WARRANT AGREEMENT
Exhibit
4.4
This
Warrant Agreement (this “Agreement”) made as of ____ __, 2007 between China
Resources Ltd., a Delaware corporation, with offices at Xxxx Xxxx China Xxx
Xxx
Trading Co., Ltd., Room 921, Block A, Golden Central Tower, Jintian Road, Futian
District, Shenzhen, P.R. China.
(the “Company”),
and American Stock
Transfer & Trust Company, a
New York corporation, with offices at 00 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000
(the
“Warrant
Agent”).
1. Appointment
of Warrant Agent. The Company hereby appoints American Stock Transfer &
Trust Company, 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, and shall
be in substantially the form of Exhibit A-1 hereto, the provisions of which
are
incorporated herein and shall be signed by, or bear the facsimile signature
of,
the Chairman of the Board or President and Treasurer, Secretary or Assistant
Secretary of the Company and shall bear a facsimile of the Company’s seal. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect
as
if he or she had not ceased to be such at the date of issuance.
2.2 Effect
of Countersignature. Unless and until countersigned by the Warrant Agent
pursuant to this Agreement, a Warrant shall be invalid and of no effect and
may
not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant
Register. The Warrant Agent shall maintain books (“Warrant Register”) for
the registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall
issue and register the Warrants in the names of the respective holders thereof
in such denominations and otherwise in accordance with instructions delivered
to
the Warrant Agent by the Company.
2.3.2 Registered
Holder. Prior to due presentment for registration or 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.
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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 $7.50 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 for a period of not less than
ten
business days; provided, that 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
commencing on the later of (i) the completion by the Company of a Business
Combination (as defined below) and (ii) ___, 2008, (“Exercise Period”) and
terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
___,
2011, or (ii) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement (as applicable, “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,
whether or not 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 the
Company will provide notice to registered holders of the Warrants of such
extension not less than 20 days prior to the applicable Expiration Date;
provided, further, that any such extension shall be identical in duration among
all of the Public and Private Warrants, as applicable.
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, by 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 exercisable for the number of shares of Common Stock 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 and shall have no obligation to settle any Warrant
exercise unless a registration statement under the Act with respect to the
Common Stock underlying such Warrant is effective, subject to the Company
satisfying its obligations under Section 7.4 to use its best
efforts. In the event a registration statement with respect to the
Common Stock underlying a Warrant is not effective under the Act, the holder
of
such Warrant shall not be entitled to exercise such
Warrant. Notwithstanding anything to the contrary contained in this
Warrant Agreement, under no circumstances will the Company be required to net
cash settle the exercise of the Warrants. Warrants may not be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful. As a result of the provisions of this
Section 3.3.2, any or all of the Warrants may expire unexercised.
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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 Private
Warrants. The Private Warrants may not be transferred until the
earlier of (i) the consummation of a Business Combination (as that term is
defined in the Registration Statement) or (ii) the Company’s
dissolution and liquidation.
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.
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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 shares of Common Stock 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 shall similarly apply to
successive reclassifications, reorganizations, mergers or consolidations, sales
or other transfers.
4.5 Notices
of Changes in Warrant. Upon every adjustment of the Warrant Price or the
number of shares issuable upon exercise of a Warrant, the Company shall give
written notice thereof to the Warrant Agent and the Representatives, 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 Section 4.1, 4.2, 4.3 or 4.4, then, in
any
such event, the Company shall give written notice to each Warrant holder, at
the
last address set forth for such holder in the warrant register, of the record
date or the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such
event.
4.6 No
Fractional Shares. Notwithstanding any provision contained in this Warrant
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant to this
Section 4, the holder of any Warrant would be entitled, upon the exercise of
such Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up to the nearest whole number the number of the
shares of Common Stock to be issued to the Warrant holder.
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4.7 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 the Company may deem appropriate and which does not affect the substance
thereof, and any Warrant thereafter issued or countersigned, whether in exchange
or substitution for an outstanding Warrant or otherwise, may be in the form
as
so changed.
4.8 Notice
of Certain Transactions. In the event the Company shall propose to (a) offer
the holders of its Common Stock rights to subscribe for or to purchase any
securities convertible into shares of Common Stock or shares of stock of any
class or any other securities, rights or options, (b) issue any rights, options
or warrants entitling the holders of Common Stock to subscribe for shares of
Common Stock or (c) make a tender offer or exchange offer with respect to the
Common Stock, the Company shall send to the Warrant holders a notice of such
proposed action or offer. Such notice shall be mailed to the registered holders
at their addresses as they appear in the Warrant Register, which shall specify
the record date for the purposes of such dividend, distribution or rights,
or
the date such issuance or event is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed, and
shall briefly indicate the effect of such action on the Common Stock and on
the
number and kind of any other shares of stock and on other property, if any,
and
the number of shares of Common Stock and other property, if any, issuable upon
exercise of each Warrant and the Warrant Price after giving effect to any
adjustment pursuant to this Article 4 which would be required as a result of
such action. Such notice shall be given as promptly as practicable after the
Board of Directors of the Company (the “Board”) has determined to take any such
action and (x) in the case of any action covered by clause (a) or (b) above
at
least 10 days prior to the record date for determining the holders of the Common
Stock for purposes of such action or (y) in the case of any other such action
at
least 20 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Common Stock, whichever shall
be
the earlier.
4.9 Other
Events. If any event occurs as to which the foregoing provisions of this
Article 4 are not strictly applicable or, if strictly applicable, would not,
in
the good faith judgment of the Board, fairly and adequately protect the purchase
rights of the registered holders of the Warrants in accordance with the
essential intent and principles of such provisions, then the Board shall make
such adjustments in the application of such provisions, in accordance with
such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board, to protect such purchase rights as
aforesaid.
5.1 Registration
of Transfer. The Warrant Agent shall register the transfer, from time to
time, of any outstanding Warrant upon the Warrant Register, upon surrender
of
such Warrant for transfer, properly endorsed with signatures properly guaranteed
and accompanied by appropriate instructions for transfer. Upon any such
transfer, a new Warrant representing an equal aggregate number of Warrants
shall
be issued and the old Warrant shall be cancelled by the Warrant Agent. The
Warrants so cancelled shall be delivered by the Warrant Agent to the Company
from time to time upon request.
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5.2 Procedure
for Surrender of Warrants. Warrants may be surrendered to the
Warrant Agent, together with a written request for exchange or transfer, and
thereupon the 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, in the
event 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 such transfer may be made and indicating whether the new Warrants must
also bear a restrictive legend.
5.3 Fractional
Warrants. The Warrant Agent shall not be required to effect any registration
of transfer or exchange which will result in the issuance of a warrant
certificate for a fraction of a warrant.
5.4 Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5 Warrant
Execution and Countersignature. The Warrant Agent is hereby
authorized to countersign and to deliver, in accordance with the terms of this
Agreement, the Warrants required to be issued pursuant to the provisions of
this
Section 5, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrants duly executed on behalf of the Company for
such
purpose.
6. Redemption.
6.1 Redemption.
Subject to Section 6.4 hereof, not less than all of the outstanding Warrants
may
be redeemed, at the option of the Company, at any time after they become
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2, at the price of $.01 per Warrant
(“Redemption Price”), provided that the last sales price of the Common Stock has
been at least $14.25 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 and provided that the Warrants
and
shares of Common Stock underlying the Warrants are covered by a registration
statement that is effective under the Act. Because redemption is at
the option of the Company and because such redemption is subject to conditions,
any or all of the Warrants may expire unredeemed. The provisions of
this Section 6.1 may not be modified, amended or deleted without the prior
written consent of the Representatives.
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.
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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 and only
during the Exercise Period. To the extent a person holds rights to purchase
Warrants, such purchase rights shall not be extinguished by redemption. However,
once such purchase rights are exercised, the Company may redeem the Warrants
issued upon such exercise provided that the criteria for redemption is met,
including the opportunity of the Warrant holder to exercise prior to redemption
pursuant to Section 6.3. The provisions of this Section 6.4 may not be modified,
amended or deleted without the prior written consent of the
Representatives.
7.1 No
Rights as Stockholder. A Warrant does not entitle the registered holder
thereof to any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise
any
preemptive rights to vote or to consent or to receive notice as stockholders
in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.
7.3 Reservation
of Common Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of all outstanding Warrants
issued pursuant to this Agreement.
7.4 Registration
of Common Stock. The Company agrees that prior to the
commencement of the Exercise Period, it shall use its best efforts to prepare
and 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 all shares of Common Stock issuable upon
exercise of the Warrants, and it shall use its best efforts to take such action
as is necessary to qualify for sale in those states in which the Warrants were
initially offered by the Company and the Common Stock issuable upon exercise
of
the Warrants. In either case, the Company will use its best efforts to cause
the
same to become effective on or prior to the commencement of the Exercise Period
and use its best efforts to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement; provided, however, that the Company shall not be obligated
to
deliver securities and shall not have penalties for failure to deliver
securities, if a registration statement is not effective at the time of exercise
by the holder. The provisions of this Section 7.4 may not be
modified, amended or deleted without the prior written consent of the
Representatives. In addition, the Company agrees to use its best
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.
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8.1 Payment
of Taxes. The Company will from time to time promptly pay all taxes and
charges that may be imposed upon the Company or the Warrant Agent in respect
of
the issuance or delivery of shares of Common Stock upon the exercise of
Warrants, but the Company shall not be obligated to pay any transfer taxes
in
respect of the Warrants or such shares.
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 Representatives and
the
predecessor Warrant Agent and the transfer agent for the Common Stock not later
than the effective date of any such appointment.
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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 on the part of the Company or the 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.
8.4.1 Reliance
on Company Statement. Whenever in the performance of its duties under this
Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking
or
suffering any action hereunder, such fact or matter (unless other evidence
in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the President
or
Chairman of the Board of the Company and delivered to the Warrant Agent. The
Warrant Agent may rely upon such statement for any action taken or suffered
in
good faith by it pursuant to the provisions of this Agreement.
8.4.2 Indemnity.
The Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The Warrant Agent shall have no responsibility with respect to the validity
of
this Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Warrant; nor shall it be responsible to make any adjustments required
under the provisions of Section 4 hereof or responsible for the manner, method,
or amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common Stock will when
issued be valid and fully paid and nonassessable.
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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
Common Stock through the exercise of Warrants.
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 Warrant Agreement to be
given
or made by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be sufficiently given when so delivered if by hand or overnight
delivery or if sent by certified mail or private courier service 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:
Xxxx
Xxxx
China Xxx Xxx Trading Co., Ltd.
Xxxx
000,
Xxxxx X, Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxx
Futian
District, Shenzhen, P.R. China
Attn: Xxxx
Xxxx, President and Chief Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Warrant Agent shall
be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service five days after deposit of such
notice, postage prepaid, addressed (until another address is filed in writing
by
the Warrant Agent with the Company), as follows:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Compliance Department
with
a
copy in each case to:
Xxxxx
&
Xxx
Xxxxxx
Three
Park Avenue, 16th floor
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx XxXxxx, Esq.
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx, Managing Director
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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 inconvenience forum. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the
Company in any action, proceeding or claim.
9.4 Persons
Having Rights under this Agreement. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof
is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the registered holders of the
Warrants and, for the purposes of Sections 2.4, 3.3.5, 6.1, 6.4, 7.4, 9.2 and
9.8 hereof, the Representatives, any right, remedy, or claim under or by reason
of this Warrant Agreement or of any covenant, condition, stipulation, promise,
or agreement hereof. The Representatives shall be deemed to be a third-party
beneficiary of this Agreement with respect to Sections 2.4, 3.3.5 6.1, 6.4,
7.4,
9.2 and 9.8 hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and the Representatives with respect
to
the Sections 2.4, 3.3.5, 6.1, 6.4, 7.4, 9.2 and 9.8 hereof) and their successors
and assigns and of the registered holders of the Warrants. This Section 9.4
shall not be modified or amended without the prior written consent of the
Representatives.
9.5 Examination
of the Warrant Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
City and State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his Warrant
for
inspection by it.
9.6 Counterparts.
This Agreement may be executed in any number of original or facsimile
counterparts and each of such counterparts shall for all purposes be deemed
to
be an original, and all such counterparts shall together constitute but one
and
the same instrument.
9.7 Effect
of Headings. The Section headings herein are for convenience only and are
not part of this Warrant Agreement and shall not affect the interpretation
thereof.
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9.8 Amendments.
This Agreement may be amended by the parties hereto without the consent of
any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that
the
parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase
the
Warrant Price or shorten the Exercise Period, shall require the written consent
of each of the Representatives and the registered holders of a majority of
the
then outstanding Warrants. Notwithstanding the foregoing, the Company may lower
the Warrant Price or extend the duration of the Exercise Period in accordance
with Sections 3.1 and 3.2, respectively, without such consent.
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 the document intentionally left blank. Signature page to
follow)
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Attest:
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By:
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Name:
Title:
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Xxxx
Xxxx
President
and Chief Executive Officer
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Attest:
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
Title:
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______________
______________
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