WARRANT PURCHASE AGREEMENT
Exhibit
10.1
THIS
WARRANT PURCHASE AGREEMENT, dated as of December 13, 2010 (this “Agreement”) is
entered into by and among Wuhan General Group (China), Inc., a Nevada
corporation (the “Company”), Fame Good
International Limited, a British Virgin Islands company (“Fame Good”), and the
undersigned holders of the Company’s Series A Warrants and/or Series B Warrants
(collectively, the “Holders”).
WITNESSETH
WHEREAS,
the Company currently has Series A and B warrants outstanding (the “Warrants”)
representing the right to purchase an aggregate of 9,993,977 shares of the
Company’s common stock (the “Warrant
Stock”);
WHEREAS,
Fame Good has offered to purchase all or part of each Holder’s Warrant for a
purchase price payable in an amount of Chinese Renminbi equal to $0.50 per share
of Warrant Stock underlying the Warrant, based on the average of the buying and
selling exchange rates as published by the Bank of China on the date hereof (the
“Purchase
Price”);
WHEREAS,
the Transaction (as defined below) shall be made pursuant to an exemption under
the Securities Act of 1933, as amended; and
WHEREAS,
the parties desire to enter into the Transaction upon the terms and conditions
herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, intending to be legally bound hereby, the parties
hereto agree as follows:
1. Each
Holder agrees to sell the number of shares of Warrant Stock underlying its
Series A Warrant and/or the number of shares of Warrant Stock underlying its
Series B Warrant indicated on such Holder’s signature page hereto (the “Elected Warrant
Stock”) to Fame Good, and Fame Good agrees to purchase the Elected
Warrant Stock from each Holder, for the Purchase Price (the “Transaction”). Each
Holder shall relinquish such Holder’s right, title and interest in the Elected
Warrant Stock to Fame Good.
2. In
connection with the Transaction, (i) each Holder that also holds the Company’s
Series A Convertible Preferred Stock, $0.0001 par value per share, has signed
and delivered the Waiver, of even date herewith, of the Lock-Up Agreement, dated
February 7, 2007, between the Company and Fame Good (the “Waiver”) and (ii)
certain of the Holders have signed and delivered the Stockholders Agreement, of
even date herewith, with the Company, Fame Good and Xx Xxx (the “Stockholders
Agreement”).
3. Each
Holder hereby represents and warrants that:
a. it
acknowledges and agrees to the terms and conditions of the Transaction as
provided for herein;
b. it
is duly incorporated or organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization;
c. it
has the requisite power and authority to enter into and perform this Agreement
and, if applicable, the Stockholders Agreement and the Waiver, and to consummate
the transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and, if applicable, the Stockholders Agreement and
the Waiver, by such Holder and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate or partnership action, and no further consent or authorization of such
Holder or its Board of Directors, stockholders, or partners, as the case may be,
is required. Each of this Agreement and, if applicable, the Stockholders
Agreement and the Waiver, has been duly authorized, executed and delivered by
such Holder and constitutes, or shall constitute when executed and delivered, a
valid and binding obligation of the Holder enforceable against the Holder in
accordance with the terms thereof;
d. the
execution, delivery and performance of this Agreement and, if applicable, the
Stockholders Agreement and the Waiver, and the consummation by such Holder of
the transactions contemplated hereby and thereby or relating hereto do not and
will not (i) result in a violation of such Holder’s charter documents or bylaws
or other organizational documents or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of any agreement, indenture or instrument or obligation to which
such Holder is a party or by which its properties or assets are bound, or result
in a violation of any law, rule, or regulation, or any order, judgment or decree
of any court or governmental agency applicable to such Holder or its properties
(except for such conflicts, defaults and violations as would not, individually
or in the aggregate, have a material adverse effect on such Holder). Such Holder
is not required to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement or, if
applicable, the Stockholders Agreement and the Waiver;
e. it
has not exercised, assigned, pledged or hypothecated the Warrants (or the
Elected Warrant Stock), in part or in whole, and hereby grants the Company the
power of attorney to transfer the Series A and/or Series B Warrants exercisable
for all of the Holder’s Elected Warrant Stock to Fame Good on the books and
records of the Company upon the Company’s receipt of this fully executed and
completed Agreement and the surrender by the Holder of the Series A and/or
Series B Warrant certificate(s) exercisable for the Elected Warrant Stock;
and
f. it
has delivered this Agreement together with its Series A and/or Series B Warrant
certificate(s) exercisable for the Elected Warrant Stock to Xxxxxx X. Xx at
Xxxxxxxx Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000.
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4. The
Holder hereby agrees to indemnify and hold harmless the Company, its officers,
directors, successors and assigns, and any person now or hereafter acting as the
Company’s transfer agent or acting in any similar capacity, from and against any
and all liability, loss, damage and expense in connection with, or arising out
of such person’s actions in accordance with the terms of this
Agreement.
5. The
Company hereby represents and warrants that:
a. it
is duly incorporated, validly existing and in good standing under the laws of
the State of Nevada;
b. it
has the requisite power and authority to enter into and perform this Agreement
and the Stockholders Agreement and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance of this Agreement
and the Stockholders Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action, and no further consent or authorization of the
Company or its Board of Directors is required. Each of this Agreement and the
Stockholders Agreement has been duly authorized, executed and delivered by the
Company and constitutes, or shall constitute when executed and delivered, a
valid and binding obligation of the Company enforceable against the Company in
accordance with the terms thereof;
c. the
execution, delivery and performance of this Agreement and the Stockholders
Agreement and the consummation by the Company of the transactions contemplated
hereby and thereby or relating hereto do not and will not (i) result in a
violation of the Company’s organizational documents or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument or obligation to which the Company is a party or by which its
properties or assets are bound, or result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or governmental agency
applicable to the Company or its properties (except for such conflicts, defaults
and violations as would not, individually or in the aggregate, have a material
adverse effect on the Company). The Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under this Agreement or the Stockholders Agreement;
and
d. it
has not provided any of the Holders with any material non-public information
concerning the Company in connection with this Agreement and the transactions
contemplated hereby.
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6. Miscellaneous.
a. This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflict of law principles.
b. This
Agreement and, if applicable, the Stockholders Agreement and the Waiver
constitute the entire agreement between the parties regarding the subject
transaction, superseding any prior agreements or understandings between them,
and shall be binding upon the Holder and Holder’s permitted assigns and shall
inure to the benefit of the Company and its successors and assigns.
c. This
Agreement may be executed in several counterparts, including by way of facsimile
or electronic transmission, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
[SIGNATURE
PAGES FOLLOW]
4
IN WITNESS WHEREOF, this Agreement is
accepted as of the date first written above.
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“Company”
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By:
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/s/ Xxxxxx Xx
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Name: Xxxxxx
Xx
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Title: Chief
Financial Officer
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[Signature
Page to Warrant Purchase Agreement]
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“Fame
Good”
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FAME
GOOD INTERNATIONAL LIMITED
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By:
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/s/ Xx Xxx
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Name: Xx
Xxx
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Title: Director
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[Signature
Page to Warrant Purchase Agreement]
VISION
OPPORTUNITY MASTER FUND, LTD.
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By:
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/s/ Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
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Title: Director
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Address:
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00
X. 00xx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
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Number
of shares of Warrant Stock underlying
Series
A Warrant to be sold under
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1,711,033
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Number
of shares of Warrant Stock underlying
Series
B Warrant to be sold under
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1,596,964
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Aggregate
Purchase Price:
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$1,653,998.50
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VISION
CAPITAL ADVANTAGE FUND LP
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By:
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/s/ Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
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Title: Authorized
Signatory
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Address:
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00
X. 00xx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
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Number
of shares of Warrant Stock underlying
Series
A Warrant to be sold under
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220,297
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Number
of shares of Warrant Stock underlying
Series
B Warrant to be sold under
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205,611
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Aggregate
Purchase Price:
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$212,954
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[Signature
Page to Warrant Purchase Agreement]
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THE
USX CHINA FUND
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By:
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx
X. Xxxx
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Title: President
of Xxxx Financial Group, Advisor to The USX China
Fund
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Address:
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0000
Xxxxxx Xxx., Xxx. 0000
Xxxxxxx,
XX 00000
Attn: Xxx
Xxxxxxxx
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Number
of shares of Warrant Stock underlying
Series
A Warrant to be sold under
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180,000
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Number
of shares of Warrant Stock underlying
Series
B Warrant to be sold under
the
Warrant Purchase Agreement:
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Aggregate
Purchase Price:
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[Signature
Page to Warrant Purchase Agreement]
