WARRANT
EXHIBIT
4.1
WARRANT
NEITHER
THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES
ACT”).
THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT
BE
OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
THE
SECURITIES ACT OR UNLESS SUCH OFFER, SALE OR TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
WEST
COAST CAR COMPANY
COMMON
STOCK WARRANT
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May
15, 2007
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WEST
COAST CAR COMPANY,
a
Delaware corporation (the “Company”),
hereby certifies that __________________, its permissible transferees,
designees, successors and assigns (collectively, the “Holder”), for value
received, is entitled to purchase from the Company at any time commencing on
the
effective date (the “Effective Date”), and terminating on the fifth anniversary
of the date of issuance of this Warrant (the “Termination Date”)
__________shares (each, a “Share” and collectively the “Shares”) of the
Company’s common stock, $.001 par value per Share (the “Common Stock”), at an
exercise price $2.60 per Share (the “Exercise Price”). The number of Shares
purchasable hereunder and the Exercise Price are subject to adjustment as
provided in Section 4 hereof.
1.
Exercise
of Warrant.
The
purchase right represented by this Common Stock Warrant (this "Warrant") is
exercisable, in whole or in part, at any time and from time to time from and
after the Effective Date through and including the Termination
Date.
Upon
presentation and surrender of this Warrant, accompanied by a completed Election
to Purchase in the form attached hereto as Exhibit
A
(the
“Election
to Purchase”)
duly
executed, at the principal office of the Company currently located at 00 Xxx
Xxxxxxxxx Xxxxx, Xxxx 0, Xxxx Xxxxxxx, XX 00000 (or such other office or agency
of the Company as the Company may designate to the Holder) together with a
check
payable to, or wire transfer to, the Company in the amount of the Exercise
Price
multiplied by the number of Shares being purchased, the Company or the Company’s
transfer agent, as the case may be, shall within three (3) business days deliver
to the Holder hereof certificates of fully paid and non-assessable Common Stock
which in the aggregate represent the number of Shares being purchased. The
certificates so delivered shall be in such denominations as may be requested
by
the Holder and shall be registered in the name of the Holder or such other
name
as shall be designated by the Holder. All or less than all of the purchase
rights represented by this Warrant may be exercised and, in case of the exercise
of less than all, the Company, upon surrender hereof, will at the Company’s
expense deliver to the Holder a new warrant entitling said holder to purchase
the number of Shares represented by this Warrant which have not been exercised.
This Warrant may only be exercised to the extent the Company has a sufficient
number of Shares of Common Stock available for issuance at the time of any
exercise.
2.
Warrant.
(a) Exchange,
Transfer and Replacement.
At any
time prior to the exercise hereof, this Warrant may be exchanged upon
presentation and surrender to the Company, alone or with other warrants of
like
tenor of different denominations registered in the name of the same Holder,
for
another warrant or warrants of like tenor in the name of such Holder exercisable
for the aggregate number of Shares as the warrant or warrants
surrendered.
(b) Replacement
of Warrant.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company, at
its
expense, will execute and deliver in lieu thereof, a new Warrant of like
tenor.
Cancellation;
Payment of Expenses.
Upon
the surrender of this Warrant in connection with any transfer, exchange or
replacement as provided in this Section 2, this Warrant shall be promptly
canceled by the Company. The Holder shall pay all taxes and all other expenses
(including legal expenses, if any, incurred by the Holder or transferees) and
charges payable in connection with the preparation, execution and delivery
of
Warrants pursuant to this Section 2.
Warrant
Register.
The
Company shall maintain, at its principal executive offices (or at the offices
of
the transfer agent for the Warrant or such other office or agency of the Company
as it may designate by notice to the holder hereof), a register for this Warrant
(the “Warrant Register”), in which the Company shall record the name and address
of the person in whose name this Warrant has been issued, as well as the name
and address of each transferee and each prior owner of this
Warrant.
3.
Rights
and Obligations of Holders of this Warrant.
The
Holder of this Warrant shall not, by virtue hereof, be entitled to any rights
of
a stockholder in the Company, either at law or in equity; provided,
however,
that in
the event any certificate representing shares of Common Stock or other
securities is issued to the holder hereof upon exercise of this Warrant, such
holder shall, for all purposes, be deemed to have become the holder of record
of
such Common Stock on the date on which this Warrant, together with a duly
executed Election to Purchase, was surrendered and payment of the aggregate
Exercise Price was made, irrespective of the date of delivery of such Common
Stock certificate.
4.
Adjustments.
(a) Stock
Dividends, Reclassifications, Recapitalizations, Etc.
In the
event that after the Effective Date the Company: (i) pays a dividend in
Common Stock or makes a distribution in Common Stock, (ii) subdivides its
outstanding Common Stock into a greater number of shares, (iii) combines
its outstanding Common Stock into a smaller number of shares or
(iv) increases or decreases the number of shares of Common Stock
outstanding by reclassification of its Common Stock (including a
recapitalization in connection with a consolidation or merger in which the
Company is the continuing corporation), then (1) the Exercise Price on the
record date of such division or distribution or the effective date of such
action shall be adjusted by multiplying such Exercise Price by a fraction,
the
numerator of which is the number of shares of Common Stock outstanding
immediately before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event, and
(2) the number of shares of Common Stock for which this Warrant may be
exercised immediately before such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the Exercise Price immediately
before such event and the denominator of which is the Exercise Price immediately
after such event.
(b) Cash
Dividends and Other Distributions.
In the
event that at any time or from time to time the Company shall distribute to
all
holders of Common Stock (i) any dividend or other distribution of cash,
evidences of its indebtedness, shares of its capital stock or any other
properties or securities or (ii) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than in each case,
(w) the issuance of any rights under a shareholder rights plan,
(x) any dividend or distribution described in Section 4(a), (y) any
rights, options, warrants or securities described in Section 4(c) and (z) any
cash dividends or other cash distributions from current or retained earnings),
then the number of shares of Common Stock issuable upon the exercise of this
Warrant shall be increased to a number determined by multiplying the number
of
shares of Common Stock issuable upon the exercise of this Warrant immediately
prior to the record date for any such dividend or distribution by a fraction,
the numerator of which shall be such Current Market Value (as hereinafter
defined) per share of Common Stock on the record date for such dividend or
distribution, and the denominator of which shall be such Current Market Value
per share of Common Stock on the record date for such dividend or distribution
less the sum of (x) the amount of cash, if any, distributed per share of Common
Stock and (y) the fair value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be evidenced by a board
resolution, a copy of which will be sent to the Holders upon request) of the
portion, if any, of the distribution applicable to one share of Common Stock
consisting of evidences of indebtedness, shares of stock, securities, other
property, warrants, options or subscription or purchase rights; and the Exercise
Price shall be adjusted to a number determined by dividing the Exercise Price
immediately prior to such record date by the above fraction. Such adjustments
shall be made whenever any distribution is made and shall become effective
as of
the date of distribution, retroactive to the record date for any such
distribution. No adjustment shall be made pursuant to this Section 4(b) which
shall have the effect of decreasing the number of shares of Common Stock
issuable upon exercise of this Warrant or increasing the Exercise Price.
(c) Combination;
Liquidation.
(i) In the event of a Combination (as defined below), each Holder shall
have the right to receive upon exercise of the Warrant the kind and amount
of
shares of capital stock or other securities or property which such Holder would
have been entitled to receive upon or as a result of such Combination had such
Warrant been exercised immediately prior to such event (subject to further
adjustment in accordance with the terms hereof). Unless paragraph (ii) is
applicable to a Combination, the Company shall provide that the surviving or
acquiring Person (the “Successor Company”) in such Combination will assume by
written instrument the obligations under this Section 4 and the obligations
to deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to acquire.
“Combination” means an event in which the Company consolidates with, mergers
with or into, or sells all or substantially all of its assets to another Person,
where “Person” means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity; (ii) In the event of (x) a Combination where
consideration to the holders of Common Stock in exchange for their shares is
payable solely in cash or (y) the dissolution, liquidation or winding-up of
the
Company, the Holders shall be entitled to receive, upon surrender of their
Warrant, distributions on an equal basis with the holders of Common Stock or
other securities issuable upon exercise of the Warrant, as if the Warrant had
been exercised immediately prior to such event, less the Exercise Price. In
case
of any Combination described in this Section 4, the surviving or acquiring
Person and, in the event of any dissolution, liquidation or winding-up of the
Company, the Company, shall deposit promptly with an agent or trustee for the
benefit of the Holders of the funds, if any, necessary to pay to the Holders
the
amounts to which they are entitled as described above. After such funds and
the
surrendered Warrant are received, the Company is required to deliver a check
in
such amount as is appropriate (or, in the case or consideration other than
cash,
such other consideration as is appropriate) to such Person or Persons as it
may
be directed in writing by the Holders surrendering such Warrant.
a. Notice
of Adjustment.
Whenever the Exercise Price or the number of shares of Common Stock and other
property, if any, issuable upon exercise of the Warrant is adjusted, as herein
provided, the Company shall deliver to the holders of the Warrant in accordance
with Section 10 a certificate of the Company’s Chief Financial Officer
setting forth, in reasonable detail, the event requiring the adjustment and
the
method by which such adjustment was calculated (including a description of
the
basis on which (i) the Board of Directors determined the fair value of any
evidences of indebtedness, other securities or property or warrants, options
or
other subscription or purchase rights and (ii) the Current Market Value of
the
Common Stock was determined, if either of such determinations were required),
and specifying the Exercise Price and number of shares of Common Stock issuable
upon exercise of Warrant after giving effect to such adjustment.
Notice
of Certain Transactions.
In the
event that the Company shall propose (a) to pay any dividend payable in
securities of any class to the holders of its Common Stock or to make any other
non-cash dividend or distribution to the holders of its Common Stock,
(b) to 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, (c) to
effect any capital reorganization, reclassification, consolidation or merger
affecting the class of Common Stock, as a whole, or (d) to effect the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
the Company shall, within the time limits specified below, send to each Holder
a
notice of such proposed action or offer. Such notice shall be mailed to the
Holders at their addresses as they appear in the Warrant Register (as defined
in
Section 2(d)),
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 Exercise Price after giving
effect to any adjustment pursuant to Section 4 which will be required as a
result of such action. Such notice shall be given as promptly as possible and
(x) in the case of any action covered by clause (a) or (b) above, at least
ten
(10) days prior to the record date for determining holders of the Common Stock
for purposes of such action or (y) in the case of any other such action, at
least twenty (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.
b. Current
Market Value.“Current
Market Value” per share of Common Stock or any other security at any date means
(i) if the security is not registered under the Securities Exchange Act of
1934
and/or traded on a national securities exchange, quotation system or bulletin
board, as amended (the “Exchange Act”), (a) the value of the security,
determined in good faith by the Board of Directors of the Company and certified
in a board resolution, based on the most recently completed arm’s-length
transaction between the Company and a Person other than an affiliate of the
Company or between any two such Persons and the closing of which occurs on
such
date or shall have occurred within the six-month period preceding such date,
or
(b) if no such transaction shall have occurred within the six-month period,
the
value of the security as determined by an independent financial expert or an
agreed upon financial valuation model or (ii) if the security is registered
under the Exchange Act and/or traded on a national securities exchange,
quotation system or bulletin board, the average of the daily closing bid prices
(or the equivalent in an over-the-counter market) for each day on which the
Common Stock is traded for any period on the principal securities exchange
or
other securities market on which the common Stock is being traded (each, a
“Trading Day”) during the period commencing thirty (30) days before such date
and ending on the date one day prior to such date.
5. Fractional
Shares.
In lieu
of issuance of a fractional share upon any exercise hereunder, the Company
will
pay the cash value of that fractional share, calculated on the basis of the
Exercise Price.
6. Legends.
Prior
to issuance of the shares of Common Stock underlying this Warrant, all such
certificates representing such shares shall bear a restrictive legend to the
effect that the Shares represented by such certificate have not been registered
under the 1933 Act, and that the Shares may not be sold or transferred in the
absence of such registration or an exemption therefrom, such legend to be
substantially in the form of the bold-face language appearing at the top of
Page
1 of this Warrant.
7. Call
Rights.
The
Company shall have the right to call the
exercise of all, or the
remaining portion of this Warrant outstanding and unexercised
at the
Exercise
Price in the event (i) the Volume Weighted Average Price (“VWAP”) of
the
Company’s Common Stock equals or exceeds $8.00 per share during any twenty
(20) consecutive trading days and (ii) all Shares for which this Warrant
is
exercisable are registered for resale by the Holder (the “Call Conditions”).
For
the
purposes of this Warrant, the VWAP shall be the volume weighted average
price reported by Bloomberg for the Common Stock. Within ten (10) business
days of the Call Conditions, the Company shall deliver a notice to each
registered
Holder of the Warrants setting for the number of Warrants held and the
dollar amount due to exercise the Warrants (the “Call Notice”). Each
Holder
shall have thirty (30) calendar days from the receipt of the Call Notice to
exercise
the remaining balance of the Warrant (the “Call Period”). Upon the expiration
of the Call Period, any unexercised Warrant shall automatically expire.
8.
Disposition
of Warrants or Shares.
The
Holder of this Warrant, each transferee hereof and any holder and transferee
of
any Shares, by his or its acceptance thereof, agrees that no public distribution
of Warrants or Shares will be made in violation of the provisions of the
Securities Act of 1933, as amended. Furthermore, it shall be a condition to
the
transfer of this Warrant that any transferee thereof deliver to the Company
his
or its written agreement to accept and be bound by all of the terms and
conditions contained in this Warrant.
9. Merger
or Consolidation.
The
Company will not merge or consolidate with or into any other corporation, or
sell or otherwise transfer its property, assets and business substantially
as an
entirety to another corporation, unless the corporation resulting from such
merger or consolidation (if not the Company), or such transferee corporation,
as
the case may be, shall expressly assume, by supplemental agreement reasonably
satisfactory in form and substance to the Holder, the due and punctual
performance and observance of each and every covenant and condition of this
Warrant to be performed and observed by the Company.
10. Notices.
Except
as otherwise specified herein to the contrary, all notices, requests, demands
and other communications required or desired to be given hereunder shall only
be
effective if given in writing by certified or registered U.S. mail with return
receipt requested and postage prepaid; by private overnight delivery service
(e.g. Federal Express); by facsimile transmission (if no original documents
or
instruments must accompany the notice); or by personal delivery. Any such notice
shall be deemed to have been given (a) on the business day immediately following
the mailing thereof, if mailed by certified or registered U.S. mail as specified
above; (b) on the business day immediately following deposit with a private
overnight delivery service if sent by said service; (c) upon receipt of
confirmation of transmission if sent by facsimile transmission; or (d) upon
personal delivery of the notice. All such notices shall be sent to the following
addresses (or to such other address or addresses as a party may have advised
the
other in the manner provided in this Section 10):
If
to the Company:
West
Coast Car Company
00
Xxx
Xxxxxxxxx Xxxxx, Xxxx #0, Xxxx Xxxxxxx, XX 00000
Attention:
Xxxxx Du
Facsimile:
(000) 000 0000
If
to the Holder:
Notwithstanding
the time of effectiveness of notices set forth in this Section, an Election
to
Purchase shall not be deemed effectively given until it has been duly completed
and submitted to the Company together with this original Warrant and payment
of
the Exercise Price in a manner set forth in this Section.
11. Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed in the State
of Delaware.
12. Successors
and Assigns.
This
Warrant shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
13. Headings.
The
headings of various sections of this Warrant have been inserted for reference
only and shall not affect the meaning or construction of any of the provisions
hereof.
14. Severability.
If any
provision of this Warrant is held to be unenforceable under applicable law,
such
provision shall be excluded from this Warrant, and the balance hereof shall
be
interpreted as if such provision were so excluded.
15. Modification
and Waiver.
This
Warrant and any provision hereof may be amended, waived, discharged or
terminated only by an instrument in writing signed by the Company and the
Holder.
16. Specific
Enforcement.
The
Company and the Holder acknowledge and agree that irreparable damage would
occur
in the event that any of the provisions of this Warrant were not performed
in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Warrant and
to
enforce specifically the terms and provisions hereof, this being in addition
to
any other remedy to which either of them may be entitled by law or
equity.
17. Assignment.
Subject
to prior written approval by the Company, this Warrant may be transferred or
assigned, in whole or in part, at any time and from time to time by the then
Holder by submitting this Warrant to the Company together with a duly executed
Assignment in substantially the form and substance of the Form of Assignment
which accompanies this Warrant, as Exhibit B hereto, and, upon the
Company’s receipt hereof, and in any event, within three (3) business days
thereafter, the Company shall issue a warrant to the Holder to evidence that
portion of this Warrant, if any as shall not have been so transferred or
assigned.
(signature
page immediately follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed,
manually or by facsimile, by one of its officers thereunto duly
authorized.
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WEST
COAST CAR COMPANY
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Date:
__________, 2007
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By: | |
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Name: Qingtai
Liu
Title: President
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