Contract
EXHIBIT
4.2
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (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 APPLICABLE STATE
SECURITIES LAWS 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 AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
ASIAN
FINANCIAL, INC.
WARRANT
|
Warrant
No. 000001
|
Original
Issue Date: November 2, 2006
|
Asian
Financial, Inc., a Wyoming corporation (the "Company"),
hereby certifies that, as partial compensation for placement agent services,
Xxxx Capital Partners, LLC or its registered assigns (the "Holder"),
is
entitled to purchase from the Company up to a total of 1,644,702 shares of
Common Stock (each such share, a "Warrant
Share"
and all
such shares, the "Warrant
Shares"),
at
any time and from time to time from and after June 30, 2008 and through and
including June 30, 2013 (the "Expiration
Date"),
and
subject to the following terms and conditions:
1. Definitions.
As used
in this Warrant, the following terms shall have the respective definitions
set
forth in this Section 1.
"Affiliate"
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144.
"Business
Day"
means
any day except Saturday, Sunday and any day that is a federal legal holiday
in
the United States or a day on which banking institutions in the State of New
York are authorized or required by law or other government action to
close.
"Common
Stock"
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended.
"Exercise
Price"
means
$1.57, subject to adjustment in accordance with Section 9.
"Fundamental
Transaction"
means
any of the following: (1) the Company effects any merger or consolidation of
the
Company with or into another Person as a result of which stockholders of the
Company immediately prior to such merger or consolidation possess a minority
of
the voting power of the acquiring entity immediately following such transaction,
(2) the Company effects any sale of all or substantially all of its assets
in
one or a series of related transactions, (3) any tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for
other securities, cash or property, or (4) the Company effects any
reclassification of the Common Stock or any compulsory share exchange pursuant
to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property.
“New
York Courts”
means
the state and federal courts sitting in the City of New York, Borough of
Manhattan.
“Original
Issue Date”
means
the Original Issue Date first set forth on the first page of this
Warrant.
"Person"
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
"Rule
144"
means
Rule 144 promulgated by the Securities and Exchange Commission pursuant to
the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission
having substantially the same effect as such Rule.
"Securities
Act"
means
the Securities Act of 1933, as amended.
"Trading
Day" means (i) a day on which the Common Stock is traded on a Trading Market
(other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed
on a Trading Market (other than the OTC Bulletin Board), a day on which the
Common Stock is traded in the over-the-counter market, as reported by the OTC
Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the Pink Sheets, LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day.
"Trading
Market"
means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.
"Warrant
Shares"
means
the shares of Common Stock issuable upon exercise of this Warrant.
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2. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the "Warrant
Register"),
in
the name of the record Holder hereof from time to time. The Company may deem
and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
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 Company at its address
specified herein. 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 by such transferee of all of the rights and obligations of a holder
of a Warrant.
4. Exercise
and Duration of Warrants.
This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after June 30, 2008 through and including the Expiration Date.
At
6:30 p.m., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value.
The Company may not call or redeem any portion of this Warrant without the
prior
written consent of the affected Holder.
5. Delivery
of Warrant Shares.
(a) To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant
is
being exercised. Upon delivery of the Exercise Notice (in the form attached
hereto) to the Company (with the attached Warrant Shares Exercise Log) at its
address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase
hereunder, the Company shall promptly (but in no event later than three Trading
Days after the Date of Exercise (as defined herein)) issue and deliver to the
Holder, a certificate for the Warrant Shares issuable upon such exercise. The
Company shall, upon request of the Holder and subsequent to the date on which
a
registration statement covering the resale of the Warrant Shares has been
declared effective by the Securities and Exchange Commission, use its reasonable
best efforts to deliver Warrant Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions, if available, provided,
that,
the Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Warrant Shares electronically through
the
Depository Trust Corporation. A "Date
of Exercise"
means
the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, payment of the Exercise Price
for
the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), then the Holder will have the right to rescind such exercise.
(c) If
by the
fifth Trading Day after a Date of Exercise the Company has yet to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), and if after such fifth Trading Day and prior to the receipt of such
Warrant Shares, the Holder (i) has not then rescinded such exercise pursuant
to
Section 5(b) and (ii) purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of
the
Warrant Shares which the Holder anticipated receiving upon such exercise (a
"Buy-In"),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder's total purchase price (including brokerage commissions, if any) for
the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue by (B) the
closing bid price of the Common Stock on the Date of Exercise (or, if on the
Date of Exercise, the Common Stock is not traded on any Trading Market, the
fair
market value of one share of the Common Stock on the Date of Exercise, as
determined by the Company’s Board of Directors) and (2) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of
Warrant Shares for which such exercise was not honored or deliver to the Holder
the number of shares of Common Stock that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. The Holder
shall provide the Company written notice indicating the amounts payable to
the
Holder in respect of the Buy-In.
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(d) The
Company's obligations to issue and deliver Warrant Shares in accordance with
the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or
any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein shall
limit a Xxxxxx's right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company's failure
to
timely deliver certificates representing Warrant Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of Warrant Shares upon exercise of this Warrant shall
be
made without charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in respect of the
issuance of such certificates, all of which taxes and expenses shall be paid
by
the Company; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or Warrants in a name other
than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant
or
receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which shall not
include a surety bond), if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of Persons other
than the Holder (taking into account the adjustments and restrictions of Section
9). The Company covenants that all Warrant Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in
accordance with the terms hereof, be duly and validly authorized, issued and
fully paid and nonassessable.
9. Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
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(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding there is a Fundamental Transaction,
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the same amount and kind of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant (the "Alternate
Consideration").
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder's option and request, any successor to the Company
or
surviving entity in such Fundamental Transaction shall, either (1) issue to
the
Holder a new warrant substantially in the form of this Warrant and consistent
with the foregoing provisions and evidencing the Holder's right to purchase
the
Alternate Consideration for the aggregate Exercise Price upon exercise thereof,
or (2) purchase the Warrant from the Holder for a purchase price, payable in
cash within five Trading Days after such request (or, if later, on the effective
date of the Fundamental Transaction), equal to the Black Scholes value of the
remaining unexercised portion of this Warrant on the date of such request.
The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this paragraph (b) and insuring that the Warrant (or
any
such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
(c) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to this
Section 9, the number of Warrant Shares that may be purchased upon exercise
of
this Warrant shall be increased or decreased proportionately, so that after
such
adjustment the aggregate Exercise Price payable hereunder for the adjusted
number of Warrant Shares shall be the same as the aggregate Exercise Price
in
effect immediately prior to such adjustment.
(d) Calculations.
All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(e) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section 9, the Company at
its
expense will promptly compute such adjustment in accordance with the terms
of
this Warrant and prepare a certificate setting forth such adjustment, including
a statement of the adjusted Exercise Price and adjusted number or type of
Warrant Shares or other securities issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments and
showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate
to
the Holder and to the Company's Transfer Agent.
(f) Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of
the
affairs of the Company, then the Company shall deliver to the Holder a notice
describing the material terms and conditions of such transaction (but only
to
the extent such disclosure would not result in the dissemination of material,
non-public information to the Holder) at least 10 calendar days prior to the
applicable record or effective date on which a Person would need to hold Common
Stock in order to participate in or vote with respect to such transaction,
and
the Company will take all steps reasonably necessary in order to insure that
the
Holder is given the practical opportunity to exercise this Warrant prior to
such
time so as to participate in or vote with respect to such transaction; provided,
however, that the failure to deliver such notice or any defect therein shall
not
affect the validity of the corporate action required to be described in such
notice.
5
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in one of the following manners:
(a) Cash
Exercise.
The
Holder may deliver immediately available funds; or
(b) Cashless
Exercise.
The
Holder may notify the Company in an Exercise Notice of its election to utilize
cashless exercise, in which event the Company shall issue to the Holder the
number of Warrant Shares determined as follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
average of the closing prices for the five Trading Days immediately prior to
(but not including) the Date of Exercise.
B
= the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced,
on
the date this Warrant was originally issued.
11. Limitations
on Exercise.
Notwithstanding anything to the contrary contained herein, the number of Warrant
Shares that may be acquired by the Holder upon any exercise of this Warrant
(or
otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the
total
number of shares of Common Stock then beneficially owned by such Holder and
its
Affiliates and any other Persons whose beneficial ownership of Common Stock
would be aggregated with the Holder's for purposes of Section 13(d) of the
Exchange Act, does not exceed 9.999% of the total number of issued and
outstanding shares of Common Stock (including for such purpose the shares of
Common Stock issuable upon such exercise). For such purposes, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. This provision shall
not restrict the number of shares of Common Stock which a Holder may receive
or
beneficially own in order to determine the amount of securities or other
consideration that such Holder may receive in the event of a Fundamental
Transaction as contemplated in Section 9 of this Warrant. This restriction
may
not be waived.
12. No
Fractional Shares.
No
fractional shares of Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of such
fraction multiplied by the closing bid price of one Warrant Share as reported
by
the applicable Trading Market on the Date of Exercise (or, if on the Date of
Exercise, the Warrant Shares are not traded on any Trading Market, the fair
market value of one Warrant Share on the Date of Exercise, as determined in
good
faith by the Company’s Board of Directors).
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13. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number specified
in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (ii)
the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
on
a day that is not a Trading Day
or later
than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice
is
required to be given. The addresses for such communications shall be: (i) if
to
the Company, to Xx. 0 Xxxxxxx Xxxx, Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxxxxxx
Xxxx,
Xxxxxxx, Xxxxx 102600, Attn.: Xxxxx Xxxx, or to Facsimile No.: 861060216825
(or
such other address as the Company shall indicate in writing in accordance with
this Section), or (ii) if to the Holder, to the address or facsimile number
appearing on the Warrant Register or such other address or facsimile number
as
the Holder may provide to the Company in accordance with this
Section.
14. No
Stockholder Rights.
This
Warrant, by itself, as distinguished from any Warrant Shares issued hereunder,
shall not entitle the Holder to any of the rights of a stockholder of the
Company.
15. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 10 days' notice to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
16. Holder
Representations.
The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
is
being issued by the Company in reliance upon the following
representations
of the
Holder:
(a) the
Holder is an entity duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization with the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by the Warrant and otherwise to carry out its obligations
hereunder. The acceptance of the Warrant has been duly authorized by all
necessary limited liability company action and will constitute the valid and
legally binding obligation of such Holder, enforceable against it in accordance
with the terms hereunder;
(b) that
as
of the date hereof,
the
Holder is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and such Holder has such experience in business and financial
matters that it is capable of evaluating the merits and risks of the Warrant.
The Holder acknowledges that returns based upon the Warrant are speculative
and
involve a high degree of risk;
(c) the
Holder is not acquiring the Warrant as a result of any advertisement, article,
notice, meeting or other communication regarding the Warrant published in any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement;
(d) the
Holder acknowledges that it has the information (or access to such information)
with respect to the Company that is necessary for it to make the decision to
acquire the Warrant and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Warrant and the merits and risks of acquiring the Warrant;
(ii)
information or access to information about the Company and its subsidiaries
as
disclosed in the Company’s filings with the Commission and their respective
financial conditions, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate the Warrant; and (iii) the
opportunity to obtain such additional information that the Company possesses
or
can acquire without reasonable effort or expense that is necessary to make
an
informed decision with respect to the Warrant;
(e) the
Holder has independently evaluated the merits of its decision to acquire the
Warrant and such Holder confirms that it has not relied on the advice of any
business or legal counsel in making such decision;
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(f) the
Holder is acquiring the
Warrant
as principal for its own account and not with a view to or for distributing
or
reselling this Warrant,
any part
thereof, or
any
Warrant Shares, without
prejudice, however, to the Holder’s right at all times to sell or otherwise
dispose of all or any part of the
Warrant
in compliance with applicable federal and state securities laws.
The
Holder is acquiring the Warrant in the ordinary course of its business. The
Holder does not have any agreement or understanding, directly or indirectly,
with any person to distribute the Warrant or any portion hereof;
(g) the
Holder understands that the Warrant and any Warrant Shares must be held
indefinitely unless they are registered
under
the Securities Act or
an
exemption from registration is available. The Holder acknowledges that it is
familiar with Rule 144 and that such Xxxxxx has been advised that Rule 144
permits resales only under certain circumstances. The Holder understands that
to
the extent that Rule 144 is not available, such Holder will be unable to sell
any portion of the Warrant or Warrant Shares without either registration under
the Securities Act or the existence of another exemption from such registration
requirement; and
(h) the
Holder understands that the Warrant is being offered and issued in reliance
on a
transactional exemption from the registration requirements of
federal
and state securities laws
and the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgements and understandings of the Holder set
forth herein in order to determine the applicability of such exemptions and
the
suitability of the Holder to acquire the Warrant. The Holder understands that
no
United States federal or state agency or any government or governmental agency
has passed upon or made any recommendation or endorsement of the
Warrant.
17. Miscellaneous.
(a) This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than
the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of this
Warrant and the transactions herein contemplated (“Proceedings”) (whether
brought against a party hereto or its respective Affiliates, employees or
agents) shall be commenced exclusively in the New York Courts. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant
and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any
way
any right to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Warrant or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of this Warrant,
then the prevailing party in such Proceeding shall be reimbursed by the other
party for its attorney’s fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
8
(d) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) Prior
to
exercise of this Warrant, the Holder hereof shall not, by reason of by being
a
Holder, be entitled to any rights of a stockholder with respect to the Warrant
Shares.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
Asian
Financial, Inc.
|
By:
|
/s/
Xxxxxx Xxx
|
|
Name:
Xxxxxx Xxx
|
|
|
Title:
Chief Executive Officer
|
Acceptance
of this Warrant, including the exhibits attached hereto,
and
the
terms and conditions herein acknowledged by:
XXXX
CAPITAL PARTNERS, LLC
|
By:
|
/s/
Xxxxxx Xxxx
|
|
Name:
Xxxxxx Xxxx
|
|
|
Title:
CFO
|
EXERCISE
NOTICE
Asian
Financial, Inc.
WARRANT
DATED NOVEMBER 2, 2006
The
undersigned Holder hereby irrevocably elects to purchase _____________ shares
of
Common Stock pursuant to the above referenced Warrant. Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in
the
Warrant.
|
(1)
|
The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
|
|
(2)
|
The
Holder intends that payment of the Exercise Price shall be made as
(check
one):
|
____“Cash
Exercise” under Section 10
____“Cashless
Exercise” under Section 10
|
(3)
|
If
the holder has elected a Cash Exercise, the holder shall pay the
sum of
$____________ to the Company in accordance with the terms of the
Warrant.
|
|
(4)
|
Pursuant
to this Exercise Notice, the Company shall deliver to the holder
_______________ Warrant Shares in accordance with the terms of the
Warrant.
|
|
(5)
|
By
its delivery of this Exercise Notice, the undersigned is
hereby making the same representations and warranties as of the date
of
exercise as those set forth in Section 16 of the Warrant.
|
|
(6)
|
By
its delivery of this Exercise Notice, the undersigned represents
and
warrants to the Company that in giving effect to the exercise evidenced
hereby the Holder will not beneficially own in excess of the number
of
shares of Common Stock (determined in accordance with Section 13(d)
of the
Securities Exchange Act of 1934) permitted to be owned under Section
11 of
this Warrant to which this notice
relates.
|
|
Dated: ,
|
Name
of Holder:
|
|
|
(Print)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
|
-1-
Warrant
Shares Exercise Log
|
Date
|
Number
of Warrant Shares
Available
to be Exercised
|
Number
of Warrant Shares
Exercised
|
Number
of
Warrant
Shares
Remaining
to be
Exercised
|
ASIAN
FINANCIAL, INC.
WARRANT
DATED NOVEMBER 2, 2006
WARRANT
NO. ___
FORM
OF
ASSIGNMENT
[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 above-captioned
Warrant to purchase ____________ shares of Common Stock to which such Warrant
relates and appoints ________________ attorney to transfer said right on the
books of the Company with full power of substitution in the
premises.
Dated: _______________,
____
|
Address
of Transferee
|
|
In
the
presence of:
____________________
