CLASS B WARRANT AGREEMENT
Exhibit
4.9
Agreement
made as of [____], 2006 between Middle Kingdom Alliance Corp., a corporation
organized under the laws of Delaware, with offices at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000 (“Company”), and Continental Stock
Transfer & Trust Company, a New York corporation, with offices at
Continental Stock Transfer & Trust Company, 00 Xxxxxxx Xxxxx, 0xx
xxxxx, Xxx Xxxx XX, 00000 (“Warrant Agent”).
WHEREAS,
the
Company is engaged in a public offering (“Public Offering”) of Series
A
Units and Series B Units (collectively,
the “Units”) and, in connection therewith, has determined to issue and
deliver up to (i) 3,000,000 Class B Warrants (plus an additional 450,000
Class B Warrants if the representative of the underwriters exercise their
over-allotment option) (the “Class B Public Warrants”) to the public investors,
and (ii) 300,000 Class B Warrants to I-Bankers Securities, Inc. (the
“Representative”) or their designees (“Representative’s Warrants” and, together
with the Class B Public Warrants, the “Warrants”), each of such Warrants
evidencing the right of the holder thereof to purchase one share, par value
$0.001, of the Company’s common stock (“Common Stock”) for $5.00, subject to
adjustment as described herein; and
WHEREAS,
the
Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-133475 on Form S-1 (the “Registration Statement”)
for the registration, under the Securities Act of 1933, as amended (“Act”) of,
among other securities, the Warrants and the Common Stock issuable upon exercise
of the Warrants; and
WHEREAS,
the
Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the
Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all
acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE,
in
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
1. Appointment
of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent
for the Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
2.1 Form
of
Warrant. Each Warrant shall be issued in registered form only, shall be in
substantially the form of Exhibit
A
hereto,
the provisions of which are incorporated herein and shall be signed by, or
bear
the facsimile signature of, the Chief Executive Officer, Chairman of the Board
or President and Secretary of the Company and shall bear a facsimile of the
Company’s seal. In the event the person whose facsimile signature has been
placed upon any Warrant shall have ceased to serve in the capacity in which
such
person signed the Warrant before such Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
2.2 Effect
of
Countersignature. Unless and until countersigned by the Warrant Agent pursuant
to this Agreement, a Warrant shall be invalid and of no effect and may not
be
exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant
Register. The Warrant Agent shall maintain books (“Warrant Register”), for the
registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall
issue and register the Warrants in the names of the respective holders thereof
in such denominations and otherwise in accordance with instructions delivered
to
the Warrant Agent by the Company.
2.3.2 Registered
Holder. Prior to due presentment for registration of transfer of any Warrant,
the Company and the Warrant Agent may deem and treat the person in whose name
such Warrant shall be registered upon the Warrant Register (“registered
holder”), as the absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing on the
Warrant Certificate made by anyone other than the Company or the Warrant Agent),
for the purpose of any exercise thereof, and for all other purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4 Detachability
of Warrants. The securities comprising the Units will not be separately
transferable until 90 days after the date hereof unless the Representative
informs the Company of its decision to allow earlier separate trading, but
in no
event will the Representative allow separate trading of the securities
comprising the Units until the Company files a Report on Form 8-K which
includes an audited balance sheet reflecting the receipt by the Company of
the
gross proceeds of the Public Offering including the proceeds received by the
Company from the exercise of the Underwriter’s over-allotment option, if the
over-allotment option is exercised prior to the filing of the
Form 8-K.
2.5 Warrants
and Representative’s Warrants. The Representative’s Warrants shall have the same
terms and be in the same form as the Class B Public Warrants.
3. Terms
and
Exercise of Warrants
3.1 Warrant
Price. Each Class B Public Warrant and each Representative’s Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Class B Public Warrant or Representative’s
Warrant and of this Warrant Agreement, to purchase from the Company the number
of Common Stock stated therein, at the price of $5.00
per
whole
share, subject to the adjustments provided in Section 4 hereof and in the
last sentence of this Section 3.1. The term “Warrant Price” as used in this
Warrant Agreement refers to the price per share at which Common Stock may be
purchased at the time a Warrant is exercised. The Company in its sole discretion
may lower the Warrant Price at any time prior to the Expiration
Date.
3.2 Duration
of Warrants. A Warrant may be exercised only during the period (“Exercise
Period”) commencing on the later of the consummation by the Company of a merger,
capital stock exchange, asset acquisition or other similar business combination
(“Business Combination”) (as described more fully in the Company’s Registration
Statement) or [__], 2007, and terminating at 5:00 p.m., New York City time
on
the earlier to occur of (i) [__], 2013 or (ii) the date fixed for redemption
of
the Warrants as provided in Section 6 of this Agreement (“Expiration
Date”). Except with respect to the right to receive the Redemption Price (as set
forth in Section 6 hereunder), each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and all rights
in
respect thereof under this Agreement shall cease at the close of business
on the
Expiration Date. The Company in its sole discretion may extend the duration
of
the Warrants by delaying the Expiration Date. Notwithstanding
the foregoing, a Warrant may expire unexercised regardless of whether a
registration statement is currently effective under the Act with respect
to the
Common Stock issuable upon exercise of the Warrants.
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject to the provisions of the Warrant and this Warrant Agreement, a Warrant,
when countersigned by the Warrant Agent, may be exercised by the registered
holder thereof by surrendering it, at the office of the Warrant Agent, or at
the
office of its successor as Warrant Agent, in the Borough of Manhattan, City
and
State of New York, with the subscription form, as set forth in the Warrant,
duly
executed, and (i) by paying in full, in lawful money of the United States,
in cash, good certified check or good bank draft payable to the order of the
Company (or as otherwise agreed to by the Company), the Warrant Price for each
full share of Common Stock as to which the Warrant is exercised and any and
all
applicable taxes due in connection with the exercise of the Warrant, the
exchange of the Warrant for the Common Stock, and the issuance of the Common
Stock or (ii) in the event that the Board of Directors of the Company, in
their sole discretion, determine that the Warrants may be exercised on a
“cashless basis”, by surrendering his or her Warrant for that number of shares
of Common Stock equal to the quotient obtained by dividing (x) the product
of the number of shares of Common Stock underlying the Warrant, multiplied
by
the difference between the Warrant Price and the “Fair Market Value” (defined
below) by (y) the Fair Market Value. The “Fair Market Value” shall mean the
average reported last sale price of the Common Stock for the 10 trading days
ending on the third business day prior to the date on which the notice of
redemption is sent to holders of Warrant pursuant to Section 6 hereof or in
connection with the foregoing sentence, the date of exercise of the
Warrant.
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3.3.2 Issuance
of Certificates. As soon as practicable after the exercise of any Warrant and
the clearance of the funds in payment of the Warrant Price, the Company shall
issue to the registered holder of such Warrant a certificate or certificates
for
the number of full shares of Common Stock to which he is entitled, registered
in
such name or names as may be directed by him, her or it, and if such Warrant
shall not have been exercised in full, a new countersigned Warrant for the
number of shares as to which such Warrant shall not have been exercised.
Notwithstanding the foregoing, the Company shall not be obligated to deliver
any
securities pursuant to the exercise of a Warrant unless a registration statement
under the Act with respect to the Common Stock is effective. Warrants may not
be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful.
3.3.3 Valid
Issuance. All Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4 Date
of
Issuance. Each person in whose name any such certificate for Common Stock is
issued shall for all purposes be deemed to have become the holder of record
of
such shares on the date on which the Warrant was surrendered and payment of
the
Warrant Price 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 close of business on
the
next succeeding date on which the stock transfer books are open.
3.3.5 Warrant
Solicitation and Warrant Solicitation Fee.
(a) The
Company has engaged the Representative, on a non-exclusive basis, as its
agents
for the solicitation of the exercise of the Warrants. The Company, at its
cost,
will (i) assist the Representative with respect to such solicitation, if
requested by the Representative, and (ii) provide the Representative, and
direct the Company’s transfer agent and the Warrant Agent to deliver to the
Representative, lists of the record and, to the extent known, beneficial
owners
of the Warrants. The Company hereby instructs the Warrant Agent to cooperate
with the Representative in every respect in connection with the Representative’s
solicitation activities, including, but not limited to, providing to the
Representative, at the Company’s cost, a list of record holders of the Warrants
and circulating a prospectus or offering circular disclosing the compensation
arrangements referenced in Section 3.3.5(b) below to holders of the
Warrants at the time of exercise of the Warrants. In addition to the conditions
set forth in Section 3.3.5(b), the Representative shall accept payment of
the warrant solicitation fee provided in Section 3.3.5(b) only if they have
provided bona fide services to the Company in connection with the exercise
of
the Warrants and only to the extent that an investor who exercises his Warrants
specifically designates, in writing, that the Representative solicited his
exercise. In addition to soliciting, either orally or in writing, the exercise
of Warrants by a Warrant holder, such services may also include disseminating
information, either orally or in writing, to Warrant holders about the Company
or the market for the Company’s securities, or assisting in the processing of
the exercise of Warrants.
(b) In
each
instance in which a Warrant is exercised, the Warrant Agent shall promptly
give
written notice of such exercise to the Company and the Representative (“Warrant
Agent’s Exercise Notice”). If, upon the exercise of any Warrant more than one
year from the effective date of the Registration Statement, (i) the market
price of the Company’s Common Stock is greater than the Warrant Price,
(ii) disclosure of compensation arrangements between the Company and the
Representative with respect to the solicitation of the exercise of the Warrants
was made both at the time of the Public Offering and at the time of exercise
(by
delivery of the Prospectus or as otherwise required by applicable law, rule
or
regulation), (iii) the holder of the Warrant confirms in writing that the
exercise of the Warrant was solicited by the Representative, (iv) the
Warrant was not held in a discretionary account, and (v) the solicitation
of the exercise of the Warrant was not in violation of Regulation M (as
such rule or any successor rule may be in effect as of such time of exercise)
promulgated under the Securities Exchange Act of 1934, as amended, then the
Warrant Agent, simultaneously with the distribution of the Common Stock
underlying the Warrants so exercised in accordance with the instructions
from
the Company following receipt of the proceeds to the Company received upon
exercise of such Warrant(s), shall, on behalf of the Company, pay a fee of
5% of
the Warrant Price to the Representative, provided that the Representative
deliver to the Warrant Agent within ten (10) business days from the date on
which the Representative has received the Warrant Agent’s Exercise Notice, a
certificate that the conditions set forth the preceding clauses (ii),
(iii), (iv) and (v) have been satisfied. Notwithstanding the foregoing, no
fee
will be paid to the Representative with respect to the exercise by the
Underwriters or their affiliates or the Company’s officers or directors of
Warrants purchased by them upon exercise of the Representative’s Warrants and
still held by any of the foregoing for their own account. The Representative
and
the Company may at any time during business hours, examine the records of
the
Warrant Agent, including its ledger of original Warrant certificates returned
to
the Warrant Agent upon exercise of Warrants.
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(c) The
provisions of this Section 3.3.5. may not be modified, amended or deleted
without the prior written consent of the Representative.
4. Adjustments.
4.1 Stock
Dividends - Split-Ups. If after the date hereof, and subject to the provisions
of Section 4.6 below, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in Common Stock, or by a split-up of
Common Stock, or other similar event, then, on the effective date of such stock
dividend, split-up or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be increased in proportion to such
increase in outstanding Common Stock.
4.2 Aggregation
of Shares. If after the date hereof, and subject to the provisions of
Section 4.6, the number of outstanding shares of Common Stock is decreased
by a consolidation, combination, reverse stock split or reclassification of
Common Stock or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar
event, the number of shares of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares of
Common Stock.
4.3 Adjustments
in Exercise Price. Whenever the number of shares of Common Stock purchasable
upon the exercise of the Warrants is adjusted, as provided in Section 4.1
and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by
multiplying such Warrant Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares
of Common Stock so purchasable immediately thereafter.
4.4 Replacement
of Securities upon Reorganization, etc. In case of any reclassification or
reorganization of the outstanding Common Stock (other than a change covered
by
Section 4.1 or 4.2 hereof or that solely affects the par value of such
Common Stock), or in the case of any consolidation of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding Common Stock), or in the case of any merger
or sale or conveyance to another corporation or entity of the assets or other
property of the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon
the
terms and conditions specified in the Warrants and in lieu of the Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented thereby, the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, that the Warrant holder would have received
if such Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a change in
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.
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4.5 Notices
of Changes in Warrant. Upon every adjustment of the Warrant Price or the number
of shares issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the facts
upon
which such calculation is based. Upon the occurrence of any event specified
in
Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall
give written notice to the Warrant holder, at the last address set forth for
such holder in the warrant register, of the record date or the effective date
of
the event. Failure to give such notice, or any defect therein, shall not affect
the legality or validity of such event.
4.6 No
Fractional Shares. Notwithstanding any provision contained in this Warrant
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant to this
Section 4, the holder of any Warrant would be entitled, upon the exercise
of such Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up to the nearest whole number the number of the
Common Stock to be issued to the Warrant holder.
4.7 Form
of
Warrant. The form of Warrant need not be changed because of any adjustment
pursuant to this Section 4, and Warrants issued after such adjustment may
state the same Warrant Price and the same number of shares as is stated in
the
Warrants initially issued pursuant to this Agreement. However, the Company
may
at any time in its sole discretion make any change in the form of Warrant that
the Company may deem appropriate and that does not affect the substance thereof,
and any Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the form as
so
changed.
5. Transfer
and Exchange of Warrants.
5.1 Registration
of Transfer. The Warrant Agent shall register the transfer, from time to time,
of any outstanding Warrant upon the Warrant Register, upon surrender of such
Warrant for transfer, properly endorsed with signatures properly guaranteed
and
accompanied by appropriate instructions for transfer. Upon any such transfer,
a
new Warrant representing an equal aggregate number of Warrants shall be issued
and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so
cancelled shall be delivered by the Warrant Agent to the Company from time
to
time upon request.
5.2 Procedure
for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as
requested by the registered holder of the Warrants so surrendered, representing
an equal aggregate number of Warrants; provided, however, that in the event
that
a Warrant surrendered for transfer bears a restrictive legend, the Warrant
Agent
shall not cancel such Warrant and issue new Warrants in exchange therefor until
the Warrant Agent has received an opinion of counsel acceptable to the Company
stating that such transfer may be made and indicating whether the new Warrants
must also bear a restrictive legend.
5.3 Fractional
Warrants. The Warrant Agent shall not be required to effect any registration
of
transfer or exchange which will result in the issuance of a warrant certificate
for a fraction of a warrant.
5.4 Service
Charges. No service charge shall be made for any exchange or registration of
transfer of Warrants.
5.5 Warrant
Execution and Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement,
the
Warrants required to be issued pursuant to the provisions of this
Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
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6. Redemption.
6.1 Redemption.
Subject to Section 6.4 hereof, the outstanding Warrants may be redeemed, at
the option of the Company, at any time after they become exercisable and
prior
to their expiration, at the office of the Warrant Agent, upon the notice
referred to in Section 6.2., at the price of $.01 per Warrant (“Redemption
Price”), provided that the last sales price of the Common Stock has been at
least $16.00 per share, on each of twenty (20) trading days within any
thirty (30) trading day period ending on the third business day prior to
the date on which notice of redemption is given (“Measurement
Period”). Notwithstanding the foregoing, the Company may not exercise its
redemption rights unless during the Measurement Period and from the end of
the
Measurement Period through the redemption date, the Company has an effective
registration statement with a current prospectus on file with the SEC pursuant
to which the Common Stock underlying the Warrants may be
sold.
6.2 Date
Fixed for, and Notice of, Redemption. In the event the Company shall elect
to
redeem all of the Warrants, the Company shall fix a date for the redemption.
Notice of redemption shall be mailed by first class mail, postage prepaid,
by
the Company not less than 30 days prior to the date fixed for redemption to
the
registered holders of the Warrants to be redeemed at their last addresses as
they shall appear on the registration books. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the registered holder received such notice.
6.3 Exercise
After Notice of Redemption. The Warrants may be exercised in accordance with
Section 3 of this Agreement at any time after notice of redemption shall
have been given by the Company pursuant to Section 6.2. hereof and prior to
the time and date fixed for redemption. On and after the redemption date, the
record holder of the Warrants shall have no further rights except to receive,
upon surrender of the Warrants, the Redemption Price.
6.4 Outstanding
Warrants Only. The Company understands that the redemption rights provided
for
by this Section 6 apply only to outstanding Warrants. To the extent a
person holds rights to purchase Warrants, such purchase rights shall not be
extinguished by redemption. However, once such purchase rights are exercised,
the Company may redeem the Warrants issued upon such exercise provided that
the
criteria for redemption is met.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights
as Stockholder. A Warrant does not entitle the registered holder thereof to
any
of the rights of a stockholder of the Company, including, without limitation,
the right to receive dividends, or other distributions, exercise any preemptive
rights, to vote or to consent or to receive notice as stockholders in respect
of
the meetings of stockholders or the election of directors of the Company or
any
other matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen,
mutilated, or destroyed, the Company and the Warrant Agent may on such terms
as
to indemnity or otherwise as they may in their discretion impose (which shall,
in the case of a mutilated Warrant, include the surrender thereof), issue a
new
Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a substitute
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated, or destroyed Warrant shall be at any time enforceable by
anyone.
7.3 Reservation
of Common Stock. The Company shall at all times reserve and keep available
a
number of its authorized but unissued Common Stock that will be sufficient to
permit the exercise in full of all outstanding Warrants issued pursuant to
this
Agreement.
7.4 Registration
of Common Stock. The Company agrees that prior to the commencement of the
Exercise Period, it shall file with the Securities and Exchange Commission
a
post-effective amendment to the Registration Statement, or a new registration
statement, for the registration, under the Act, of, and it shall take such
action as is necessary to qualify for sale, in those states in which the
Warrants were initially offered by the Company, the Common Stock issuable upon
exercise of the Warrants. In either case, the Company will use its best efforts
to cause the same to become effective and to maintain the effectiveness of
such
registration statement until the expiration of the Warrants in accordance with
the provisions of this Agreement. In no event will the registered holder of
a
Warrant be entitled to receive a net-cash settlement in lieu of physical
settlement in shares of Common Stock, regardless of whether the Common Stock
underlying the Warrants is registered pursuant to an effective registration
statement.
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8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes. The Company will from time to time promptly pay all taxes and charges
that may be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 Resignation,
Consolidation or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter
appointed, may resign its duties and be discharged from all further duties
and
liabilities hereunder after giving sixty (60) days’ notice in writing to
the Company. If the office of the Warrant Agent becomes vacant by resignation
or
incapacity to act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such resignation or incapacity by the Warrant Agent or by the holder
of the Warrant (who shall, with such notice, submit his Warrant for inspection
by the Company), then the holder of any Warrant may apply to the Supreme Court
of the State of New York for the County of New York for the appointment of
a
successor Warrant Agent at the Company’s cost. Any successor Warrant Agent,
whether appointed by the Company or by such court, shall be a corporation
organized and existing under the laws of the State of New York, in good standing
and having its principal office in the Borough of Manhattan, City and State
of
New York, and authorized under such laws to exercise corporate trust powers
and
subject to supervision or examination by federal or state authority. After
appointment, any successor Warrant Agent shall be vested with all the authority,
powers, rights, immunities, duties, and obligations of its predecessor Warrant
Agent with like effect as if originally named as Warrant Agent hereunder,
without any further act or deed; but if for any reason it becomes necessary
or
appropriate, the predecessor Warrant Agent shall execute and deliver, at the
expense of the Company, an instrument transferring to such successor Warrant
Agent all the authority, powers, and rights of such predecessor Warrant Agent
hereunder; and upon request of any successor Warrant Agent the Company shall
make, execute, acknowledge, and deliver any and all instruments in writing
for
more fully and effectually vesting in and confirming to such successor Warrant
Agent all such authority, powers, rights, immunities, duties, and
obligations.
8.2.2 Notice
of
Successor Warrant Agent. In the event a successor Warrant Agent shall be
appointed, the Company shall give notice thereof to the predecessor Warrant
Agent and the transfer agent for the Common Stock not later than the effective
date of any such appointment.
8.2.3 Merger
or
Consolidation of Warrant Agent. Any corporation into which the Warrant Agent
may
be merged or with which it may be consolidated or any corporation resulting
from
any merger or consolidation to which the Warrant Agent shall be a party to
and
shall be the successor Warrant Agent under this Agreement without any further
act.
8.3 Fees
and
Expenses of Warrant Agent.
8.3.1 Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration for its
services as such Warrant Agent hereunder and will reimburse the Warrant Agent
upon demand for all expenditures that the Warrant Agent may reasonably incur
in
the execution of its duties hereunder.
8.3.2 Further
Assurances. The Company agrees to perform, execute, acknowledge, and deliver
or
cause to be performed, executed, acknowledged, and delivered all such further
and other acts, instruments, and assurances as may reasonably be required by
the
Warrant Agent for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement. Whenever in the performance of its duties under this
Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to taking
or
suffering any action hereunder, such fact or matter (unless other evidence
in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the Chief Executive
Officer, Chief Financial Officer, or Secretary of the Company and delivered
to
the Warrant Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this
Agreement.
7
8.4.2 Indemnity.
The Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement, except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The Warrant Agent shall have no responsibility with respect to the validity
of
this Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Warrant; nor shall it be responsible to make any adjustments required
under the provisions of Section 4 hereof or responsible for the manner,
method, or amount of any such adjustment or the ascertaining of the existence
of
facts that would require any such adjustment; nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any Common Stock to be issued pursuant to this Agreement or
any
Warrant or as to whether any Common Stock will when issued be valid and fully
paid and nonassessable.
8.5 Acceptance
of Agency. The Warrant Agent hereby accepts the agency established by this
Agreement and agrees to perform the same upon the terms and conditions herein
set forth and among other things, shall account promptly to the Company with
respect to Warrants exercised and concurrently account for, and pay to the
Company, all moneys received by the Warrant Agent for the purchase of shares
of
the Company’s Common Stock (less any warrant solicitation fee due to the
Representative pursuant to Section 3.3.5 herein) through the exercise of
Warrants.
9. Miscellaneous
Provisions.
9.1 Successors.
All the covenants and provisions of this Agreement by or for the benefit of
the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
9.2 Notices.
Any notice, statement or demand authorized by this Warrant Agreement to be
given
or made by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be sufficiently given when so delivered if by hand or overnight
delivery or if sent by certified mail or private courier service within five
days after deposit of such notice, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent), as
follows:
000
Xxxxx
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxx, Secretary and General Counsel
Any
notice, statement or demand authorized by this Agreement to be given or made
by
the holder of any Warrant or by the Company to or on the Warrant Agent shall
be
sufficiently given when so delivered if by hand or overnight delivery or if
sent
by certified mail or private courier service within five days after deposit
of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Co
00
Xxxxxxx Xxxxx, 0xx xxxxx
Xxx
Xxxx
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Compliance Department
8
with
a
copy in either case to:
Cozen
X’Xxxxxx
The
Army
& Navy Club Building
0000
X
Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xx Xxxxxxx, Esq.
and
I-Bankers
Securities, Inc.
0000
Xxxxxx Xxxxx Xxxxx
Xxxx
Xxxxx, Xxxxx 00000
Attn:
[__________]
9.3 Applicable
law. The validity, interpretation, and performance of this Agreement and of
the
Warrants shall be governed in all respects by the laws of the State of Delaware,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way
to
this Agreement shall be brought and enforced in the courts of the State of
Delaware or the United States District Court for Delaware, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any such process or summons to be served upon
the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it
at
the address set forth in Section 9.2 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in any action,
proceeding or claim.
9.4 Persons
Having Rights under this Agreement. Nothing in this Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended,
or
shall be construed, to confer upon, or give to, any person or corporation
other
than the parties hereto and the registered holders of the Warrants and, for
the
purposes of Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2 hereof, the
Representative, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. The Representative shall be deemed to be a third-party beneficiary
of
this Agreement with respect to Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto (and the Representative with respect to the
Sections 3.3.5, 6.1, 6.4, 7.4 and 9.2 hereof) and their successors and
assigns and of the registered holders of the Warrants.
9.5 Examination
of the Warrant Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
City and State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his Warrant
for
inspection by it.
9.6 Counterparts.
This Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
9.7 Effect
of
Headings. The Section headings herein are for convenience only and are not
part
of this Warrant Agreement and shall not affect the interpretation
thereof.
9
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
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| MIDDLE KINGDOM ALLIANCE CORP. | ||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxxxxxx III, Chief Executive Officer |
||
|
CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
|
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| |
|
|
| By: | ||
|
Name: Xxxxxx
Xxxxxx
Title: Chairman
|
||
10
