Contract
NEITHER
THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON THE EXERCISE HEREOF
EVIDENCED BY THIS INSTRUMENT MAY BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (“1933 ACT”) AND APPLICABLE SECURITIES LAWS OF ANY STATE OR
JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE
REGISTERED HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL
NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN
PROVIDED.
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September
3, 2008
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For
the Purchase of
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shares of
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Common
Stock
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WARRANT
FOR THE PURCHASE OF
SHARES
OF COMMON STOCK
OF
Asia
Select Acquisition II Corp., a Delaware corporation (“Company”), hereby
certifies that for value received, _____________, or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company, at any time or from time to time during the period commencing on
the consummation by the Company of an initial business combination (“Business
Combination”) and ending at 5:00 p.m. eastern time on the fifth anniversary of
the consummation of the Business Combination (“Expiration Date”), _______ shares
of common stock (“Common Stock”), $.0001 par value, of the Company (“Warrant
Shares”), at an exercise price equal to $1.00 per share. The number of shares of
Common Stock purchasable upon exercise of this Warrant, and the exercise price
per share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the “Warrant Shares” and the “Exercise
Price,” respectively.
IT IS
AGREED:
1. Method of
Exercise.
1.1 Notice to the
Company. The Warrant may be exercised in whole or in part by
written notice in the form attached hereto as Exhibit A directed to the Company
at its principal place of business accompanied by full payment as hereinafter
provided of the Exercise Price for the number of Warrant Shares specified in the
notice.
1.2 Delivery of Warrant
Shares. The Company shall deliver a certificate for the
Warrant Shares to the Holder as soon as practicable after payment
therefor.
1.3 Payment of Purchase
Price. The Holder shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company. The Company shall not be required to deliver
certificates for Warrant Shares until the Company has confirmed the receipt of
good and available funds in payment of the Exercise Price thereof.
2. Company
Representations. The Company hereby represents and warrants to
the Holder that:
(a) the
Company, by appropriate and all required action, is duly authorized to issue
this Warrant; and
(b) the
Warrant Shares, when issued and delivered by the Company to the Holder in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
3. Holder
Representations. The Holder hereby represents and warrants to
the Company that:
(a) it
is acquiring the Warrant and shall acquire the Warrant Shares for its own
account and not with a view towards the distribution thereof;
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(b) it
has received a copy of all reports and documents required to be filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, within the last 24 months and all reports
issued by the Company to its stockholders;
(c) it
understands that it must bear the economic risk of the investment in the Warrant
Shares, which cannot be sold unless they are registered under the Securities Act
of 1933 (“1933 Act”) or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Warrant Shares for sale under
the 1933 Act;
(d) it
is an accredited investor within the meaning of Rule 501(a) promulgated under
the 1933 Act;
(e) it
has had both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to obtain
any additional information to the extent the Company possesses or may possess
such information or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant to
clause (b) above;
(f) it
is aware that the Company shall place stop transfer orders with its transfer
agent against the transfer of the Warrant Shares in the absence of registration
under the 1933 Act; and
(g) the
certificates evidencing the Warrant Shares shall bear the following
legend:
“The
shares represented by this certificate have been acquired for investment and
have not been registered under the Securities Act of 1933. The shares
may not be sold or transferred in the absence of such registration or an
exemption therefrom under said Act.”
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4. Restriction on Transfer of
Warrant Shares.
4.1 Securities Act
Compliance. Anything in this Agreement to the contrary
notwithstanding, Holder hereby agrees that it shall not sell, transfer by any
means or otherwise dispose of the Warrant Shares acquired by it without
registration under the 1933 Act, or in the event that they are not so
registered, unless (i) an exemption from the 1933 Act registration
requirements is available thereunder, and (ii) the Holder has furnished the
Company with notice of such proposed transfer and the Company=s
legal counsel, in its reasonable opinion, shall deem such proposed transfer to
be so exempt.
4.2 Lock-up. Anything
in this Agreement to the contrary notwithstanding, Holder hereby agrees that it
shall not sell, transfer by any means or otherwise dispose of the Warrant (or
Warrant Shares issuable hereunder) until the Company consummates a Business
Combination without the prior written consent of the Company. Holder
further agrees that the Company shall place stop transfer orders with its
transfer agent against the Warrant Shares and shall place an appropriate
restrictive legend on the Warrant Shares until such restriction has
expired.
5. Adjustments. In the
event of any merger, reorganization, consolidation, recapitalization, dividend
(other than a cash dividend), stock split, reverse stock split, or other change
in corporate structure affecting the Common Stock, such substitution or
adjustment shall be made in the aggregate number of Warrant Shares subject to
this Warrant as may be determined to be appropriate by the Board of Directors of
the Company in order to prevent dilution or enlargement of rights, provided that
any fractional shares resulting from such adjustment shall be eliminated by
rounding to the next lower whole number of shares.
6. Miscellaneous.
6.1 Notices. All
notices, requests, deliveries, payments, demands and other communications which
are required or permitted to be given under this Agreement shall be in writing
and shall be either delivered personally or sent by registered or certified
mail, or by private courier to the parties at their respective addresses set
forth herein, or to such other address as either shall have specified by notice
in writing to the other. Notice shall be deemed duly given hereunder
when delivered or mailed as provided herein.
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6.2 Holder and Stockholder
Rights. The Holder shall not have any of the rights of a
stockholder with respect to the Warrant Shares until such shares have been
issued after the due exercise of this Warrant.
6.3 Waiver. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other or subsequent
breach.
6.4 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supercedes any
and all prior agreements with respect to the Warrant. This Agreement
may not be amended except by writing executed by the Holder and the
Company.
6.5 Binding Effect;
Successors. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and, to the extent not prohibited herein,
their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto and as provided
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
6.6 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
6.7 Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and
year first above written:
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By:
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Xxx
Xxxxx, President
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EXHIBIT
A
FORM
OF NOTICE OF EXERCISE OF WARRANT
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DATE
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Attention:
Board of Directors
Re: Purchase of Warrant
Shares
Gentlemen:
In
accordance with my Warrant dated as of September 3, 2008 with Asia Select
Acquisition II Corp. (the “Company”), I hereby irrevocably elect to exercise the
right to purchase _________ shares of the Company’s common stock, par value
$.0001 per share (“Common Stock”), which are being purchased for investment and
not resale.
As
payment for my shares, enclosed is (check and complete applicable
box[es]):
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~
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a
[personal check] [certified check] [bank check] payable to the order of
the Company in the sum of $_________;
and/or
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~
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confirmation
of wire transfer in the amount of
$_____________;
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(i) I
am acquiring the Warrant and shall acquire the Warrant Shares for my own
account, for investment, and not with a view towards the distribution
thereof;
(ii) I
have received a copy of all reports and documents required to be filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 within the last 24 months and all reports issued by the
Company to its stockholders;
(iii) I
understand that I must bear the economic risk of the investment in the Warrant
Shares, which cannot be sold by me unless they are registered under the
Securities Act of 1933 (the “1933 Act”) or an exemption therefrom is available
thereunder and that the Company is under no obligation to register the Warrant
Shares for sale under the 1933 Act;
(iv) I
am an accredited investor within the meaning of Rule 501(a) promulgated under
the 1933 Act;
(v) I
agree that I will not sell, transfer by any means or otherwise dispose of the
Warrant Shares acquired by me hereby until August 29, 2002 for such Warrant
Shares without the prior written consent of the Company. I agree that
the Company shall place stop transfer orders with its transfer agent against the
transfer of the Warrant Shares and the Certificates evidencing the Warrant
Shares shall bear an appropriate restrictive legend until such restriction
expires;
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(vi) I
have had both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to obtain
any additional information to the extent the Company possesses or may possess
such information or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant to
clause (ii) above;
(vii) I
am aware that the Company shall place stop transfer orders with its transfer
agent against the transfer of the Warrant Shares in the absence of registration
under the 1933 Act or an exemption therefrom as provided herein;
(viii) My
rights with respect to the Warrant Shares, in all respects, are subject to the
terms and conditions of this Agreement; and
(ix) If,
at the time of issuance of the Warrant Shares, the issuance of such shares has
not been registered under the 1933 Act, the certificates evidencing the Warrant
Shares shall bear an appropriate restrictive legend.
Kindly
forward to me my certificate at your earliest convenience.
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Very
truly yours,
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(Signature)
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(Address)
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(Print
Name)
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