WARRANT TO PURCHASE COMMON STOCK VOID AFTER 5:00 P.M., EASTERN TIME, ON THE EXPIRATION DATE
Exhibit
4.2 – Form of Investor Warrant
|
WARRANT
|
||
|
NO.
________
|
______
Shares
|
|
WARRANT TO PURCHASE COMMON
STOCK
VOID
AFTER 5:00 P.M., EASTERN
TIME,
ON THE EXPIRATION DATE
FOR VALUE
RECEIVED, ASIA CORK INC., a Delaware corporation (the “Company”), hereby
agrees to sell upon the terms and on the conditions hereinafter set forth, but
no later than 5:00 p.m., Eastern Time, on the Expiration Date (as hereinafter
defined), to [_____________________], or registered assigns (the “Holder”), under the
terms as hereinafter set forth, [___________________] fully paid and
non-assessable shares of the Company’s Common Stock, par value $0.0001 per share
(the “Warrant
Stock”), at a purchase price of $[____] per share (the “Warrant Price”),
pursuant to this warrant (this “Warrant”). The number
of shares of Warrant Stock to be so issued and the Warrant Price are subject to
adjustment in certain events as hereinafter set forth. The term “Common Stock” shall
mean, when used herein, unless the context otherwise requires, the shares of
common stock of the Company.
1. Exercise of
Warrant.
a. The
Holder may exercise this Warrant according to its terms by surrendering this
Warrant to the Company at the address set forth in Section 12, together
with the form of exercise attached hereto duly executed by the Holder,
accompanied by cash, certified check or bank draft in payment of the Warrant
Price, in lawful money of the United States of America, for the number of shares
of the Warrant Stock specified in such form of exercise, or as otherwise
provided in this Warrant, prior to 5:00 p.m., Eastern Time, on January [__],
2016 (the “Expiration
Date”); provided, however, that the
Holder may not exercise this Warrant prior to January [__], 2012 (the “Exercisable Date”).
b. This
Warrant may be exercised in whole or in part so long as any exercise in part
hereof would not involve the issuance of fractional shares of Warrant
Stock. If exercised in part, the Company shall deliver to the Holder
a new Warrant, identical in form, in the name of the Holder, evidencing the
right to purchase the number of shares of Warrant Stock as to which this Warrant
has not been exercised, which new Warrant shall be signed by the Chairman, Chief
Executive Officer, President, any Vice President or other officer of the
Company. The term Warrant as used herein shall include any subsequent
Warrant issued as provided herein.
c. No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. The Company shall pay cash in lieu of fractions
with respect to the Warrants based upon the fair market value of such fractional
shares of Common Stock (which shall be the closing price of such shares on the
exchange or market on which the Common Stock is then traded) at the time of
exercise of this Warrant.
d. In
the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the Warrant Stock so purchased, registered in
the name of the Holder, shall be delivered to the Holder within a reasonable
time after such rights shall have been so exercised. The person or entity in
whose name any certificate for the Warrant Stock is issued upon exercise of the
rights represented by this Warrant shall for all purposes be deemed to have
become the holder of record of such shares immediately prior to the close of
business on the date on which the Warrant was surrendered and payment of the
Warrant Price and any applicable taxes was made, irrespective of the date of
delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the opening
of business on the next succeeding date on which the stock transfer books are
open. Except as provided in Section 4 hereof, the
Company shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock on
exercise of this Warrant. “Person” shall mean
any natural person, corporation, division of a corporation, partnership, limited
liability company, trust, joint venture, association, company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
2. Reservation and Registration
of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance upon the exercise of this Warrant such number of
shares of its Common Stock as shall be required for issuance upon exercise of
this Warrant. The Company further agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will be duly
authorized and will, upon issuance and against payment of the Warrant Price
therefor, be validly issued, fully paid and non-assessable, free from all taxes,
liens, charges and preemptive rights with respect to the issuance thereof, other
than taxes, if any, in respect of any transfer occurring contemporaneously with
such issuance and other than transfer restrictions imposed by federal and state
securities laws. If the Holder seeks to exercise the Warrant at a
time when the Company is unable to issue the Warrant Stock pursuant to an
effective registration statement, which complies with the federal securities
laws, and the Holder suffers damages, the Company will be obligated to pay to
the Holder the difference between the market value of the Warrant Stock on the
date of exercise (based on the volume weighted average price of the Common
Stock) and the Warrant Price. The volume weighted average price of
the Common Stock for a day is a measure of the price at which the majority of
such day’s trading for the Common Stock took place. It is calculated
by determining the dividend of: (a) the total number of the shares traded on
that day multiplied by the price per share; and (b) the total number of shares
traded for such day.
3. Exchange, Transfer or
Assignment of Warrant. This Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company for other Warrants of different denominations, entitling the Holder
or Holders thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Upon surrender of this Warrant to the
Company with an appropriate instrument of assignment duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. This
Warrant may be divided or combined with other Warrants that carry the same
rights upon presentation hereof at the office of the Company together with a
written notice specifying the names and denominations in which new Warrants are
to be issued and signed by the Holder hereof.
2
4. Capital
Adjustments. This Warrant is subject to the following further
provisions:
a. Recapitalization,
Reclassification and Succession. If any recapitalization
of the Company or reclassification of its Common Stock or any merger or
consolidation of the Company into or with a Person, or the sale or transfer of
all or substantially all of the Company’s assets or of any successor
corporation’s assets to any Person (any such Person being included within the
meaning of the term “successor corporation”) shall be effected, at any time
while this Warrant remains outstanding and unexpired, then, as a condition of
such recapitalization, reclassification, merger, consolidation, sale or
transfer, lawful and adequate provision shall be made whereby the Holder of this
Warrant thereafter shall have the right to receive upon the exercise hereof as
provided in Section
1 and in lieu of the shares of Common Stock immediately theretofore
issuable upon the exercise of this Warrant, such shares of capital stock,
securities or other property as may be issued or payable with respect to or in
exchange for a number of outstanding shares of Common Stock equal to the number
of shares of Common Stock immediately theretofore issuable upon the exercise of
this Warrant had such recapitalization, reclassification, merger, consolidation,
sale or transfer not taken place, and in each such case, the terms of this
Warrant shall be applicable to the shares of stock or other securities or
property receivable upon the exercise of this Warrant after such
consummation.
b. Subdivision or Combination
of Shares. If the Company at any time while this Warrant
remains outstanding and unexpired shall subdivide or combine its Common Stock,
the number of shares of Warrant Stock purchasable upon exercise of this Warrant
and the Warrant Price shall be proportionately adjusted.
c. Stock Dividends and
Distributions. If the Company at any time while this Warrant
is outstanding and unexpired shall issue or pay the holders of its Common Stock,
or take a record of the holders of its Common Stock for the purpose of entitling
them to receive, a dividend payable in, or other distribution of, Common Stock,
then (i) the Warrant Price shall be adjusted in accordance with Section 4(e) and (ii)
the number of shares of Warrant Stock purchasable upon exercise of this Warrant
shall be adjusted to the number of shares of Common Stock that the Holder would
have owned immediately following such action had this Warrant been exercised
immediately prior thereto.
d. Stock and Rights Offering to
Stockholders. If the Company shall at any time after the date
of issuance of this Warrant distribute to all holders of its Common Stock any
shares of capital stock of the Company (other than Common Stock) or evidences of
its indebtedness or assets (excluding cash dividends or distributions paid from
retained earnings or current year’s or prior year’s earnings of the Company) or
rights or warrants to subscribe for or purchase any of its securities (excluding
those referred to in the immediately preceding paragraph) (any of the foregoing
being hereinafter in this paragraph called the “Securities”), then in
each such case, the Company shall reserve shares or other units of such
Securities for distribution to the Holder upon exercise of this Warrant so that,
in addition to the shares of the Common Stock to which such Holder is entitled,
such Holder will receive upon such exercise the amount and kind of such
Securities which such Holder would have received if the Holder had, immediately
prior to the record date for the distribution of the Securities, exercised this
Warrant.
3
e. Warrant Price
Adjustment. Whenever the number of shares of Warrant Stock
purchasable upon exercise of this Warrant is adjusted, as herein provided, the
Warrant Price payable upon the exercise of this Warrant shall be adjusted to
that price determined by multiplying the Warrant Price immediately prior to such
adjustment by a fraction (i) the numerator of which shall be the number of
shares of Warrant Stock purchasable upon exercise of this Warrant immediately
prior to such adjustment, and (ii) the denominator of which shall be the number
of shares of Warrant Stock purchasable upon exercise of this Warrant immediately
thereafter.
f. Certain Shares
Excluded. The number of shares of Common Stock outstanding at
any given time for purposes of the adjustments set forth in this Section 4 shall
exclude any shares then directly or indirectly held in the treasury of the
Company.
g. Deferral and Cumulation of
De Minimis Adjustments. The Company shall not be required to
make any adjustment pursuant to this Section 4 if the
amount of such adjustment would be less than one percent (1%) of the Warrant
Price in effect immediately before the event that would otherwise have given
rise to such adjustment. In such case, however, any adjustment that
would otherwise have been required to be made shall be made at the time of and
together with the next subsequent adjustment which, together with any adjustment
or adjustments so carried forward, shall amount to not less than one percent
(1%) of the Warrant Price in effect immediately before the event giving rise to
such next subsequent adjustment.
h. Duration of
Adjustment. Following each computation or readjustment as
provided in this Section 4, the new
adjusted Warrant Price and number of shares of Warrant Stock purchasable upon
exercise of this Warrant shall remain in effect until a further computation or
readjustment thereof is required.
5. Notice to
Holders.
a. Notice 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 receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend (other than a cash dividend
payable out of earned surplus of the Company) or other distribution, or any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right;
(ii) of
any capital reorganization of the Company, any reclassification of the capital
stock of the Company, any consolidation with or merger of the Company into
another Person, or any conveyance of all or substantially all of the assets of
the Company to another Person; or
(iii) of
any voluntary dissolution, liquidation or winding-up of the
Company;
4
then, and
in each such case, the Company will mail or cause to be mailed to the Holder
hereof at the time outstanding 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 date on which such reorganization,
reclassification, consolidation, merger, conveyance, 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 stock or securities at the
time receivable 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, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least twenty (20) days
prior to the record date therein specified, or if no record date shall have been
specified therein, at least twenty (20) days prior to the date of such action,
provided, however, failure to
provide any such notice shall not affect the validity of such
transaction.
b. Certificate of
Adjustment. Whenever any adjustment shall be made pursuant to Section 4 hereof, the
Company shall promptly make a certificate signed by its Chairman, Chief
Executive Officer, President, Vice President, Chief Financial Officer or
Treasurer or other officer, setting forth in reasonable detail the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated and the Warrant Price and number of shares
of Warrant Stock purchasable upon exercise of this Warrant after giving
effect to such adjustment, and shall promptly cause copies of such certificate
to be mailed (by first class mail, postage prepaid) to the Holder of this
Warrant.
6. Restriction on
Trading. Prior to the Exercisable Date, the Holder has agreed
that this Warrant shall not be traded separately by any Person, including but
not limited to the Holder, any transferee, assignee, designee unless Global
Arena Capital Corp. notifies the Company in writing of its approval of such
trading.
7. Redemption. The
Company shall have the right, on or after the Exercisable Date, to redeem this
Warrant for a five cents ($0.05) per share of Warrant Stock (the “Redemption Price”);
provided, that: (a) the Company
shall provide notice of not less than twenty (20) days (the “Redemption Period”)
to the Holder; and (b) the closing sale price of the Common Stock as reported on
the national exchange on which the Common Stock is listed, or if the Common
Stock is not listed on a national securities exchange, the closing bid price on
the OTCBB for twenty (20) consecutive trading days, ending on the tenth (10th) day
prior to the date on which the Company gives such notice of redemption, has been
at least $[___]. The Holder shall have the right to exercise this
Warrant until the close of business on the day preceding the date fixed for such
redemption. On and after the redemption date, the Holder shall have
no further rights except to receive, upon surrender of this Warrant, the
Redemption Price
8. Loss, Theft, Destruction or
Mutilation. Upon receipt by the Company of evidence
satisfactory to it, in the exercise of its reasonable discretion, of the
ownership and the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, of indemnity reasonably satisfactory to
the Company and, in the case of mutilation, upon surrender and cancellation
hereof, the Company will execute and deliver in lieu hereof, without expense to
the Holder, a new Warrant of like tenor dated the date hereof.
5
9. Warrant Holder Not a
Stockholder. The Holder of this Warrant, as such, shall not be
entitled by reason of this Warrant to any rights whatsoever as a stockholder of
the Company.
10. Notices. Any
notice required or contemplated by this Warrant shall be deemed to have been
duly given if transmitted by registered or certified mail, return receipt
requested, postage prepaid, or nationally recognized overnight delivery
service, to the Company
at its principal executive offices: 3rd Floor,
A Tower of Xxxxxx Xxx, Information Building, Xx. 00 Xxxxxx Xxxx Xxxx, Xx Xxxx
Xxxx Xxxx, Xxxxx, Attention: Chief Executive Officer, or to the Holder at the
name and address set forth in the Warrant Register maintained by the
Company.
11. Choice of Law. THIS
WARRANT IS ISSUED UNDER AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
12. Jurisdiction and
Venue. The Company and the Holder, by its acceptance hereof,
hereby agree that any dispute which may arise between them arising out of or in
connection with this Warrant shall be adjudicated before a court located in New
York City, New York, and they hereby submit to the exclusive jurisdiction of the
federal and state courts of the State of New York located in New York City, New
York County with respect to any action or legal proceeding commenced by any
party, and irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, relating to or
arising out of this Warrant or any acts or omissions relating to the sale of the
securities hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail, return receipt
requested, postage prepaid, in care of the address set forth herein or such
other address as either party shall furnish in writing to the
other.
[Signature
Page Follows]
6
IN
WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its
behalf, in its corporate name and by its duly authorized officer, as of this
[__]th day of
January, 2011.
|
COMPANY:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
WARRANT
AGENT:
|
||
|
[NAME]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
7
FORM OF
EXERCISE
(to be
executed by the registered holder hereof)
The
undersigned hereby exercises the right to purchase _________ shares of common
stock, par value $0.0001 per share (“Common Stock”), of
Asia Cork Inc. evidenced by the within Warrant Certificate for a Warrant Price
of $_____ per share and herewith makes payment of the Warrant Price in full of
$__________. Kindly issue certificates for shares of Common Stock (and for the
unexercised balance of the Warrants evidenced by the within Warrant Certificate,
if any) in accordance with the instructions given below.
|
Dated:____________________
, 20__ .
|
______________________________
|
|
Name:
|
Instructions
for registration of stock:
_____________________________
Name
(Please Print)
Social
Security or other identifying Number: _______________
Address:____________________________________________
City,
State and Zip Code
Instructions
for registration of certificate representing the
unexercised balance of Warrants (if any):
_____________________________
Name (Please Print)
Social
Security or other identifying Number: _______________
Address:____________________________________________
City,
State and Zip Code
8
