WARRANT AMENDMENT
Exhibit
10.2
This
WARRANT AMENDMENT (this “Amendment”) is dated as of January 22, 2010 by and
among China Integrated Energy, Inc., a Delaware corporation (the “Company”), and
the investors signatory hereto (each an “Investor”, collectively, the
“Investors”). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Securities Purchase
Agreement (as defined below).
RECITALS
WHEREAS,
the Company entered into a Series A Convertible Preferred Stock Purchase
Agreement (the “Securities Purchase Agreement”), dated as of October
23, 2007 (the “Closing Date”), pursuant to which the Company conducted a private
offering solely to accredited investors pursuant to Rule 506 of Regulation D of
the Securities Act of 1933, as amended (the “Act”), of its series A preferred
stock and warrants; and
WHEREAS,
pursuant to Section 4(f) of the Series A-2 Warrant to Purchase Shares of Common
Stock of the Company which were delivered to the Investors pursuant to the
Securities Purchase Agreement (the “Warrant”), the investors had certain
weighted average anti-dilution protection in the event the Company issues any
additional shares of Common Stock or Common Stock Equivalents (as defined in the
Warrant) at a price per share less than the Warrant Price then in effect;
and
WHEREAS,
the Company has requested that the Investors amend the Warrant to delete
Sections (d) and (e), which are no longer applicable, and Sections 4(f) and (g)
thereof; and agree that in lieu of such provisions the holders of the Warrant
shall have a right to pre-approve any Additional Issuance at a price less than
the Warrant Price then in effect, and give retroactive effect to such
amendments; and
WHEREAS,
pursuant to Section 11 of the Warrant, no provision of the Warrant may be
amended without the written consent of the Company, the Initial Holders (as
defined in the Warrant) and the Holders of more than 25% of the Warrant;
and
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendment. Pursuant
to Section 11 of the Warrant, the parties hereto hereby amend the Warrant, as of
the date hereof, by:
(a) deleting Sections 4(d), (e) and
(g);
(b) deleting the text of Section 4(f)
and replacing it with the following:
“Issuance of Additional
Shares of Common Stock and Common Stock Equivalents.
Until
October 23, 2011, the Issuer shall not issue any Additional Shares of Common
Stock or, Common Stock Equivalents (otherwise than as provided in the foregoing
subsections
(a) through (c) of this Section 4), at a price per share less than the
Warrant Price then in effect or without consideration, without the prior written
consent of the Initial Holders, assuming the Initial Holders still own all or
part of this Warrant, and if not, then the Holders of twenty-five percent (25%)
of the Warrant.”
2. Effective
Time. The parties hereto agree that this Amendment shall be
retroactive from and including, January 1, 2009.
Exhibit
10.2
3. Effect on Transaction
Documents. Except as set forth above the Transaction Documents
and any other documents related thereto, shall remain in full force and effect
and are hereby ratified and confirmed.
4. Governing Law;
Jurisdiction. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
5. Counterparts. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party.
6. Severability. If any
provision of this Amendment shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Amendment or the validity or
enforceability of this Amendment in any other jurisdiction.
[REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGES OF COMPANY TO FOLLOW]
Exhibit
10.2
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
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By:
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/s/
Gao Xincheng
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Name:
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Gao
Xincheng
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Title:
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Chief
Executive
Officer
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[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGES OF INVESTORS TO FOLLOW]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
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VISION
OPPORTUNITY MASTER FUND LTD.
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx Xxxxxxxx |
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Title:
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Authorized
Signatory
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Investors’
Signature Pages
