Contract
Exhibit
4.2
NEITHER
THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON ITS EXERCISE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER
ANY STATE SECURITIES LAW. THE COMPANY WILL NOT TRANSFER THIS WARRANT,
OR ANY SHARES OF COMMON SHARES ISSUABLE UPON ITS EXERCISE, UNLESS (i) THERE IS
AN EFFECTIVE REGISTRATION COVERING THIS WARRANT OR SHARES UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, (ii) THE COMPANY FIRST RECEIVES AN OPINION OF
COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY,
STATING THAT THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT AND
UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE
PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT.
|
Warrant
Holder: _________________________
|
|
|
Dated: _________,
201_
|
|
|
For
the Purchase of _____________ Shares of Common Stock
|
No.
_________
|
WARRANT
FOR THE PURCHASE OF
SHARES
OF COMMON STOCK OF
Expiring
Three Years from the Date Hereof
FOR VALUE
RECEIVED, CleanTech Innovations, Inc. (“Company”) hereby certifies that the
Warrant Holder specified above, or its, his or her registered assigns
(“Registered Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company on or before the third anniversary of the date hereof,
that number of shares of Common Stock, $.00001 par value, of the Company
(“Common Stock”) set forth above, at a purchase price equal to $3.00 per share
(as may be adjusted as provided below) upon the terms and conditions set forth
herein. The number of shares of Common Stock purchasable upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the “Warrant Shares” and the “Exercise Price,”
respectively.
|
|
1.
|
Registration of
Transfers and Exchanges.
|
(i) The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Transfer Agent or to the
Company. Upon any such registration or transfer, a new warrant to purchase
Common Stock, in substantially the form of this Warrant (any such new warrant, a
“New Warrant”), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the transferring
Holder. The acceptance of the New Warrant by the transferee thereof
shall be deemed the acceptance of such transferee of all of the rights and
obligations of a holder of a Warrant.
(ii) This
Warrant is exchangeable, upon the surrender hereof by the Holder to the office
of the Company, for one or more New Warrants, evidencing in the aggregate the
right to purchase the number of Warrant Shares that may then be purchased
hereunder. Any such New Warrant will be dated the date of such
exchange.
|
|
2.
|
Exercise.
|
(i) Procedure for
Exercise. Subject to the conditions and terms set forth
herein, this Warrant may be exercised by the Registered Holder (“Exercise
Right”), in whole or in part, by the surrender of this Warrant (with the Notice
of Exercise Form attached hereto as Exhibit 1 duly executed by such Registered
Holder) at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of an amount equal to the then applicable Exercise
Price multiplied by the number of Warrant Shares then being purchased upon such
exercise.
(ii) Exercise
Right. Subject to the terms and conditions set forth herein,
the Exercise Right may be exercised by the Holder on any business day by
delivering to the Company the Warrant with a duly executed Notice of Exercise
Form attached hereto as Exhibit 1 with the exercise section completed by
specifying the total number of shares of Common Stock the Registered Holder will
purchase pursuant to such exercise.
(iii) Date of
Exercise. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company. At
such time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise shall be deemed to have
become the holder or holders of record of the Warrant Shares represented by such
certificates.
(iv) Issuance of
Certificate. As soon as practicable after the exercise of the
purchase right represented by this Warrant, the Company at its expense will
cause to be issued in the name of, and delivered to, the Registered Holder, or,
subject to the terms and conditions hereof, to such other individual or entity
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct:
(a) a
certificate or certificates for the number of full shares of Warrant Shares to
which such Registered Holder shall be entitled upon such exercise plus, in lieu
of any fractional share to which such Registered Holder would otherwise be
entitled, cash in an amount determined pursuant to Section 4 hereof,
and
(b) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, stating on the face or faces thereof the number of shares
currently stated on the face of this Warrant minus the number of such shares
purchased by the Registered Holder upon such exercise as provided in subsection
2(i) above.
2
(v) Exercise of
Warrant. The Warrant may be exercised in whole or from time to
time in part on or prior to the third anniversary of the date hereof, as first
set forth below.
(vi) Company Call Right.
The Company shall have the option to "call" the Warrants (the "Warrant Call"),
one or more times, in accordance with and governed by the
following:
(a) The
Company shall exercise the Warrant Call by giving to the Warrant Holder a
written notice of call (the "Call Notice") during the period in which the
Warrant Call may be exercised setting forth the Common Stock to be called under
this Warrant (or a percentage thereof) and the effective date of each Call
Notice (the "Call Date"), which shall be no earlier than the date on which
notice is deemed delivered under the notice provision of Section 16 of this
Warrant. The exercise price for the Warrant Call shall be $3.00 per
share.
(b) The
Company's right to exercise the Warrant Call shall commence at any time after:
(i) a registration statement registering the Common Stock issuable upon exercise
of this Warrant is declared effective with the Securities and Exchange
Commission (the “SEC”) and (ii) the Common Stock is listed on the New York Stock
Exchange, NYSE Amex, Nasdaq Stock Market, or any other organization or
association that is defined as a national securities exchange by the SEC (an
“Exchange”) and (iii) the closing price on the Exchange is over $4.00, as
adjusted for any stock splits, dividends or other reorganizations that occur
after the date hereof and shall terminate thirty (30) calendar days prior to the
Expiration Date (the “Call Period”).
(c) A
Call Notice may be given by the Company only within the Call Period provided
that the Company shall not have received a notice from the Exchange during the
thirty (30) calendar days prior to the Call Date that the Company or the Common
Stock does not meet the requirements for continued quotation, listing or trading
on the Exchange.
(d) Unless
otherwise agreed to by the Holder of this Warrant, a Call Notice must be given
to all Warrant Holders who receive the same class of warrants issued with this
Warrant, in proportion to the amounts of Common Stock that may be purchased by
the respective Warrant Holders in accordance with the respective Warrants held
by each.
(e) The
Warrant Holder shall exercise the Warrant and purchase the Common Stock set
forth in the Call Notice and pay for same within fifteen (15) trading days after
the Call Date. If the Warrant Holder fails to timely pay the amount required by
the Warrant Call, the Warrants subject to the Warrant Call shall be canceled
without any further action required by the Company and the Company is hereby
irrevocably instructed to reflect such cancelation in its books and
records.
(f) The
Company may not exercise the Warrant Call after the occurrence of a default by
the Company of a material term of this Warrant or the Subscription Agreement
executed by the Warrant Holder in connection with receipt of this Warrant unless
such default has been cured.
3
|
|
3.
|
Adjustments.
|
(i) Split, Subdivision or
Combination of Shares. If, at any time while this Warrant
remains outstanding and unexpired, the outstanding shares of the Company’s
Common Stock shall be subdivided or split into a greater number of shares, or a
dividend in Common Stock shall be paid in respect of Common Stock, the Exercise
Price in effect immediately prior to such subdivision or at the record date of
such dividend shall, simultaneously with the effectiveness of such subdivision
or split or immediately after the record date of such dividend (as the case may
be), be decreased proportionately. If the outstanding shares of
Common Stock shall be combined or reverse-split into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination or reverse
split shall, simultaneously with the effectiveness of such combination or
reverse split, be increased proportionately. When any adjustment is
required to be made in the Exercise Price, the number of shares of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such
adjustment.
(ii) Reclassification,
Reorganization, Consolidation or Merger. In the case of any
reclassification of the Common Stock (other than a change in par value or a
subdivision or combination as provided for in subsection 3(i) above), or any
reorganization, consolidation or merger of the Company with or into another
corporation (other than a merger or reorganization with respect to which the
Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that the
Registered Holder of this Warrant shall have the right thereafter to receive
upon the exercise hereof, the kind and amount of shares of stock or other
securities or property which such Registered Holder would have been entitled to
receive if, immediately prior to any such reorganization, reclassification,
consolidation, merger, sale or liquidating distribution, as the case may be,
such Registered Holder had held the number of shares of Common Stock that were
then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the Registered Holder of
this Warrant such that the provisions set forth in this Section 3 (including
provisions with respect to the Exercise Price) shall thereafter be applicable,
as nearly as is reasonably practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the exercise of this
Warrant.
(iii) Price
Adjustment. No adjustment in the per share Exercise Price
shall be required unless such adjustment would require an increase or decrease
in the Exercise Price of at least $0.01; provided, however, that any adjustments
that by reason of this paragraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 3 shall be made to the nearest cent, with $0.005
being rounded down to the nearest cent, or to the nearest 1/100th of a share, as
the case may be.
4
(iv) No
Impairment. The Company will not, by amendment of its Articles
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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 3 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of the
Registered Holder of this Warrant to adjustments in the Exercise
Price.
(v) Notice of
Adjustment. Upon any adjustment of the Exercise Price or
extension of the Warrant exercise period, the Company shall forthwith give
written notice thereto to the Registered Holder of this Warrant describing the
event requiring the adjustment, stating the adjusted Exercise Price and the
adjusted number of shares purchasable upon the exercise hereof resulting from
such event, and setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
4.
Fractional
Shares. The Company shall not be required to issue fractions
of shares of Common Stock upon exercise. If any fractions of a share
would, but for this Section 4, be issuable upon any exercise, in lieu of such
fractional share the Company shall round up or down to the nearest whole
number.
5.
Limitation on
Sales. Each holder of this Warrant acknowledges that this
Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
(the “Act”), and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon
its exercise in the absence of (i) an effective registration statement under the
Act as to this Warrant or such Warrant Shares or (ii) an opinion of counsel,
reasonably acceptable to the Company and its counsel, that such registration and
qualification are not required. The Warrant Shares issued upon
exercise thereof shall be imprinted with a legend in substantially the following
form:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR IN A TRANSACTION NOT
SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AND IN THE CASE OF A
TRANSACTION EXEMPT FROM REGISTRATION, THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND UNDER ALL APPLICABLE
STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT."
5
6. Notices of Record
Date. In case: (i) the Company shall take a record
of the holders of its Common Stock (or other stock or securities at the time
deliverable upon the exercise of this Warrant) for the purpose of entitling or
enabling them to receive any dividend or other distribution, or to receive any
right to subscribe for or purchase any shares of any class or any other
securities, or to receive any other right, or (ii) of any capital reorganization
of the Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the surviving entity), or
any transfer of all or substantially all of the assets of the Company, or (iii)
of the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will mail or cause to be
mailed to the Registered Holder of this Warrant a notice specifying, as the case
may be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten
(10) days prior to the record date or effective date for the event specified in
such notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
7.
Reservation of
Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. So
long as this Warrant remains outstanding, the Company shall maintain the listing
of the shares of Common Stock to be issued upon exercise on each national
securities exchange on which Common Stock is listed (on the Nasdaq
Over-The-Counter service if the Common Stock is then quoted on such
service/bulletin board).
8.
Replacement of
Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
|
|
9.
|
Transfers,
etc.
|
(i) Warrant
Register. The Company will maintain a register containing the
names and addresses of the Registered Holders of this Warrant. Any
Registered Holder may change its, his or her address as shown on the warrant
register by written notice to the Company requesting such change.
6
(ii) Registered
Holder. Until any transfer of this Warrant is made in the
warrant register, the Company may treat the Registered Holder of this Warrant as
the absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
10. No Rights as
Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
11. Successors. The
rights and obligations of the parties to this Warrant will inure to the benefit
of and be binding upon the Company and any transferees of Warrant
Holder.
12. Change or
Waiver. Any term of this Warrant may be changed or waived only
by an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
13. Headings. The
headings in this Warrant are for purposes of reference only and shall not limit
or otherwise affect the meaning of any provision of this Warrant.
14. Governing
Law. This Warrant shall be governed by and construed in
accordance with the laws of the state of New York, without giving effect to
principles of conflicts of laws.
15. Jurisdiction and
Venue. The Company (i) agrees that any legal suit, action or
proceeding arising out of or relating to this Warrant shall be instituted
exclusively in any state court located in New York, New York or in the United
States District Court for the Southern District of New York, (ii) waives any
objection to the venue of any such suit, action or proceeding and the right to
assert that such forum is not a convenient forum for such suit, action or
proceeding, and (iii) irrevocably consents to the jurisdiction of any state
court located in New York, New York and the United States District Court for the
Southern District of New York in any such suit, action or proceeding, and the
Company further agrees to accept and acknowledge service or any and all process
which may be served in any such suit, action or proceeding in any state court
located in New York, New York or in the United States District Court for the
Southern District of New York and agrees that service of process upon it mailed
by certified mail to its address shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding.
16. Mailing of Notices,
etc. All notices and other communications under this Warrant
(except payment) shall be in writing and shall be sufficiently given if sent to
the Registered Holder or the Company, as the case may be, by hand delivery,
private overnight courier or by registered or certified mail, return receipt
requested, as follows:
Registered
Holder: To Registered Holder’s address as provided on the
Subscription Agreement or otherwise in the Company’s Records.
7
The
Company: To the Company’s Principal Executive Offices
Attention:
Chief Executive Officer.
(with a
copy, which shall not constitute notice to):
The
Xxxxxx Law Firm, PLLC
00 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
or to
such other address as any of them, by notice to the others may designate from
time to time. The time of delivery of the notice shall occur, as the
case may be, one (1) day after the date sent if delivered in person or by
overnight courier or five (5) business days after the mailing date if by
registered or certified mail.
|
By:
|
|||
|
Name:
|
Bei
Lu
|
||
|
Title:
|
Chief
Executive Officer
|
||
8
EXHIBIT
1
NOTICE OF
EXERCISE
|
Date:
|
C
District, Maoshan Industrial Park,
Tieling
Economic Development Zone,
Tieling,
Liaoning Province, People’s Republic of China 112616
Attn: Ms.
Bei Lu, Chief Executive Officer
1. The
undersigned hereby elects to purchase ____________ shares of the Common Stock of
CleanTech Innovations, Inc. pursuant to terms of the attached Warrant, and
tenders herewith payment of $________ __ (at the rate
of $_____ per share of Common Stock) in payment of the Exercise Price(s)
pursuant thereto, together with all applicable transfer taxes, if
any.
2. Please
issue a certificate or certificates representing said shares of the Common Stock
in the name of the undersigned or in such other name as is specified
below.
|
Signature
of Registered Holder
|
|||
|
Print
Name:
|
Notice: The
signature to this form must correspond with the name as written upon the face of
the within Warrant in every particular without alteration or enlargement or any
change whatsoever.
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
|
Name:
|
|
|
(Print
in Block Letters)
|
|
Address:
|
EXHIBIT
2
[To be
completed and signed only upon transfer of Warrant]
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________ the right represented by the within Warrant to
purchase _ _____
shares of Common Stock of CleanTech Innovations, Inc. to which the within
Warrant relates and appoints _____________________________ attorney to transfer
said right on the books of CleanTech Innovations, Inc. with full power of
substitution in the premises.
Dated: ______________,
____
|
(Signature
must conform in all respects to name
of
holder as specified on the face of the Warrant)
|
|||
| Address of Transferee | |||
|
In
the presence of:
|
||||
