Contract
EXHIBIT
4.1
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED.
THE
TRANSFERABILITY OF THIS WARRANT IS ALSO RESTRICTED BY THE TERMS OF A LOCK UP
AGREEMENT DATED AS OF FEBRUARY 22, 2009 BETWEEN THE ISSUER AND
THE HOLDER.
FORM OF
AMENDED AND RESTATED [SERIES A] WARRANT TO PURCHASE
SHARES OF
COMMON STOCK
OF
No.: Number
of Shares:
Date of
Issuance:
FOR VALUE
RECEIVED, the undersigned, Fushi Copperweld, Inc., a Nevada corporation
(together with its successors and assigns, the “Issuer”), hereby
certifies that
[ ]
or its registered permitted assigns (the “Holder”) is entitled
to subscribe for and purchase, during the Term (as hereinafter defined), up to
[ ]
shares (subject to adjustment as hereinafter provided) of the duly authorized,
validly issued, fully paid and non-assessable Common Stock of the Issuer, at an
exercise price per share equal to the Warrant Price then in effect, subject,
however, to the provisions and upon the terms and conditions hereinafter set
forth. “Warrant Price”
initially means [ ], as such price may be adjusted
from time to time as shall result from the adjustments specified in this
Warrant, including Section 4 hereto. Capitalized terms used in this
Warrant and not otherwise defined herein shall have the respective meanings
specified in Section 8 hereof.
(A) = the
Current Market Price on the trading day preceding the date of such
election;
(B) = the
Warrant Price, as adjusted; and
(X) = the number of shares of Warrant
Stock issuable upon exercise of the Warrants in accordance with the terms of
this Warrant
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(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder’s own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or an
exemption from registration, under the Securities Act and any applicable state
securities laws.
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(ii) Except
as provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED.
(iii) The
Issuer agrees to reissue this Warrant or certificates representing any of the
Warrant Stock, without the legend set forth above if at such time, prior to
making any transfer of any such securities, the Holder shall give written notice
to the Issuer describing the manner and terms of such transfer. Such
proposed transfer will not be effected until: (a) either (i) the Issuer has
received an opinion of counsel reasonably satisfactory to the Issuer, to the
effect that the registration of such securities under the Securities Act is not
required in connection with such proposed transfer, (ii) a registration
statement under the Securities Act covering such proposed disposition has been
filed by the Issuer with the SEC and has been declared effective by the SEC and
continues to be in effect, (iii) the Issuer has received other
evidence reasonably satisfactory to the Issuer that such registration and
qualification under the Securities Act and state securities laws are not
required, or (iv) the Holder provides the Issuer with reasonable assurances that
such security can be sold pursuant to Rule 144 under the Securities Act; and (b)
either (i) the Issuer has received an opinion of counsel reasonably satisfactory
to the Issuer, to the effect that registration or qualification under the
securities or “blue sky” laws of any state is not required in connection with
such proposed disposition, or (ii) compliance with applicable state securities
or “blue sky” laws has been effected or a valid exemption exists with respect
thereto. The Issuer will respond to any such notice from a holder
within three (3) Trading Days. In the case of any proposed transfer
under this Section 2(f), the Issuer will use reasonable efforts to comply with
any such applicable state securities or “blue sky” laws, but shall in no event
be required, (x) to qualify to do business in any state where it is not then
qualified, (y) to take any action that would subject it to tax or to the general
service of process in any state where it is not then subject, or (z) to comply
with state securities or “blue sky” laws of any state for which registration by
coordination is unavailable to the Issuer. The restrictions on
transfer contained in this Section 2(f) shall be in addition to, and not by way
of limitation of, any other restrictions on transfer contained in any other
section of this Warrant. Whenever a certificate representing the
Warrant Stock is required to be issued to the Holder without a legend, in lieu
of delivering physical certificates representing the Warrant Stock, the Issuer
shall cause its transfer agent to electronically transmit the Warrant Stock to
the Holder by crediting the account of the Holder or Holder’s Prime Broker with
DTC through its DWAC system (to the extent not inconsistent with any provisions
of this Warrant or the Purchase Agreement).
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(iv) In
addition, for so long as the Lock-Up Agreement continues to be in effect this
Warrant and all certificates representing shares of Warrant Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in substantially the
following form:
THE
TRANSFERABILITY OF THIS WARRANT IS ALSO RESTRICTED BY THE TERMS OF A LOCK UP
AGREEMENT DATED AS OF FEBRUARY 22, 2009 BETWEEN THE ISSUER AND
THE HOLDER.
The
Issuer agrees to reissue this Warrant or certificates representing any of the
Warrant Stock, without the legend set forth above at the request of the Holder
after the restrictions set forth in the Lock-Up Agreement shall have
expired.
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(i) In
case the Issuer after the Original Issue Date shall do any of the following
(each, a “Triggering
Event”): (a) consolidate or merge with or into any other Person and the
Issuer shall not be the continuing or surviving corporation of such
consolidation or merger, or (b) permit any other Person to consolidate with or
merge into the Issuer and the Issuer shall be the continuing or surviving Person
but, in connection with such consolidation or merger, any Capital Stock of the
Issuer shall be changed into or exchanged for Securities of any other Person or
cash or any other property, or (c) transfer all or substantially all of its
properties or assets to any other Person, or (d) effect a capital reorganization
or reclassification of its Capital Stock, then, and in the case of each such
Triggering Event, proper provision shall be made to the Warrant Price and the
number of shares of Warrant Stock that may be purchased upon exercise of this
Warrant so that, upon the basis and the terms and in the manner provided in this
Warrant, the Holder of this Warrant shall be entitled upon the exercise hereof
at any time after the consummation of such Triggering Event, to the extent this
Warrant is not exercised prior to such Triggering Event, to receive at the
Warrant Price in effect at the time immediately prior to the consummation of
such Triggering Event, in lieu of the Common Stock issuable upon such exercise
of this Warrant prior to such Triggering Event, the Securities, cash and
property to which such Holder would have been entitled upon the consummation of
such Triggering Event if such Holder had exercised the rights represented by
this Warrant immediately prior thereto (including the right of a shareholder to
elect the type of consideration it will receive upon a Triggering Event),
subject to adjustments (subsequent to such corporate action) as nearly
equivalent as possible to the adjustments provided for elsewhere in this Section
4. Immediately upon the occurrence of a Triggering Event, the Issuer
shall notify the Holder in writing of such Triggering Event and provide the
calculations in determining the number of shares of Warrant Stock issuable upon
exercise of the new warrant and the adjusted Warrant Price. Upon the
Holder’s request, the continuing or surviving corporation as a result of such
Triggering Event shall issue to the Holder a new warrant of like tenor
evidencing the right to purchase the adjusted number of shares of Warrant Stock
and the adjusted Warrant Price pursuant to the terms and provisions of this
Section 4(a)(i). Notwithstanding the foregoing to the contrary, this
Section 4(a)(i) shall only apply if the surviving entity pursuant to any such
Triggering Event is a company that has a class of equity securities registered
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
its common stock is listed or quoted on a national securities exchange, national
automated quotation system or the OTC Bulletin Board.
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(ii) In
the event that the Holder has elected not to exercise this Warrant prior to the
consummation of a Triggering Event, so long as the surviving entity pursuant to
any Triggering Event is a company that has a class of equity securities
registered pursuant to the Exchange Act and its common stock is listed or quoted
on a national securities exchange, national automated quotation system or the
OTC Bulletin Board, the surviving entity and/or each Person (other than the
Issuer) which may be required to deliver any Securities, cash or property upon
the exercise of this Warrant as provided herein shall assume, by written
instrument delivered to, and reasonably satisfactory to, the Holder of this
Warrant, (A) the obligations of the Issuer under this Warrant (and if the Issuer
shall survive the consummation of such Triggering Event, such assumption shall
be in addition to, and shall not release the Issuer from, any continuing
obligations of the Issuer under this Warrant) and (B) the obligation to deliver
to such Holder such Securities, cash or property as, in accordance with the
foregoing provisions of this subsection (a).
(i) make
or issue or set a record date for the holders of the Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(iii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
then (1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock for
which this Warrant is exercisable immediately after such
adjustment.
(i) cash,
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(ii) any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash, Common Stock
Equivalents or Additional Shares of Common Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever,
then (1)
the number of shares of Common Stock for which this Warrant is exercisable shall
be adjusted to equal the product of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such adjustment
multiplied by a fraction (A) the numerator of which shall be the Per Share
Market Value of Common Stock at the date of taking such record and (B) the
denominator of which shall be such Per Share Market Value minus the amount
allocable to one share of Common Stock of any such cash so distributable and of
the fair value (as determined in good faith by the Board of Directors of the
Issuer and supported by an opinion from an investment banking firm mutually
agreed upon by the Issuer and the Holder) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or other
subscription or purchase rights so distributable, and (2) the Warrant Price then
in effect shall be adjusted to equal (A) the Warrant Price then in effect
multiplied by the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to the adjustment divided by (B) the number of
shares of Common Stock for which this Warrant is exercisable immediately after
such adjustment. A reclassification of the Common Stock (other than a
change in par value, or from par value to no par value or from no par value to
par value) into shares of Common Stock and shares of any other class of stock
shall be deemed a distribution by the Issuer to the holders of its Common Stock
of such shares of such other class of stock within the meaning of this Section
4(c) and, if the outstanding shares of Common Stock shall be changed into a
larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as
the case may be, of the outstanding shares of Common Stock within the meaning of
Section 4(b).
8
9
(b) Notwithstanding
anything to the contrary set forth in this [Series A] Warrant, at no time may a
Holder of this [Series A] Warrant exercise their [Series A] Warrant if the
number of shares of Common Stock to be issued pursuant to such exercise would
cause the number of shares of Common Stock owned by such Holder at such time to
exceed, when aggregated with all other shares of Common Stock owned by such
Holder and its affiliates at such time, the number of shares of Common Stock
which would result in such Holder, its affiliates, any investment manager having
discretionary investment authority over the accounts or assets of such Holder,
or any other persons whose beneficial ownership of Common Stock would be
aggregated with such Holder’s for purposes of Section 13(d) and Section 16 of
the Exchange Act, beneficially owning (as determined in accordance with Section
13(d) of the Exchange Act and the rules thereunder) in excess of 9.99% of the
then issued and outstanding shares of Common Stock.
“Board” shall mean the
Board of Directors of the Issuer.
“Certificate of
Incorporation” means the Certificate of Incorporation of the Issuer as in
effect on the Original Issue Date, and as hereafter from time to time amended,
modified, supplemented or restated in accordance with the terms hereof and
thereof and pursuant to applicable law.
“Capital Stock” means
and includes (i) any and all shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including,
without limitation, shares of preferred or preference stock, (ii) all
partnership interests (whether general or limited) in any Person which is a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
“Current Market Price”
per share of Common Stock on any date shall be deemed to be the closing price of
a single share of Common Stock on the trading day immediately preceding the date
in question as reported on the NASDAQ Global Market. If on any such dates the
Common Stock is not listed or admitted to trading on the NASDAQ Global Market or
any other national securities exchange and is not quoted by NASDAQ or any
similar organization, the fair value of a share of Common Stock on such date, as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error, shall be
used.
“Governmental
Authority” means any governmental, regulatory or self-regulatory entity,
department, body, official, authority, commission, board, agency or
instrumentality, whether federal, state or local, and whether domestic or
foreign.
“Holders” mean the
Persons who shall from time to time own any Warrant. The term
“Holder” means one of the Holders.
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“Independent
Appraiser” means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial statements
of the Issuer) that is regularly engaged in the business of appraising the
Capital Stock or assets of corporations or other entities as going concerns, and
which is not affiliated with either the Issuer or the Holder of any
Warrant.
“Issuer” means Fushi
Copperweld, Inc., a Delaware corporation, and its successors.
“Lock-Up Agreement”
means the Lock-Up Agreement dated as of the date hereof between the Holder and
the Issuer.
“Majority Holders”
means at any time the Holders of [Series A] Warrants exercisable for a majority
of the shares of Warrant Stock issuable under the [Series A] Warrants at the
time outstanding.
“Original Issue Date”
means February 22, 2009.
“OTC Bulletin Board”
means the over-the-counter electronic bulletin board.
“Other Common” means
any other Capital Stock of the Issuer of any class which shall be authorized at
any time after the date of this Warrant (other than Common Stock) and which
shall have the right to participate in the distribution of earnings and assets
of the Issuer without limitation as to amount.
“Outstanding Common
Stock” means, at any given time, the aggregate amount of outstanding
shares of Common Stock, assuming full exercise, conversion or exchange (as
applicable) of all options, warrants and other Securities which are convertible
into or exercisable or exchangeable for, and any right to subscribe for, shares
of Common Stock that are outstanding at such time.
"Permitted
Transferee" means (i) any other
Investor (as defined in the Purchase Agreement), (ii) any affiliate or employee
of the Holder, (iii) Xx. Xxxxxxx Xxxxxx, and (iv) any consultant retained by the
Holder as of the date hereof.
“Person” means an
individual, corporation, limited liability company, partnership, joint stock
company, trust, unincorporated organization, joint venture, Governmental
Authority or other entity of whatever nature.
“Per Share Market
Value” means on any particular date (a) the last closing price per share
of the Common Stock on such date on the NASDAQ or another registered national
stock exchange on which the Common Stock is then listed, or if there is no
closing price on such date, then the closing bid price on such date, or if there
is no closing bid price on such date, then the closing price on such exchange or
quotation system on the date nearest preceding such date, or (b) if the Common
Stock is not listed then on the NASDAQ or any registered national stock
exchange, the last closing price for a share of Common Stock in the
over-the-counter market, as reported by the OTC Bulletin Board or in the
National Quotation Bureau Incorporated or similar organization or agency
succeeding to its functions of reporting prices at the close of business on such
date, or if there is no closing price on such date, then
the closing bid price on such date, or (c) if the Common Stock is not
then reported by the OTC Bulletin Board or the National Quotation Bureau
Incorporated (or similar organization or agency succeeding to its functions of
reporting prices), then the average of the “Pink Sheet” quotes for the five (5)
Trading Days preceding such date of determination, or (d) if the Common Stock is
not then publicly traded, the fair market value of a share of Common Stock as
determined by an Independent Appraiser selected in good faith by the Majority
Holders; provided, however, that the
Issuer, after receipt of the determination by such Independent Appraiser, shall
have the right to select an additional Independent Appraiser, in which case, the
fair market value shall be equal to the average of the determinations by each
such Independent Appraiser; and provided, further, that all
determinations of the Per Share Market Value shall be appropriately adjusted for
any stock dividends, stock splits or other similar transactions during such
period. The determination of fair market value by an Independent
Appraiser shall be based upon the fair market value of the Issuer determined on
a going concern basis as between a willing buyer and a willing seller and taking
into account all relevant factors determinative of value, and shall be final and
binding on all parties. In determining the fair market value of any
shares of Common Stock, appropriate consideration shall be given to any
restrictions on transfer of the Common Stock imposed by agreement or by federal
or state securities laws, or to the existence or absence of, or any limitations
on, voting rights.
11
“Purchase Agreement”
means the Securities Purchase Agreement dated as of February 22, 2009, among the
Issuer and the purchasers named therein.
“Registration Rights
Agreement”
means the Registration Rights Agreement dated as of February 22,
2009, among the Issuer and the purchasers named therein.
“SEC” means the U.S.
Securities and Exchange Commission.
“Securities” means any
debt or equity securities of the Issuer, whether now or hereafter authorized,
any instrument convertible into or exchangeable for Securities or a Security,
and any option, warrant or other right to purchase or acquire any
Security. “Security” means one of the Securities.
“Securities Act” means
the Securities Act of 1933, as amended, or any similar federal statute then in
effect.
“Subsidiary” means any
corporation at least 50% of whose outstanding Voting Stock shall at the time be
owned directly or indirectly by the Issuer or by one or more of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
“Term” has the meaning
specified in Section 1 hereof.
“Trading Day” means
(a) a day on which the Common Stock is traded on the NASDAQ, or (b) if the
Common Stock is not traded on the NASDAQ, a day on which the Common Stock is
quoted in the over-the-counter market as reported by the National Quotation
Bureau Incorporated (or any similar organization or agency succeeding its
functions of reporting prices); provided, however, that in the
event that the Common Stock is not listed or quoted as set forth in (a) or (b)
hereof, then Trading Day shall mean any day except Saturday, Sunday and any day
which shall be a legal holiday 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.
12
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NASDAQ Capital Market, the NASDAQ
Global Market, the NASDAQ Global Select Market, the New York Stock Exchange or
the OTC Bulletin Board.
“Voting Stock” means,
as applied to the Capital Stock of any corporation, Capital Stock of any class
or classes (however designated) having ordinary voting power for the election of
a majority of the members of the Board of Directors (or other governing body) of
such corporation, other than Capital Stock having such power only by reason of
the happening of a contingency.
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed
or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m.
New York City time to 4:02 p.m. New York City time); (b) if the OTC
Bulletin Board is not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the OTC Bulletin
Board; (c) if the Common Stock is not then listed or quoted on the OTC Bulletin
Board and if prices for the Common Stock are then reported in the "Pink Sheets"
published by Pink Sheets, LLC (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of the
Common Stock so reported; or (d) in all other cases, the fair market value of a
share of Common Stock as determined by an Independent Appraiser selected in good
faith by the Majority Holders and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“Warrants” means the
[Series A] Warrants issued and sold pursuant to the Purchase Agreement,
including, without limitation, this Warrant, and any other warrants of like
tenor issued in substitution or exchange for any thereof pursuant to the
provisions of Section 2(c) or 2(d) hereof or of any of such other
Warrants.
“Warrant Price”
initially means [ ], as such price may be adjusted from
time to time as shall result from the adjustments specified in this Warrant,
including Section 4 hereto.
“Warrant Share Number”
means at any time the aggregate number of shares of Warrant Stock which may at
such time be purchased upon exercise of this Warrant, after giving effect to all
prior adjustments and increases to such number made or required to be made under
the terms hereof.
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“Warrant Stock” means
Common Stock issuable upon exercise of this Warrant.
(a) the
Issuer shall make any distributions to the holders of Common Stock;
or
(b) the
Issuer shall authorize the granting to all holders of its Common Stock of rights
to subscribe for or purchase any shares of Capital Stock of any class or other
rights; or
(c) there
shall be any reclassification of the Capital Stock of the Issuer;
or
(d) there
shall be any capital reorganization by the Issuer; or
(e) there
shall be any (i) consolidation or merger involving the Issuer or (ii) sale,
transfer or other disposition of all or substantially all of the Issuer’s
property, assets or business (except a merger or other reorganization in which
the Issuer shall be the surviving corporation and its shares of Capital Stock
shall continue to be outstanding and unchanged and except a consolidation,
merger, sale, transfer or other disposition involving a wholly-owned
Subsidiary); or
(f) there
shall be a voluntary or involuntary dissolution, liquidation or winding-up of
the Issuer or any partial liquidation of the Issuer or distribution to holders
of Common Stock;
then, in
each of such cases, the Issuer shall give written notice to the Holder of the
date on which (i) the books of the Issuer shall close or a record shall be taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take
place. Such notice also shall specify the date as of which the
holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the action in question
and not less than ten (10) days prior to the record date or the date on which
the Issuer’s transfer books are closed in respect thereto.
11. Governing Law;
Jurisdiction. This Warrant shall be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction. This
Warrant shall not be interpreted or construed with any presumption against the
party causing this Warrant to be drafted. The Issuer and the Holder
agree that venue for any dispute arising under this Warrant will lie exclusively
in the state or federal courts located in New York County, New York, and the
parties irrevocably waive any right to raise forum non conveniens or any other
argument that New York is not the proper venue. The Issuer and the
Holder irrevocably consent to personal jurisdiction in the state and federal
courts of the state of New York. The Issuer and the Holder consent to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Warrant and agree that such service shall constitute good and sufficient service
of process and notice thereof. Nothing in this Section 11 shall
affect or limit any right to serve process in any other manner permitted by
law. The Issuer and the Holder hereby agree that the prevailing party
in any suit, action or proceeding arising out of or relating to this Warrant or
the Purchase Agreement, shall be entitled to reimbursement for reasonable legal
fees from the non-prevailing party. The parties hereby waive all
rights to a trial by jury.
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If
to the Issuer:
|
1
Shuang Qiang Road
Jinzhou,
Dalian
People’s
Republic of China 116100
Attention:
Xxxxx Xxxx
Tel.
No.: 00-000-0000-000
Fax
No.: 00-00-0000-0000
|
with
copies (which copies
shall
not constitute notice)
to:
|
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxx, Esq.
Tel.
No.: (000) 000-0000, ext. 102
Fax
No.: (000) 000-0000
|
If
to any Holder:
|
At
the address or facsimile number of such Holder appearing on the books of
the Issuer.
|
15
Any party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other
party hereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Issuer has executed this Warrant as of the day and year
first above written.
By:_________________________
|
|
Name:
Xxxxx Xxxx
|
|
Title:
President
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17
EXERCISE
FORM
[SERIES
A] WARRANT
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of
________________________________ covered by the within Warrant.
Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
The
undersigned is an “accredited investor” as defined in Regulation D under the
Securities Act of 1933, as amended.
Dated:
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Name
of Warrant Holder:
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(Print)
|
||||
(By:)
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||||
(Name:)
|
||||
(Title:)
|
Signature
must conform in all respects to name of Warrant Holder as specified on the
face of the Warrant.
18
FOR VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and does
irrevocably constitute and appoint _____________, attorney, to transfer the said
Warrant on the books of the within named corporation.
The
assignee is a Permitted Transferee within the meaning of Section 8 of this
Warrant.
Dated:
|
Name
of Warrant Holder:
|
|||
(Print)
|
||||
(By:)
|
||||
(Name:)
|
||||
(Title:)
|
Signature
must conform in all respects to name of Warrant Holder as specified on the face
of the Warrant.
19
PARTIAL
ASSIGNMENT
FOR VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
The
assignee is a Permitted Transferee within the meaning of Section 8 of this
Warrant.
Dated:
|
Name
of Warrant Holder:
|
|||
(Print)
|
||||
(By:)
|
||||
(Name:)
|
||||
(Title:)
|
Signature
must conform in all respects to name of Warrant Holder as specified on the face
of the Warrant.
20
This
Warrant No. ______ canceled (or transferred or exchanged) this _____ day of
___________, _____, shares of Common Stock issued therefor in the name of
_______________, Warrant No. ______ issued for ____ shares of Common
Stock in the name of _______________.
21