WARRANT PURCHASE AGREEMENT
Exhibit
10.4
WARRANT
PURCHASE AGREEMENT (this
“Agreement”)
made
as of this __th day of _____, 2008 among Chardan 2008 China Acquisition Corp.,
a
British Virgin Islands business company of limited liability (the “Company”),
and
the undersigned (each a “Purchaser”,
and,
collectively, the “Purchasers”).
WHEREAS,
the
Company has filed with the Securities and Exchange Commission (the “SEC”)
a
registration statement on Form F-1, as amended (File No. 333-152623) (the
“Registration
Statement”),
in
connection with the Company’s initial public offering (the “IPO”)
of
6,875,000 units (the “Units”),
each
unit consisting of (i) one of the Company’s ordinary shares, par value $0.0001
per share (the “Ordinary
Shares”),
and
(ii) one warrant (a “Warrant”),
each
Warrant to purchase one Ordinary Share;
WHEREAS,
immediately prior to the consummation of the IPO, the Company desires to sell
in
a private placement to the Purchasers (the “Placement”)
an
aggregate of 2,000,000 warrants (the “Private
Placement Warrants”)
substantially identical to the Warrants being issued in the IPO pursuant to
the
terms and conditions hereof and as set forth in the Registration Statement,
except that the Private Placement Warrants to be issued in the Placement shall
not be registered under the Securities Act of 1933, as amended (the
“Securities
Act”);
WHEREAS,
each
Purchaser desires to acquire the number of Private Placement Warrants set forth
opposite his name on Schedule
A
annexed
hereto;
WHEREAS,
except
as provided herein, the Private Placement Warrants shall be governed by the
Warrant Agreement filed as an exhibit to the Registration Statement;
and
WHEREAS,
the
Purchasers are entitled to registration rights with respect to the Private
Placement Warrants and the Ordinary Shares underlying the Placement Warrants
(the “Underlying
Shares”)
on the
terms set forth in this Agreement;
NOW,
THEREFORE,
for and
in consideration of the premises and the mutual covenants hereinafter set forth,
the parties hereto do hereby agree as follows:
1. Purchase
of Private Placement Warrants.
The
Purchasers hereby agree, directly or through their nominees, to purchase an
aggregate of 2,000,000 Private Placement Warrants at a purchase price of $0.50
per Private Placement Warrant, or an aggregate of $1,000,000 (the “Purchase
Price”).
Such
purchases shall be in the names and amounts set forth on Schedule
A
annexed
hereto.
2. Closing.
The
closing of the purchase and sale of the Private Placement Warrants (the
“Closing”)
will
take place at such time and place as the parties may agree (the “Closing
Date”),
but
in no event later than one business day prior to the effective date of the
Registration Statement (“Effective
Date”).
On or
prior to the Effective Date, the Purchasers shall pay the Purchase Price by
wire
transfer of funds to Xxxxxxxxxx & Xxxxx LLP, outside counsel for the
Company. On the Closing Date, the Company shall cause Xxxxxxxxxx & Xxxxx LLP
to transfer the Purchase Price to the trust account at Xxxxxxx Sachs in London,
maintained by Continental Stock Transfer & Trust Company, acting as trustee
(the “Trust
Account”).
The
certificates for the Private Placement Warrants shall be placed into escrow
pursuant to the Private Placement Warrant Escrow Agreement dated _____ __,
2008
by and among Continental and the other signatories thereto.
3. Representations
and Warranties of the Purchasers.
Each
Purchaser hereby represents and warrants to the Company that:
3.1 The
execution and delivery by the Purchasers of this Agreement and the fulfillment
of and compliance with the respective terms hereof by the Purchasers do not
and
shall not as of the Closing
conflict with or result in a breach of the terms, conditions or provisions
of
any other agreement, instrument, order, judgment or decree to which Purchasers
are subject to.
3.2 The
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
3.3 The
Private Placement Warrants are being acquired for the Purchaser’s own account,
only for investment purposes and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act.
3.4 The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
3.5 The
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the securities or the fairness or suitability of the investment
in the securities nor have such authorities passed upon or endorsed the merits
of the offering of the securities.
4. Registration
Rights.
The
Purchasers shall have registration rights pursuant to the Registration Rights
Agreement, dated as of _____ __, 2008, by and among the Company and the
Investors listed on the signature page thereto.
5. Waiver
of Claims Against Trust Account.
Each
Purchaser hereby waives any and all right, title, interest or claim of any
kind
in or to any distributions from the Trust Account with respect to any Ordinary
Shares acquired by the Purchaser in connection with the exercise of the Private
Placement Warrants purchased pursuant to this Agreement (“Claim”)
and
hereby waives any Claim the undersigned may have in the future as a result
of,
or arising out of, any contracts or agreements with the Company and will not
seek recourse against the Trust Account for any reason whatsoever.
6. Legends;
Denominations
6.1 Legend.
The
Company will issue the Private Placement Warrants, and when issued the
Underlying Shares, purchased by Purchaser in the name of Purchaser and in such
denominations to be specified by Purchaser. The Private Placement Warrants
and
Underlying Shares will bear the following legend and appropriate “stop transfer”
instructions:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN A PRIVATE PLACEMENT WARRANT ESCROW AGREEMENT (THE
“AGREEMENT”) AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED DURING THE TERM OF THE ESCROW PERIOD (AS DEFINED IN THE
AGREEMENT).
7. Forfeiture
of Warrants.
7.1. Failure
to Consummate Business Combination.
The
Placement Warrants shall be forfeited to the Company in the event the Company
does not consummate a business combination within 18, 30 or 36 months from
the
date of the final prospectus relating to the Company’s IPO, as described in the
Registration Statement.
7.2. Termination
of Rights as holder; Escrow.
If the
Private Placement Warrants are forfeited in accordance with this Section 7,
then
after such time the Purchaser (or successor in interest), shall no longer have
any rights as a holder of such Private Placement Warrants, and the Company
shall
take such action as is appropriate to cancel such Private Placement Warrants.
To
effectuate the foregoing, all certificates representing Private Placement
Warrants shall be held in escrow as provided in Section 2 hereof. In addition,
Purchaser hereby irrevocably grants the Company a limited power of attorney
for
the purpose of effectuating the foregoing.
8. Waiver
and Indemnification.
Each
Purchaser hereby waives any and all rights to assert any present or future
claims, including any right of rescission, against the Company or the
underwriters in the IPO with respect to their purchase of the Private Placement
Warrants, and each Purchaser agrees jointly and severally to indemnify and
hold
the Company and the underwriters in the IPO harmless from all losses, damages
or
expenses that relate to claims or proceedings brought against the Company or
such underwriters by Purchasers of the Private Placement Warrants.
9. Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same instrument. This Agreement or any counterpart may
be
executed via facsimile transmission, and any such executed facsimile copy shall
be treated as an original.
10. Governing
Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties 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 New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF,
the
undersigned have executed this Warrant Purchase Agreement as of the __th day
of
_____, 2008.
Exhibit
10.4
SCHEDULE
A
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Name
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Number
of Placement Warrants
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Price
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$
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$
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$
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$
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$
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