entitled to exercise such Warrants and such Warrants may have no value and
expire worthless. In no event will the Company be obligated to pay such
registered holder any cash consideration upon exercise (unless pursuant to
Section 4.5) or otherwise “net cash settle” the Warrant. In the event that a
Registration Statement is not effective for the exercised Warrants, the
purchaser of a Unit containing such Warrants, will have paid the full purchase
price for the Unit solely for the Ordinary Shares included in such
Unit.
3.3.3 Valid
Issuance.
All
Ordinary Shares 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 Ordinary Shares 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 Exercise
of Private Placement Warrant.
Notwithstanding anything contained herein to the contrary, the Private Placement
Warrants may, at any time after the later to occur of (i) a Business
Combination, or (ii) one year after the effective date of the Registration
Statement, provided that at the time of exercise they are held by the original
purchaser thereof or its permitted assigns, be exercised by surrendering such
Private Placement Warrants for that number of Ordinary Shares equal to the
quotient obtained by dividing (i) the product of the number of shares of
Ordinary Shares underlying the Warrant, multiplied by the difference between
the
Warrant Price and the FMV (as hereinafter defined) by (ii) the FMV. The
“FMV”
shall
mean the average reported last sale price of the Ordinary Shares for the 10
trading days ending on the third business day prior to the date on which notice
of exercise is received by the Company.
4. ADJUSTMENTS.
4.1 Share
Dividends - Sub-Division.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding Ordinary Shares is increased by a share dividend payable
in Ordinary Shares, or by a sub-division of Ordinary Shares, or other similar
event, then, on the effective date of such share dividend, sub-division or
similar event, the number of Ordinary Shares issuable on exercise of each
Warrant shall be increased in proportion to such increase in outstanding
Ordinary Shares.
3
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding Ordinary Shares is decreased by a consolidation, combination
or
reclassification of Ordinary Shares or other similar event, then, on the
effective date of such consolidation, combination, reclassification or similar
event, the number of Ordinary Shares issuable on exercise of each Warrant shall
be decreased in proportion to such decrease in outstanding Ordinary
Shares.
4.3 Adjustments
in Exercise Price.
Whenever the number of Ordinary Shares 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 (i) the numerator of which
shall be the number of Ordinary Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (ii) the denominator of
which
shall be the number of Ordinary Shares so purchasable immediately
thereafter.
4.4 Extraordinary
Dividends.
If the
Company, at any time during the Exercise Period, shall pay a dividend in cash,
securities or other assets to the holders of Ordinary Shares (or other shares
of
the Company’s capital stock into which the Warrants are convertible), other than
(i) as described in Sections 4.1, 4.2 or 4.5, (ii) in connection with the
redemption rights of the holders of Ordinary Shares upon consummation of a
Business Combination, or (iii) in connection with the Company’s liquidation and
the distribution of its assets upon failure to consummate a Business Combination
(any such non-excluded event being referred to herein as an “Extraordinary
Dividend”),
then
the Warrant Price shall be decreased, effective immediately after the effective
date of such Extraordinary Dividend, by the amount of cash and/or the FMV of
any
securities or other assets paid on each Ordinary Share in respect of such
Extraordinary Dividend.
4.5 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding Ordinary Shares
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such Ordinary Shares), or in the case of any consolidation
of
the Company with or into another corporation (other than a consolidation in
which the Company is the continuing corporation and that does not result in
any
reclassification or reorganization of the outstanding Ordinary 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 Ordinary
Shares of the Company 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, reorganization, 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
Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section 4.5. The
provisions of this Section 4.5 shall similarly apply to successive
reclassifications, reorganizations, or consolidations, sales or other
transfers.
4.6 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of 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 shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company shall give
written notice to 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.
4.7 No
Fractional Shares.
Notwithstanding any provision contained in this Agreement to the contrary,
the
Company shall not issue fractional shares upon exercise of Warrants. If, by
reason of any adjustment made pursuant to this 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 Ordinary Shares to be issued
to
the Warrant holder.
4
4.8 Form
of Warrant.
The
form of 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 the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
4.9 Notice
of Certain Transactions.
In the
event that the Company shall propose to (i) offer the holders of its Ordinary
Shares rights to subscribe for or to purchase any securities convertible into
Ordinary Shares or shares of any class or any other securities, rights or
options, (ii) issue any rights, options or warrants entitling the holders of
Ordinary Shares to subscribe for Ordinary Shares or (iii) make a tender offer,
redemption offer or exchange offer with respect to the Ordinary Shares, 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 Ordinary Shares, if any such date is to be fixed, and shall briefly indicate
the effect of such action on the Ordinary Shares and on the number and kind
of
any other shares of stock and on other property, if any, and the number of
Ordinary Shares 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 Company has determined
to
take any such action and (x)
in the
case of any action covered by clause (i) or (ii) above at least 10 days prior
to
the record date for determining the holders of the Ordinary Shares 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
Ordinary Shares, whichever shall be the earlier.
4.10 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 Company, 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 Company 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 Company, to protect such purchase rights as aforesaid.
5. TRANSFER
AND EXCHANGE OF WARRANTS.
5.1 Transfer
of Warrants.
Prior
to the date the warrants are detached from the Units (the “Detachment
Date”),
the
Public Warrants may be transferred or exchanged only together with the Unit
in
which such Warrant is included, and only for the purpose of effecting, or in
conjunction with, a transfer or exchange of such Unit. Furthermore, each
transfer of a Unit on the register relating to such Units shall operate also
to
transfer the Warrants included in such Unit. From and after the Detachment
Date,
this Section 5.1 will have no further force and effect.
5.2 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.
5.3 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided,
however,
that 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
5.4 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.
5.5 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.6 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this 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.
5.7. Private
Placement Warrants.
Notwithstanding anything herein to the contrary, the Warrant Agent shall not
register for transfer any Existing Shareholders’ Warrants or Private Placement
Warrants until: (i) with respect to the Existing Shareholders’ Warrants, the
earlier of: (a) one year after a Business Combination, or (b) 30 months from
the
date of the final prospectus(or 36 months if the period to consummate a Business
Combination is extended by the Company’s shareholders), and (ii) with respect to
the Private Placement Warrants, upon the consummation of a Business Combination,
except for transfers (v)
to the
Company or any of the Company’s officers, directors and employees, or any
affiliate or family member of such individuals, (w)
by gift
to an affiliate or a member of the holder’s immediate family or to a trust or
other entity, the beneficiary of which is one of its officers or directors
or a
member of their respective immediate families, (x)
by
virtue of the laws of decent and distribution upon death of any holder,
(y)
pursuant to a qualified domestic relations order, or (z)
with
respect to limited liability companies and partnerships to their respective
members or partners; provided,
however,
that
the permissive transfers set forth above may be implemented only upon the
respective transferee’s written agreement with the Company to be bound by the
terms and conditions of such transfer restrictions.
6 REDEMPTION.
6.1 Redemption.
Subject
to Sections 6.4 and 6.5 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,
however,
that
the last sale price of the Ordinary Shares has been at least $10.00 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.
Notwithstanding the foregoing, the Warrants and the Ordinary Shares underlying
the Warrants must be covered by an effective registration statement from the
date on which notice of redemption is given through the date fixed for
redemption in order for the Company to exercise its redemption rights pursuant
to this Section 6. The provisions of this Section 6.1 may not be modified,
amended or deleted without the prior written consent of the
Underwriters.
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.
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
are
met. The provisions of this Section 6.4 may not be modified, amended or deleted
without the prior written consent of the Underwriters.
6
6.5 Exclusions.
The
Company understands that the redemption rights provided for by this Section
6 do
not apply to the Private Placement Warrants and the Existing Shareholder
Warrants; provided,
however,
that at
the time of redemption, such Warrants continue to be held by the initial
purchasers thereof, or their permitted assigns (as described in the Securities
Escrow Agreement entered into by the holders of Private Placement Warrants
on
the date hereof).
7. OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1 No
Rights as Shareholder.
A
Warrant does not 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.
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 Ordinary Shares.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued Ordinary Shares that will be sufficient to permit the exercise
in
full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration
of Ordinary Shares.
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 Ordinary Shares issuable upon exercise of the
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement. The
Warrants shall not be exercisable and the Company shall not be obligated to
issue Ordinary Shares unless, at the time a holder seeks to exercise warrants,
a
prospectus related to the Ordinary Shares issuable upon exercise of the Warrants
is current and the Ordinary Shares have been registered or qualified or deemed
to be exempt under the laws of the state of residence of the holder of the
Warrants. In addition, the Company agrees to use its reasonable efforts to
register such securities under the blue sky laws of the states of residence
of
the exercising warrant holders to the extent an exemption is not available.
In
no
event will the registered holder of a Warrant be entitled to receive a net-cash
settlement in lieu of physical settlement in Ordinary Shares, regardless of
whether the Company complies with this Section 7.4. The provisions of this
Section 7.4 may not be modified, amended or deleted without the prior written
consent of the Underwriters.
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 Ordinary 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
shares.
7
8.2 Resignation
or Consolidation 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 at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws
of
the State of New York, in good standing and having its principal office in
the
Borough of Manhattan, City and State of New York, and authorized under such
laws
to exercise corporate trust powers and subject to supervision or examination
by
federal or state authority. After appointment, any successor Warrant Agent
shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
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
Ordinary Shares 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.
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 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 Chief Executive Officer or Chairman of the board
of
directors 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
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
Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as
to
whether any Ordinary Shares 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
Ordinary Shares through the exercise of Warrants.
8.6 Waiver.
The
Warrant Agent hereby waives any and all right, title, interest or claim of
any
kind (“Claim”)
in or
to any distribution of the Trust Account (as defined in that certain Investment
Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Warrant Agent as trustee thereunder), and hereby agrees not
to
seek recourse, reimbursement, payment or satisfaction for any Claim against
the
Trust Account for any reason whatsoever.
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.
9.2 Notices.
Any
notice, statement or demand authorized by this 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 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:
Chardan
China 2008 Acquisition Corp.
x/x
Xxxxxxx Xxxxxxx, XXX
Xxxxx
00X, Xxxxx X
Xxxxxxxx
Kenzo Plaza
00
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx,
000000, Xxxxx
Fax
No.:
00-00-00000000
Attn:
Xxxxxxxx Xxxxx, Chief Financial 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 within five days after deposit
of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxx Xxxxxx & Xxxxx Di Paolo
with
a
copy in each case to:
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxx X. Xxxxxxx, Esq.
9
and
Xxxxx
Xxxxxx, Carret & Co., LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxxx XxXxxxxx
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxxxx Xxxxxx
and
Xxxx
Capital Partners, LLC
00
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxx Xxxxxxxxxxxxxxx
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxxxx X. Xxxxxxxxxx, Esq.
9.3 Applicable
Law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflict of laws. The Company 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 inconvenient 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 6.1, 6.4, 7.4, 9.2
and
9.8 hereof, the Underwriters, any right, remedy, or claim under or by reason
of
this Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. The Underwriters shall be deemed to be a third-party beneficiary of
this
Agreement with respect to Sections 6.1, 6.4, 7.4 9.2 and 9.8 hereof. All
covenants, conditions, stipulations, promises, and agreements contained in
this
Agreement shall be for the sole and exclusive benefit of the parties hereto
(and
the Underwriters with respect to the Sections 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.
10
9.5 Examination
of the Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent in the Borough of Manhattan, City and State of New York,
for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
9.6 Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Agreement and shall not affect the interpretation thereof.
9.8 Amendments.
9.8.1 Modification
Without Consent of the Registered Holders.
This
Agreement and any Warrant certificate may be amended by the parties hereto
by
executing a supplemental warrant agreement (a “Supplemental
Agreement”),
without the consent of any of the registered holders, for the purpose of (i)
curing any ambiguity, or curing, correcting or supplementing any defective
provision contained herein, or making any other provisions with respect to
matters or questions arising under this agreement that is not inconsistent
with
the provisions of this agreement or the Warrant certificates, (ii) evidencing
the succession of another corporation to the Company and the assumption by
any
such successor of the covenants of the Company contained in this Agreement
and
the Warrants, (iii) evidencing and providing for the acceptance of appointment
by a successor Warrant Agent with respect to the Warrants, (iv) adding to the
covenants of the Company for the benefit of the registered holders or
surrendering any right or power conferred upon the Company under this Agreement,
or (viii) amending this agreement and the Warrants in any manner that the
Company may deem to be necessary or desirable and that will not adversely affect
the interests of the registered holders in any material respect.
9.8.2 Modification
Requiring Consent of the Registered Holders.
The
Company and the Warrant Agent may amend this Warrant Agreement and the Warrants
by executing a Supplemental Agreement with the consent of the registered holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the registered holders under this Warrant Agreement;
provided,
however,
that,
without the consent of each of the registered holders affected thereby, no
such
amendment may be made that (i) changes the Warrants so as to reduce the number
of Ordinary Shares purchasable upon exercise of the Warrants or so as to
increase the Exercise Price (other than as provided by Section 4), (ii) shortens
the period of time during which the Warrants may be exercised, (iii) otherwise
adversely affects the exercise rights of the registered holders in any material
respect, or (iv) reduces the number of unexercised Warrants the registered
holders of which must consent for amendment of this Agreement or the Warrants.
Notwithstanding anything contained herein to the contrary, Section 9 may be
amended only by the parties hereto with the consent of the
Underwriters.
9.8.3 Third
Party Beneficiary.
The
parties hereto acknowledge that the Underwriters shall be an intended third
party beneficiary of this Agreement and shall have the right to enforce this
Agreement as if the Underwriters are a party to this Agreement.
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
11
IN
WITNESS WHEREOF,
this
Warrant Agreement has been duly executed by the parties hereto as of the day
and
year first above written.
|
By:
|
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title:
Chief Executive Officer and
Director
|
|
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
12
