AMENDED AND RESTATED CLASS B WARRANT AGREEMENT
Exhibit
4.3
AMENDED
AND RESTATED
Agreement
(this “Agreement”) made
as of July 9,
0000 xxxxxxx Xxxx Xxxxx Holdings Limited, an exempted company with limited
liability incorporated in the Cayman Islands, with its registered office at the
offices of Xxxxxx Corporate Services Limited, X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx
Xxxxxx, XX0-0000, (xxx “Company”), and Continental
Stock Transfer & Trust Company, a New York corporation, with offices at
Continental Stock Transfer & Trust Company, 00 Xxxxxxx Xxxxx, 0xx xxxxx, Xxx
Xxxx XX, 00000 (the “Warrant
Agent”).
WHEREAS, Middle Kingdom
Alliance Corp., a Delaware corporation (“Middle Kingdom”), previously
conducted a public offering (“Public Offering”) of Series A
Units and Series B Units (collectively, the “Units”) and, in connection
therewith, determined to issue and deliver up to (i) 3,300,000 Class B Warrants
(plus an additional 495,000 Class B Warrants if the representative of the
underwriters exercise their over-allotment option) (the “Class B Public Warrants”) to
the public investors, and (ii) 330,000 Class B Warrants to I-Bankers Securities,
Inc. (the “Representative”) or their
designees (“Representative’s
Warrants” and, together with the Class B Public Warrants, the “IPO Warrants”), each of such IPO
Warrants evidencing the right of the holder thereof to purchase one share, par
value $0.001, of Middle Kingdom’s common stock (“Common Stock”) for $5.00,
subject to adjustment; and
WHEREAS, the form, provision
and terms of the IPO Warrants were set forth in a Class B Warrant Agreement
between Middle Kingdom and the Warrant Agent dated as of December 19, 2006, as
amended (the “Original Class B
Warrant Agreement”); and
WHEREAS, the Company has filed
with the Securities and Exchange Commission Registration Statement No 333-153492
on Form S-4 (the “Registration
Statement”) for the registration, under the Securities Act of 1933, as
amended (the “Act”) of,
among other securities, the IPO Warrants and the Ordinary Shares issuable upon
exercise of the IPO Warrants; and
WHEREAS, Middle Kingdom has
entered into that certain Agreement and Plan of Merger, Conversion and Share
Exchange, dated September 5, 2008 (as amended, the “Exchange Agreement”) with Pypo
Digital Company Limited, an exempted company with limited liability incorporated
in the Cayman Islands, Arch Digital Holdings Limited, a British Virgin Islands
corporation (“Arch
BVI”), Capital Ally Investments Limited, a British Virgin Islands
corporation (“Capital
Ally”), and various other parties set forth on the signature pages to the
Exchange Agreement. Pursuant to the Exchange Agreement, Middle Kingdom has
merged with and into its wholly owned subsidiary MK Arizona Corp., an Arizona
corporation (“MK
Arizona”), and following such merger, MK Arizona has converted to and
registered by way of continuation and continued its existence as the
Company. As a result of these transactions (the “Business Combination”), among
other things, the Company assumed each outstanding Class B Warrant of Middle
Kingdom, thereby entitling each holder thereof to purchase an equivalent number
of ordinary shares of the Company, par value US$0.001 per share (“Ordinary Shares”);
and
WHEREAS, pursuant to the
Exchange Agreement the Company will issue 1,700,000 Class B Warrants to Arch BVI
and 1,700,000 Class B Warrants to Capital Ally (the “Exchange Warrants,” and,
together with the IPO Warrants, the “Warrants”), with each Exchange
Warrant evidencing the right of the holder thereof to purchase one Ordinary
Share for $5.00, subject to adjustment as described herein; 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; and
WHEREAS, the Company desires
to update the Original Class B Warrant Agreement to reflect the consummation of
the transactions contemplated by the Exchange Agreement, and 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 Warrants;
and
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. Warrants may be issued in
registered form only, and shall, subject to Section 2.4 hereof, 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 Chief
Executive Officer, Chairman of the Board, Chief Financial Officer or any Senior Vice President of the
Company and shall, if the Company has a seal, 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.
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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 IPO Warrants
and Exchange Warrants. The IPO Warrants shall have
substantially the same terms and be in substantially the same form as the
Exchange Warrants. For the avoidance of doubt, the IPO Warrants, whether or not replaced
with the form of Warrant attached hereto, shall have the rights as set forth in the form of
Warrant attached hereto pursuant to Section 4.4 of the Original Class B Warrant
Agreement, and shall hereafter be governed by the terms of this
Agreement.
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 Warrant
Agreement, to purchase from the Company the number of Ordinary Shares stated
therein, at the price of $5.00 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 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.
3.2 Duration of
Warrants. A
Warrant may be exercised only during the period (“Exercise
Period”) commencing on
_July 9,
2009_, 2009 and terminating
at 5:00 p.m., New York City time on the earlier to occur of (i) December 13,
2013 or (ii) 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
become void, 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. Notwithstanding the foregoing, a Warrant may
expire unexercised regardless of whether a registration statement is currently
effective under the Act, with respect to the Ordinary Shares
issuable upon exercise of the Warrants.
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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 (i) 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 Shares,
and the issuance of the Ordinary Shares or (ii) in the event that the Board of
Directors of the Company, in their sole discretion, determine that the Warrants
may be exercised on a “cashless basis”, by surrendering his or her Warrant for
that number of Ordinary Shares equal to the quotient obtained by dividing (x)
the product of the number of Ordinary Shares underlying the Warrant, multiplied
by the difference between the Warrant Price and the “Fair Market Value” (defined
below) by (y) the Fair Market Value. The “Fair Market Value” 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 the notice of
redemption is sent to holders of Warrant pursuant to Section 6 hereof or in
connection with the foregoing sentence, the date of exercise of the Warrant.
Notwithstanding the
foregoing, at any time commencing one year after the commencement of the
Exercise Period, if no registration statement is effective permitting the sale
of the Ordinary Shares underlying the Warrants, the Warrants may be exercised on
a “cashless” basis. 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.
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 (i) enter the name of
the registered holder of such Warrant (or such other name or names as may be
directed by him, her or it) in the register of members of the Company as the holder of that number of
Ordinary Shares to which
he, she or it is entitled and (ii) issue to the registered holder of such
Warrant a certificate or certificates for such number of Ordinary Shares,
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.
Notwithstanding the foregoing, the Company shall not be obligated to deliver any
securities pursuant to the exercise of a Warrant unless a registration statement
under the Act with respect to the Ordinary Shares underlying such Warrant is
effective. Warrants may not be exercised by, or securities issued to, any
registered holder in any state in which such exercise would be
unlawful.
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 register of members
of the Company is 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
register of members is open.
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3.3.5 Warrant
Solicitation and Warrant Solicitation Fee.
(a) The Company has engaged the
Representative, on a non-exclusive basis, as its agents for the solicitation of
the exercise of the Warrants. The Company, at its cost, will (i) assist the
Representative with respect to such solicitation, if requested by the
Representative, and (ii) provide the Representative, and direct the Company’s
transfer agent and the Warrant Agent to deliver to the Representative, lists of
the record and, to the extent known, beneficial owners of the Warrants. The
Company hereby instructs the Warrant Agent to cooperate with the Representative
in every respect in connection with the Representative’s solicitation
activities, including, but not limited to, providing to the Representative, at
the Company’s cost, a list of record holders of the Warrants and circulating a
prospectus or offering circular disclosing the compensation arrangements
referenced in Section 3.3.5(b) below to holders of the Warrants at the time of
exercise of the Warrants. In addition to the conditions set forth in Section
3.3.5(b), the Representative shall accept payment of the warrant solicitation
fee provided in Section 3.3.5(b) only if they have provided bona fide services
to the Company in connection with the exercise of the Warrants and only to the
extent that an investor who exercises his Warrants specifically designates, in
writing, that the Representative solicited his exercise. In addition to
soliciting, either orally or in writing, the exercise of Warrants by a Warrant
holder, such services may also include disseminating information, either orally
or in writing, to Warrant holders about the Company or the market for the
Company’s securities, or assisting in the processing of the exercise of
Warrants.
(b) In each instance in which a Warrant is
exercised, the Warrant Agent shall promptly give written notice of such exercise
to the Company and the Representative (“Warrant Agent’s
Exercise Notice”). If, upon
the exercise of any Warrant more than one year from the effective date of the
Registration Statement, (i) the market price of the Company’s Common Stock is
greater than the Warrant Price, (ii) disclosure of compensation arrangements
between the Company and the Representative with respect to the solicitation of
the exercise of the Warrants was made both at the time of the Public Offering
and at the time of exercise (by delivery of the Prospectus or as otherwise
required by applicable law, rule or regulation), (iii) the holder of the Warrant
confirms in writing that the exercise of the Warrant was solicited by the
Representative, (iv) the Warrant was not held in a discretionary account, and
(v) the solicitation of the exercise of the Warrant was not in violation of
Regulation M (as such rule or any successor rule may be in effect as of such
time of exercise) promulgated under the Securities Exchange Act of 1934, as
amended, then the Warrant Agent, simultaneously with the distribution of the
Common Stock underlying the Warrants so exercised in accordance with the
instructions from the Company following receipt of the proceeds to the Company
received upon exercise of such Warrant(s), shall, on behalf of the Company, pay
a fee of 5% of the Warrant Price to the Representative, provided that the
Representative deliver to the Warrant Agent within ten (10) business days from
the date on which the Representative has received the Warrant Agent’s Exercise
Notice, a certificate that the conditions set forth the preceding clauses (ii),
(iii), (iv) and (v) have been satisfied. Notwithstanding the foregoing, no fee
will be paid to the Representative with respect to the exercise by the
Underwriters or their affiliates or the Company’s officers or directors of
Warrants purchased by them upon exercise of the Representative’s Warrants and
still held by any of the foregoing for their own account. The Representative and
the Company may at any time during business hours, examine the records of the
Warrant Agent, including its ledger of original Warrant certificates returned to
the Warrant Agent upon exercise of Warrants.
(c) The provisions of this Section 3.3.5.
may not be modified, amended or deleted without the prior written consent of the
Representative.
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4. Adjustments.
4.1 Share
Dividends—Split-Ups. 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 split-up of the Ordinary Shares, or other similar event, then, on the
effective date of such share dividend, split-up or similar event, the number of
Ordinary Shares issuable on exercise of each Warrant shall be increased in
proportion to such increase in the outstanding Ordinary
Shares.
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, reverse stock split or
reclassification of the Ordinary Shares or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of Ordinary Shares issuable on
exercise of each Warrant shall be decreased in proportion to such decrease in
the 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 (x) the numerator of which shall be the
number of Ordinary Shares purchasable upon the exercise of the Warrants
immediately prior to such adjustment, and (y) the denominator of which shall be
the number of Ordinary Shares so purchasable immediately
thereafter.
4.4 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 or merger
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 merger or 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, 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 the 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 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, 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 or 4.4 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.
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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 Ordinary Share to be issued to the Warrant
holder.
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 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.
5.
Transfer and
Exchange of Warrants.
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.
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, 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
acceptable to the Company stating that 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.
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6.
Redemption.
6.1 Redemption. Subject to Section
6.4 hereof, 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 $0.01 per Warrant
(“Redemption
Price”), provided that the
last sales price of the Ordinary Shares has been at least $16.00 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 (“Measurement
Period”). Notwithstanding
the foregoing, the Company may not exercise its redemption rights unless during
the Measurement Period and from the end of the Measurement Period through the
redemption date, the Company has an effective registration statement with a
current prospectus on file with the SEC pursuant to which the Ordinary Shares
underlying the Warrants may be sold.
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 is
met.
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 a shareholder 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.
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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 it
shall use its best efforts to maintain the effectiveness of the Registration
Statement until the expiration of the IPO Warrants in accordance with the
provisions of this Agreement.
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.
8.2 Resignation,
Consolidation or Merger 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 Share 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 to and 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 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
Chief Executive Officer, Chief Financial Officer or Secretary 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 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.
10
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 Ordinary Shares through the
exercise of Warrants.
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 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 (less any warrant solicitation fee due
to the Representative pursuant to Section 3.3.5 herein) in writing by the Company with the
Warrant Agent), as follows:
Xxxx
Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx
0/X
Xxxxx’ An
XingRong Center
Xx. 0
XxxXxxXxx Xxxxxx
XxXxxxx
Xxxxxxxx
Xxxxxxx,
PRC
Attn: Xxx
Xxxxx, Chairman of the Board of Directors
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 Co
00
Xxxxxxx Xxxxx, 0xx xxxxx
Xxx Xxxx
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Compliance Department
with a
copy in either case to:
Xxxxxx
& Xxxxxxx
00xx
Xxxxx
Xxx
Xxxxxxxx Xxxxxx
0
Xxxxxxxxx Xxxxx, Xxxxxxx
Xxxx
Xxxx
Attn:
Xxxxx X. Xxxxx, Esq.
11
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 3.3.5, 6.1, 6.4, 7.4 and 9.2 hereof, the Representative,
any right, remedy, or claim under or by reason of this Warrant Agreement or of
any covenant, condition, stipulation, promise, or agreement hereof. The
Representative shall be deemed to be a third-party beneficiary of this Agreement
with respect to Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2 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 Representative with respect to the Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2
hereof) and their successors and assigns and of the registered holders of the
Warrants.
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 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.
[Signature Page
Follows]
12
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
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PYPO
CHINA HOLDINGS LIMITED
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name:
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Xxxxx X. Xxxxxxxx
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Title:
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Secretary
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CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
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By:
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/s/Xxxxxxxxx Xxxxxxxx
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Name:
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Xxxxxxxxx Xxxxxxxx
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Title:
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Vice
President
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EXHIBIT
A
FORM OF CLASS B WARRANT
CERTIFICATE
