CLASS A WARRANT AGREEMENT
Exhibit
4.8
Agreement
made as of [____], 2006 between Middle Kingdom Alliance Corp., a corporation
organized under the laws of Delaware, with offices at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000 (“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 (“Warrant Agent”).
WHEREAS,
the
Company is engaged in a public offering (“Public Offering”) of Series B Units
(“Units”) and, in connection therewith, has determined to issue and deliver up
to (i) 180,000 Class A Warrants (plus an additional 27,000 Class A Warrants
if the representative of the underwriters exercise their over-allotment option)
to the public investors plus 361,800 Class A Warrants in connection with a
private placement of securities to certain investors prior to the Public
Offering (collectively, the “Class A Warrants”), and (ii) 18,000 Class A
Warrants to Newbridge Securities Corp. and I-Bankers Securities, Inc. (the
“Representatives”) or their designees (“Representative’s Warrants” and, together
with the Class A Warrants, the “Warrants”), each of such Warrants evidencing the
right of the holder thereof to purchase one share, par value $0.001, of the
Company’s common stock (“Common Stock”) for $5.00, subject to adjustment as
described herein; and
WHEREAS,
the
Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-133475 on Form S-1 (the “Registration Statement”)
for the registration, under the Securities Act of 1933, as amended (“Act”) of,
among other securities, the Warrants and the Common Stock issuable upon exercise
of the Warrants; 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 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:
2. Warrants.
2.1 Form
of
Warrant. Each Warrant shall be issued in registered form only, shall 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
or President and Secretary of the Company and shall 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.
2.3 Registration.
3.1 Warrant
Price. Each Class A Warrant and each Representative’s Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Class A Warrant or Representative’s Warrant
and of this Warrant Agreement, to purchase from the Company the number of Common
Stock 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 Common Stock 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.
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(a) The
Company has engaged the Representatives, 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 Representatives with respect to such solicitation, if
requested by the Representatives, and (ii) provide the Representatives, and
direct the Company’s transfer agent and the Warrant Agent to deliver to the
Representatives, 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 Representatives in every respect in connection with the
Representatives’ solicitation activities, including, but not limited to,
providing to the Representatives, 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
Representatives 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 Representatives 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
Representatives 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 Representatives, (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 Representatives 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 Representatives’ Warrants and
still held by any of the foregoing for their own account. The Representatives
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.
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(c) The
provisions of this Section 3.3.5. may not be modified, amended or deleted
without the prior written consent of the Representatives.
4. Adjustments.
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6. Redemption.
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000
Xxxxx
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxx, Secretary and General Counsel
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
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with
a
copy in either case to:
Cozen
X’Xxxxxx
The
Army
& Navy Club Building
0000
X
Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xx Xxxxxxx, Esq.
and
Newbridge
Securities Corp.
[_______________]
[_______________]
Attn:
[__________]
and
I-Bankers
Securities, Inc.
[_______________]
[_______________]
Attn:
[__________]
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 Delaware,
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
Delaware or the United States District Court for Delaware, 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.
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MIDDLE KINGDOM ALLIANCE CORP. | ||
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By: | ||
Xxxxxxx X. Xxxxxxxxx III, Chief Executive Officer |
CONTINENTAL
STOCK
TRANSFER &
TRUST
COMPANY
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By: | ||
Name: Xxxxxx Xxxxxx |
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Title: President |
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