SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
AGREEMENT entered into as of the 17th day of June, 2009, by and
between
Asia Select Acquisition III Corp., a Delaware corporation with an
address at 300-1055 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx X.X. X0X 0X0 Xxxxxx (the
“Company”) and [NAME OF
PURCHASER] (the “Purchaser”).
WHEREAS,
the Purchaser desires to purchase, and the Company desires to sell securities
consisting of (a) an aggregate of [NUMBER OF SHARES] shares (the
“Shares”) of
the Company’s common stock, par value $0.0001 per share (the “Common Stock”) and
(b) a warrant, in the form attached hereto as Exhibit A (the “Warrant”), to
purchase [NUMBER OF
SHARES] shares of the Company’s Common Stock (the Shares and the Warrant,
collectively, the “Securities”), upon
the terms and conditions hereof.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the Purchaser and the Company hereby agree as follows:
SECTION
1: SALE OF THE SECURITIES
1.1 Sale of the
Securities. Subject to the terms and conditions hereof, the
Company will sell and deliver to the Purchaser and the Purchaser will purchase
from the Company, upon the execution and delivery hereof, the Securities for an
aggregate purchase price equal to [$ PURCHASE PRICE].
1.2 Shares Repurchase
Option. In the event the Board of Directors of the Company
approves (a) the consummation of a merger or other business combination with an
operating business or (b) a transaction pursuant to which the Company ceases to
be a “shell company,” as defined by Rule 12b-2 under the Securities Exchange Act
of 1934, as amended and a “blank check company,” as defined by Rule 419 of the
Securities Act of 1933, as amended, (the “Securities Act”), or
if any shareholder (the “Selling Shareholder”)
agrees to allow the Company to repurchase its Shares, the Company shall have the
option to repurchase the Shares held by the shareholders on a pro rata basis and
on the same terms and conditions as the Selling Shareholders (the “Share Repurchase
Option”). The Company may, pursuant to this Section 1.2,
repurchase up to an aggregate of ninety-three and one-third percent (93.33%) of
the Shares owned by the shareholders. Any Shares repurchased by the
Company pursuant to the Share Repurchase Option will be cancelled.
1.3 Warrant Repurchase
Option. In the event the Board of Directors of the Company
approves (a) the consummation of a merger or other business combination with an
operating business or (b) a transaction pursuant to which the Company ceases to
be a “shell company,” as defined by Rule 12b-2 under the Securities Exchange Act
of 1934, as amended and a “blank check company,” as defined by Rule 419 of the
Securities Act, or if any warrantholder (the “Selling Warrantholder”),
agrees to allow the Company to repurchase its Warrant, the Company shall have
the option to repurchase the Warrants held by the warrantholders on the same
terms and conditions as the Selling Warrantholder (the “Warrant Repurchase
Option”). Any Warrants repurchased by the Company
pursuant to the Warrant Repurchase Option will be cancelled.
SECTION
2: CLOSING DATE; DELIVERY
2.1 Closing
Date. The closing of the purchase and sale of the Securities
hereunder (the “Closing”) shall be
held immediately following the execution and delivery of this
Agreement.
2.2 Delivery at Closing.
At the Closing, the Company will deliver to the Purchaser a stock certificate,
representing the number of Shares to be purchased by Purchaser hereunder and a
Warrant registered in the Purchaser’s name or the name of any designee of the
Purchaser, against payment of the purchase price therefore as indicated
above.
SECTION
3: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The
undersigned Purchaser hereby represents and warrants to the Company as
follows:
3.1 Transfer of
Securities. Neither the Securities nor the shares of Common
Stock underlying the Warrants (the “Warrant Shares”) have
been registered under the Securities Act, or any state securities laws, and will
be issued upon certain exemptions from the registration requirements of those
laws, including Regulation S, and cannot be sold or otherwise transferred
without an effective registration or an exemption therefrom, but may not be sold
pursuant to the exemptions provided by Section 4(1) of the Securities Act in
accordance with the letter from Xxxxxxx X. Xxxxx, Chief of the Office of Small
Business Policy of the Securities and Exchange Commission’s Division of
Corporation Finance, to Xxx Worm of NASD Regulation, Inc., dated January 21,
2000. Purchaser agrees that it will not resell the Securities unless
such resale transaction is in accordance with Regulation S and/or Rule 144 under
the Securities Act, pursuant to registration under the Securities Act, or
pursuant to an available exemption from registration.
3.2 Experience. The
undersigned has such knowledge and experience in financial and business matters
that the undersigned is capable of evaluating the merits and risks of investment
in the Company and of making an informed investment decision. The
undersigned has adequate means of providing for the undersigned's current needs
and possible future contingencies and the undersigned has no need, and
anticipates no need in the foreseeable future, to sell the Securities for which
the undersigned subscribes. The undersigned is able to bear the
economic risks of this investment and, consequently, without limiting the
generality of the foregoing, the undersigned is able to hold the Securities for
an indefinite period of time and has sufficient net worth to sustain a loss of
the undersigned's entire investment in the Company in the event such loss should
occur. Except as otherwise indicated herein, the undersigned is the sole party
in interest as to its investment in the Company, and it is acquiring the
Securities solely for investment for the undersigned's own account and has no
present agreement, understanding or arrangement to subdivide, sell, assign,
transfer or otherwise dispose of all or any part of the Securities subscribed
for to any other person.
3.3 Investment; Access to
Data. The undersigned has carefully reviewed and understands
the risks of, and other considerations relating to, a purchase of the Securities
and an investment in the Company. The undersigned has been furnished materials
relating to the Company, the private placement of the Securities or anything
else that it has requested and has been afforded the opportunity to ask
questions and receive answers concerning the terms and conditions of the
offering and obtain any additional information which the Company possesses or
can acquire without unreasonable effort or expense. Representatives
of the Company have answered all inquiries that the undersigned has made of them
concerning the Company, or any other matters relating to the formation and
operation of the Company and the offering and sale of the Securities.The
undersigned has not been furnished any offering literature other than the
materials that the Company may have provided at the request of the undersigned;
and the undersigned has relied only on such information furnished or made
available to the undersigned by the Company as described in this Section. The
undersigned is acquiring the Securities for investment for the undersigned's own
account, not as a nominee or agent and not with the view to, or for resale in
connection with, any distribution thereof. The undersigned
acknowledges that the Company is a start-up company with no current operations,
assets or operating history, which may possibly cause a loss of Purchaser’s
entire investment in the Company.
3.4 Authorization.
(a)
This Agreement, upon execution and delivery thereof, will be a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally.
(b) The
execution, delivery and performance by Purchaser of this Agreement and
compliance therewith and the purchase and sale of the Securities will not result
in a violation of and will not conflict with, or result in a breach of, any of
the terms of, or constitute a default under, any provision of state or Federal
law to which Purchaser is subject, or any mortgage, indenture, agreement,
instrument, judgment, decree, order, rule or regulation or other restriction to
which the Purchaser is a party or by which the undersigned Purchaser is bound,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Purchaser pursuant to any such
term.
3.5 Accredited
Investor. Purchaser is an accredited investor as defined in
Rule 501(a) of Regulation D under the Securities Act and has completed and
executed the statement of accredited investor annexed hereto as Exhibit B, or is not
a “U.S. Person” as that person is defined under Rule 902(k) of Regulation S
under the Securities Act and has executed the Regulation S compliance
certification annexed hereto as Exhibit
C.
SECTION
4: MISCELLANEOUS
4.1 Governing
Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware, without regard to conflicts of laws principles
thereof.
4.2 Survival. The
terms, conditions and agreements made herein shall survive the
Closing.
4.3 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
4.4 Entire Agreement; Amendment;
Waiver. This Agreement constitutes the entire and full
understanding and agreement between the parties with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by all the parties hereto.
4.5
Counterparts. This
Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together, shall constitute one
instrument.
4.6
Severability. Wherever
possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
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remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the
undersigned have hereunto set their hands as of the day and year first above
written.
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By:
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/s/
Min Xxxxx
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Min
Xxxxx
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President
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PURCHASER
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[NAME OF
PURCHASER]
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Exhibit
A
THESE
SECURITIES AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND STATE LAW BY
VIRTUE OF THE COMPANY’S INTENDED COMPLIANCE WITH THE PROVISIONS OF REGULATION S
PROMULGATED UNDER THE SECURITIES ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
REGULATION S AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT AND/OR IS NOT A “U.S. PERSON” AS THAT TERM IS DEFINED
UNDER RULE 902(k) OF REGULATION S UNDER THE SECURITIES ACT.
COMMON
STOCK PURCHASE WARRANT
To
Purchase [NUMBER OF
SHARES] Shares of Common Stock of
THIS
COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value
received, [NAME OF HOLDER] (the “Holder”), is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the date that is 61
days following the filing of a Form 8-K under Item(s) 1.01 and 5.01 of Form 8-K,
following a merger or other business combination with an operating business or
any other event pursuant to which Asia Select Acquisition III Corp., a Delaware
corporation (the “Company”) ceases to
be a “shell company” as defined by Rule 12b-2 under the Securities Exchange Act
of 1934, as amended and a “blank check company,” as defined by Rule 419 of the
Securities Act of 1933, as amended (the “Initial Exercise
Date”) and on or prior to the close of business on the earlier of (i) ten
years from the date hereof or (ii) five years from the Initial Exercise Date
(the “Termination
Date”) but not thereafter, to subscribe for and purchase from the
Company, up to [NUMBER OF
SHARES] shares (the “Warrant Shares”) of
the Company’s common stock, par value $.0001 per share (the “Common
Stock”). The purchase price of one share of Common Stock (the
“Exercise
Price”) under this Warrant shall be $1.00, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for
which the Warrant is exercisable shall be subject to adjustment as provided
herein.
1. Title to
Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 8 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in
form and substance reasonably satisfactory to the Company.
2. Repurchase
Option. In the event the Board of Directors of the Company
approves (a) the consummation of a merger or other business combination with an
operating business or (b) a transaction pursuant to which the Company ceases to
be a “shell company,” as defined by Rule 12b-2 under the Securities Exchange Act
of 1934, as amended and a “blank check company,” as defined by Rule 419 of the
Securities Act of 1933, as amended, or if any warrantholder (the “Selling
Warrantholder”), agrees to allow the Company to repurchase its Warrant,
the Company shall have the option to repurchase the Warrants held by the
warrantholders on the same terms and conditions as the Selling Warrantholder
(the “Warrant
Repurchase Option”). Any Warrants repurchased by the
Company pursuant to the Warrant Repurchase Option will be
cancelled.
3. Authorization of
Shares. The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant,
be duly authorized, validly issued, fully paid and nonassessable and free from
all taxes, liens and charges in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such
issue).
4. Exercise of
Warrant.
(a) Except
as provided in Section 5 herein, exercise of the purchase rights represented by
this Warrant may be made at any time or times on or after the Initial Exercise
Date and on or before the Termination Date by the surrender of this Warrant and
the Notice of Exercise Form annexed hereto duly executed, at the office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of such Holder
appearing on the books of the Company). Upon payment of the Exercise
Price of the Warrant Shares thereby purchased by wire transfer or cashier’s
check drawn on a United States bank, the Holder shall be entitled to receive a
certificate for the number of Warrant Shares so
purchased. Certificates for Warrant Shares purchased hereunder shall
be delivered to the Holder within five (5) business days after the date on which
this Warrant shall have been exercised as aforesaid. This Warrant shall be
deemed to have been exercised and such certificate or certificates shall be
deemed to have been issued, and Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such Warrant
Shares for all purposes, as of the date the Warrant has been exercised by
payment to the Company of the Exercise Price and all taxes required to be paid
by the Holder, if any, pursuant to Section 5 prior to the issuance of such
shares, have been paid. If the Company fails to deliver to the Holder
a certificate or certificates representing the Warrant Shares pursuant to this
Section 4(a) by the fifth business day after the date of exercise, then the
Holder will have the right to rescind such exercise by written notice to the
Company.
(b) If
this Warrant shall have been exercised in part, the Company shall, at the time
of delivery of the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
(c) This
Warrant may also be exercised, in whole or in part, at any time prior to the
Termination Date, so long as there is a public trading market for the Company’s
Common Stock, by means of a “cashless exercise” in which the Holder shall be
entitled to receive a certificate for the number of Warrant Shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
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=
the closing bid price on the trading day preceding the date of such
election;
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(B)
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=
the Exercise Price of the Warrants, as adjusted;
and
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(X)
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=
the number of Warrant Shares issuable upon exercise of the Warrants in
accordance with the terms of this
Warrant.
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5.
No
Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise
be entitled to purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to such fraction
multiplied by the Exercise Price.
6.
Charges, Taxes and
Expenses. Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company, and such certificates shall be
issued in the name of the Holder or in such name or names as may be directed by
the Holder; provided, however, that in the event certificates for Warrant Shares
are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
7.
Closing of
Books. The Company will not close its stockholder books or
records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
8. Transfer, Division and
Combination.
(a)
Subject to compliance with any applicable securities laws and the conditions set
forth in Sections 1 and 8(e) hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder or
its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. A Warrant, if properly
assigned, may be exercised by a new holder for the purchase of Warrant Shares
without having a new Warrant issued.
(b) This
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance
with Section 8(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c) The
Company shall prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this Section 8.
(d) The
Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants.
(e) If,
at the time of the surrender of this Warrant in connection with any transfer of
this Warrant, the transfer of this Warrant shall not be registered pursuant to
an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws, the Company may require, as a
condition of allowing such transfer, (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion of counsel
reasonably acceptable to the Company (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the Securities
Act and under applicable state securities or blue sky laws and (ii) that the
holder or transferee execute and
deliver
to the Company an investment letter in form and substance acceptable to the
Company.
9. No Rights as Shareholder
until Exercise. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to the
exercise hereof. Upon the surrender of this Warrant and the payment
of the aggregate Exercise Price, the Warrant Shares so purchased shall be and be
deemed to be issued to such Holder as the record owner of such shares as of the
close of business on the later of the date of such surrender or
payment.
10. Loss, Theft, Destruction or
Mutilation of Warrant. The Company covenants that upon receipt
by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant, shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.
11. Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall be a
Saturday, Sunday or a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
12. Adjustments of Exercise
Price and Number of Warrant Shares. The number and kind of
securities purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of any of
the following. In case the Company shall (i) pay a dividend in shares
of Common Stock or make a distribution in shares of Common Stock to holders of
its outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock into a greater number of shares, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock, then in
each such case the number of Warrant Shares purchasable upon exercise of this
Warrant immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company which it would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment
of the kind and number of Warrant Shares or other securities of the Company
which are purchasable hereunder, the Holder shall thereafter be entitled to
purchase the number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of Warrant Shares purchasable pursuant hereto immediately prior to
such adjustment and dividing by the number of Warrant Shares or other securities
of the Company resulting from such adjustment. An adjustment made
pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
13. Reorganization,
Reclassification, Merger, Consolidation or Disposition of
Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation (“Other
Property”), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder shall have the right thereafter to receive, at
the option of the Holder, upon exercise of this Warrant, the number of shares of
Common Stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property receivable upon or as a result
of such reorganization, reclassification, merger, consolidation or disposition
of assets by a Holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event. In case of
any such reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than the Company)
shall expressly assume the due and punctual observance and performance of each
and every covenant and condition of this Warrant to be performed and observed by
the Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of Warrant Shares for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments provided for in this
Section 13. For purposes of this Section 13, “common stock of the
successor or acquiring corporation” shall include stock of such corporation of
any class which is not preferred as to dividends or assets over any other class
of stock of such corporation and which is not subject to redemption and shall
also include any evidences of indebtedness, shares of stock or other securities
which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 13 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
14. Voluntary Adjustment by the
Company. The Company may at any time during the term of this
Warrant reduce the then current Exercise Price to any amount and for any period
of time deemed appropriate by the Board of Directors of the
Company.
15. Notice of
Adjustment. Whenever the number of Warrant Shares or number or
kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted, as herein provided, the Company shall
give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
16. Notice of Corporate
Action. If at any time:
(a) the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend or other distribution, or any right to
subscribe for or purchase any evidences of its indebtedness, any shares of stock
of any class or any other securities or property, or to receive any other right,
or
(b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
corporation or,
(c) there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company; then, in any one or more of such cases (but not in such cases if
the rights of the Holder or holders of Common Stock will not be materially
affected thereby, as for example in the case of a merger to effect a change of
domicile), the Company shall give to Holder (i) at least 5 business days’ prior
notice of the date on which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 5 business days’
prior notice of the date when the same shall take place. Such notice
in accordance with the foregoing clause also shall specify (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be entitled to any
such dividend, distribution or right, and the amount and character thereof, and
(ii) the date on which any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up is to take place and the time, if any such time is to be fixed, as of which
the holders of Common Stock shall be entitled to exchange their Warrant Shares
for securities or other property deliverable upon such disposition, dissolution,
liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of Holder
appearing on the books of the Company and delivered in accordance with Section
18(d).
17. Authorized
Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this
Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of the trading market upon which the Common Stock may be
listed.
Except
and to the extent as waived or consented to by the Holder, the Company shall not
by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of Holder as set forth in this Warrant against
impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in
par value, (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this
Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
18.
Miscellaneous.
(a) Jurisdiction. This
Warrant shall constitute a contract under the laws of Delaware, without regard
to its conflicts of laws principles or rules.
(b) Restrictions. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this
Warrant, if not registered, will have restrictions upon resale imposed by state
and federal securities laws.
(c) Nonwaiver and
Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of
such right or otherwise prejudice Holder’s rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination
Date. If the Company willfully and knowingly fails to comply with any
provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its rights, powers
or remedies hereunder.
(d) Notices. Any
notice, request or other document required or permitted to be given or delivered
pursuant to this Warrant shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand or by telecopy that has been
confirmed as received by 5:00 P.M. on a business day, one (1) business day after
being sent by nationally recognized overnight courier or received by telecopy
after 5:00 P.M. on any day, or five (5) business days after being sent by
certified or registered mail, postage and charges prepaid, return receipt
requested, to the following addresses:
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If
to the Company:
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000-0000
Xxxx Xxxxxxxx Xxxxxx
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Xxxxxxxxx
X.X. X0X 0X0 Xxxxxx
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Attn:
Min Xxxxx, President
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If
to the Holder:
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At
the Holder’s address in the Company’s Warrant
register.
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(e) Limitation of
Liability. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant or purchase Warrant
Shares, and no enumeration herein of the rights or privileges of Holder, shall
give rise to any liability of Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(f) Remedies. Holder,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Warrant. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Warrant and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be
adequate.
(g) Successors and
Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of
and be binding upon the successors of the Company and the successors and
permitted assigns of Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant
and shall be enforceable by any such Holder or holder of Warrant
Shares.
(h) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Holder and the Company.
(i) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Warrant.
(j) Headings. The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
[The
remainder of this page has been intentionally left blank.]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
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Dated: June
17, 2009
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By:
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/s/
Min Xxxxx
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Min
Xxxxx
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President
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NOTICE
OF EXERCISE
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of Asia Select
Acquisition III Corp. pursuant to the terms of the attached Warrant, and tenders
herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said Warrant Shares in the name
of the undersigned or in such other name as is specified below:
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Name:
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_______________________________
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Address:
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_______________________________
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_______________________________
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SS:
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_______________________________
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The
Warrant Shares shall be delivered to the following:
_______________________________
_______________________________
_______________________________
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By:
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[Name
of Holder]
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Dated:
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ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form
and supply required information.
Do not
use this form to exercise the warrant.)
FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated: ______________,
_______
Holder's
Signature: _____________________________
Holder's
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
Exhibit
B
STATEMENT
OF ACCREDITED INVESTOR
To: ASIA
SELECT ACQUISITION III CORP. (the “Company”)
Ladies
and Gentlemen:
The
undersigned hereby refers to the Securities Purchase Agreement executed and
delivered to the Company by the undersigned as of the date hereof. In
connection with the subscription thereunder by the undersigned to purchase
securities of the Company, the undersigned hereby represents and warrants that
such individual or entity meets at least one of the tests listed below for an
"accredited investor" (as such term is defined under Regulation D promulgated
pursuant to the Securities Act of 1933, as amended).
"Accredited Investors" are accorded
special status under the federal securities laws. Individuals who hold certain
positions with an issuer or its affiliates, or who have certain minimum
individual income or certain minimum net worth (each as described below) may
qualify as Accredited Investors. Partnerships, corporations or other
entities may qualify as Accredited Investors if they fulfill certain financial
and other standards, or if all of their equity owners have incomes and/or net
worth which qualify them individually as Accredited Investors, and trusts may
qualify as Accredited Investors if they meet certain financial and other tests
(as described below).
You may
qualify as an Accredited Investor under Regulation D promulgated under the
Securities Act of 1933 (the "1933 Act") if you meet any of the following tests
(please check all that apply):
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□
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The undersigned is an
individual who is a director or executive officer of the
Company. An “executive officer” is the president, a vice
president in charge of a principal business unit, division or function
(such as sales, administration or finance), any other officer who performs
a policy making function or any other person who performs similar policy
making functions for the Company.
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□
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The undersigned is an
individual that (1) had individual income of more than $200,000 in each of
the two most recent fiscal years and reasonably expects to have individual
income in excess of $200,000 in the current year, or (2) had joint income
together with the undersigned’s spouse in excess of $300,000 in each of
the two most recent fiscal years and reasonably expects to have joint
income in excess of $300,000 in the current
year. “Income” means adjusted gross income, as reported
for federal income tax purposes, increased by the following
amounts: (i) any tax exempt interest income under Section 103
of the Internal Revenue Code (the “Code”) received, (ii) any losses
claimed as a limited partner in a limited partnership as reported on
Schedule E of Form 1040, (iii) any deduction claimed for depletion under
Section 611 of the Code or (iv) any amount by which income has been
reduced in arriving at adjusted gross income pursuant to the provisions of
Section 1202 of the Code. In determining personal income,
however, unrealized capital gains should not be
included.
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□
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The undersigned is an
individual with individual net worth, or combined net worth together with
the undersigned’s spouse, in excess of $1,000,000. “Net
worth” means the excess of total assets at fair market value, including
home, home furnishings and automobiles, over total
liabilities.
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□
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The undersigned is a Trust with
total assets in excess of $5,000,000, was not formed for the
specific purpose of acquiring securities of the Company, and the purchase
of the securities is directed by a person with such knowledge and
experience in financial and business matters that he is capable of
evaluating the risks and merits of the prospective investment in such
securities.
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□
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The undersigned is a
corporation, partnership, limited liability company or limited liability
partnership that has total assets in excess of $5,000,000 and was
not formed for the specific purpose of acquiring securities of the
Company.
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□
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The undersigned is an entity in
which all of its equity owners are “accredited
investors”.
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Dated: ___________ ,
2009
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Very
truly yours,
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Name
of Individual #1 or Entity
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Authorized
Signature
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Name
of Individual #2, if applicable
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Authorized
Signature
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Exhibit
C
Regulation
S Compliance
Certification
Exhibit
10.1
With
respect to Regulation S -Rules Governing Offers and Sales Made Outside the
United States Without Registration Under the Securities Act of 1933 ("Regulation
S"), the undersigned, hereby agrees, declares and undertakes that:
1. Purchaser
is not a U.S. Person within the meaning of Regulation S; is not acquiring the
Common Shares and/or Warrant of Asia Select Acquisition III Corp. (the "offered
securities") for the account or benefit of, directly or indirectly, any U.S.
Person. At the time the agreement for the offered securities was
originated, the Purchaser was outside the United States.
2. Purchaser
has not acquired the offered securities as a result of, and will not itself
engage in, any "directed selling efforts" (as defined in Regulation S) in the
United States in respect of any of the offered securities; and it is not aware
of, and has not purchased the offered securities as a result of, any form of
general solicitation or general advertising, including advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
media or broadcast over radio, television or other form of telecommunications,
including internet or web-based communications, or any seminar or meeting whose
attendees have been invited by general solicitation or general
advertising.
3. Purchaser
understands and agrees that the offered securities have not been and will not be
registered under the Securities Act and that they may not be offered or sold
within the United States or to, or for the account or benefit of, "U.S. Persons"
unless registered under the Securities Act or an exemption from registration
under the Securities Act is available. The Purchaser agrees that the offered
securities shall be issued with a legend to such effect, agrees that Asia Select
Acquisition III Corp. ("Asia Select") may require the opinion of legal counsel
reasonably acceptable to Asia Select in the event of any offer, sale, pledge or
transfer of any of the offered securities by the Purchaser pursuant to an
exemption from registration under the Securities Act and relies on the
representation of Asia Select that such legend shall be removed within three
days following the date on which an Purchaser delivers to Asia Select the
written opinion of counsel to the Purchaser, which counsel shall be acceptable
to Asia Select (such acceptance not to be unreasonably withheld), to the effect
that such securities may be sold in compliance with the immediately preceding
sentence. Offered securities acquired upon a resale will continue to be deemed
to be restricted securities within the meaning of the Securities Act,
notwithstanding that they were acquired in a resale transaction made pursuant to
Regulation S.
4. It
will not offer or sell the offered securities to a U.S. Person or for the
account or benefit of a U.S. Person until the end of the 40-day "distribution
compliance period," as defined in Regulation S.
5. If
it sells the offered securities to a distributor (as defined in Regulation S),
or a person receiving a selling concession, fee or other remuneration in respect
of the offered securities sold, prior to the expiration of the 40-day
"distribution compliance period," it will send a confirmation or other notice to
the purchaser stating that the purchaser is subject to the same restrictions on
offers and sales that apply to the Purchaser and setting forth the restrictions
on offers and sales of the offered securities within the United States, or to,
or for the account or benefit of U.S. Persons as set forth in Rule 903 under the
Securities Act.
6. Neither it nor any of its respective
affiliates nor any person acting on their behalf has offered or sold or will
offer to sell the offered securities by means of any "directed selling efforts"
within the meaning of Rule 902 under the Securities Act.
7. It
will comply with the "offering restrictions" requirement of Regulation S and it
acknowledges, agrees and covenants that it will not engage in hedging
transactions with regard to the offered securities prior to the expiration of
the "distribution compliance period" specified in Rule 903 of Regulation S,
unless in compliance with the Securities Act.
8. The
offered securities are purchased for investment purposes, for the Purchaser's
own account, and without any present intention to sell or distribute offered
securities except pursuant to sales that are exempt from the registration
requirements of the Securities Act and/or sales registered under the Securities
Act and, in particular, it has no intention to distribute either directly or
indirectly any of the offered securities in the United States or to U.S.
Persons.
Terms
used in paragraphs (1) through (8) above, including without limitation "United
States," and not otherwise defined have the meanings given to them by Regulation
S.
PURCHASER
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Purchaser
Name
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Authorized
Signature
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