AMENDED AND RESTATED WARRANT CLARIFICATION AGREEMENT
Exhibit 10.11
AMENDED AND RESTATED
WARRANT CLARIFICATION AGREEMENT
WARRANT CLARIFICATION AGREEMENT
This Warrant Clarification Agreement (this “Agreement”), dated November 22, 2006, is to the
Warrant Agreement, dated as of March 23, 2004 (the “Warrant Agreement”), by and between Great Wall
Acquisition Corporation, a Delaware corporation, with offices at 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Company”), and Continental Stock Transfer & Trust
Company, a New York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Warrant Agent”).
WHEREAS, Section 9.8 of the Warrant Agreement provides that the parties to the Warrant
Agreement may amend the Warrant Agreement without the consent of any registered holder for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision
contained therein or adding or changing any other provisions with respect to matters or questions
arising under the Warrant Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered holders;
WHEREAS, as a result of certain questions that have arisen regarding the accounting treatment
applicable to the Warrants, the parties hereto deem it necessary and desirable to amend the Warrant
Agreement to clarify that the registered holders do not have the right to receive a net cash
settlement in the event the Company does not maintain a current prospectus relating to the common
stock issuable upon exercise of the warrants at the time such warrants are exercisable;
WHEREAS, as a result of certain questions that have arisen regarding the Company’s redemption
rights with respect to the Warrants, the parties hereto deem it necessary and desirable to amend
the Warrant Agreement to clarify that the Company may not redeem the Warrants unless there is a
current prospectus under Securities Act of 1933 with respect to the shares of common stock issuable
upon exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the parties hereto agree to amend the Warrant Agreement as set forth
herein.
1. Warrant Agreements. The undersigned hereby agree that the Warrant Agreement is
hereby amended by adding the following last sentence to Section 3.3.2:
“In no event will the registered holder of a Warrant be entitled to receive a net-cash settlement
or other consideration in lieu of physical settlement in shares of Common Stock if the Common Stock
underlying the Warrants is not covered by an effective
registration statement. In the absence of such an effective registration statement the Warrant may
expire unexercised.”
2. Redemption. The undersigned hereby agree that the Warrant Agreement is hereby
amended by adding the following last sentence to Section 6.1:
“Notwithstanding anything to the contrary set forth in this Warrant Agreement, the Company may not
redeem any Warrant unless there is a effective and current registration statement under the Act
with respect to the Common Stock issuable upon exercise of the Warrant.”
3. Miscellaneous.
a. Governing Law; Jurisdiction. The validity, interpretation, and performance of this
Agreement 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 in care of the address set forth above or such other address as the
undersigned shall furnish in writing to the other. Such mailing shall be deemed personal service
and shall be legal and binding upon the Company in any action, proceeding or claim.
b. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and to their respective heirs, legal representatives, successors and assigns.
c. Entire Agreement. This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them. Except as set forth
in this Agreement, provisions of the original Warrant Agreement which are not inconsistent with
this Agreement shall remain in full force and effect. This Agreement may be executed in
counterparts.
d. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification Agreement as
of the date first written above.
| GREAT WALL ACQUISITION CORPORATION |
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| By: | /s/ Xxx Xxxxx Li | |||
| Name: | Xxx Xxxxx Li | |||
| Title: | Chairman and CEO | |||
| CONTINENTAL STOCK TRANSFER & TRUST |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chairman and President | |||
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