EXHIBIT 10.28
EXECUTION COPY
--------------
AMENDMENT
This AMENDMENT (this "AMENDMENT"), dated as of December 21, 2006, is
entered into by and among Zhongpin Inc. (formerly known as Strong Technical
Inc.), a Delaware corporation (the "COMPANY"), and each of the investors listed
on Exhibit A hereto (each an "INVESTOR" and collectively, the "INVESTORS"), for
the purpose of amending the terms of the Registration Rights Agreement dated as
of January 30, 2006 and amended as of February 21, 2006 (the "REGISTRATION
RIGHTS AGREEMENT") among the Company and the Investors. Capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Registration Rights Agreement.
WHEREAS, pursuant to the terms of Section 2.1 of the Registration
Rights Agreement, the Company has filed with the Commission a registration
statement on Form S-1 (Registration No. 333-133226) (the "REGISTRATION
STATEMENT") pursuant to which the Company is seeking to register for resale by
the Investors in the manner set forth therein the Registrable Securities; and
WHEREAS, pursuant to comments received by the Company from the
Commission relating to the Registration Statement, the Company is requesting to
remove from the Registration Statement all of the Registrable Securities
issuable upon exercise of the warrants issued pursuant to the Purchase Agreement
(the "Original Warrants") and certain of the Registrable Securities issuable
upon conversion of the Series A Preferred Stock; and
WHEREAS, the Company and the Investors have agreed to make certain
amendments to the Registration Rights Agreement as set forth herein;
NOW, THEREFORE, in consideration of the above, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Each of the Investors agrees that the Registrable Securities
issuable upon exercise of the Original Warrants may be removed by the Company
from the Registration Statement.
2. Each of the Investors agrees that the Company may remove from
the Registration Statement the number of Registrable Securities issuable upon
conversion of the Series A Preferred Stock beneficially owned by such Investors
set forth opposite their names on EXHIBIT A hereto. In consideration of such
removal, the Company shall issue to each of such Investors stock purchase
warrants in the form annexed hereto as EXHIBIT B (the "ADDITIONAL WARRANTS") to
purchase the number of shares of Common Stock set forth opposite the names of
such Investors on EXHIBIT A hereto. Any expense to the Company associated with
the issuance and delivery of the Additional Warrants, which expense shall be
determined in accordance with generally accepted accounting principles in the
United States, shall be excluded from the calculation of the consolidated net
income of the Company for purposes of Section 4(a) of the Escrow Agreement dated
as of January 30, 2006, as amended, among the Company, Law Debenture Trust
Company of New York, as escrow agent, and the stockholders of the Company named
therein, and the Company's independent auditor is hereby authorized to give
effect to
such exclusion in the preparation of the Accountant's Certification (as defined
in such Escrow Agreement) certifying the Company's consolidated net income for
the year ended December 31, 2006.
3. The Investors acknowledge that, because the Registration
Statement has not yet been declared effective by the Commission, the amount
payable by the Company pursuant to Section 2.4 of the Registration Rights
Agreement in respect of the Registration Statement is not yet determinable. Each
of the Investors agrees, however, that in full settlement of any and all amounts
that are now, or may in the future be, payable to the Investors in respect of
the Registration Statement pursuant to Section 2.4 of the Registration Rights
Agreement, the Company shall pay and/or issue to the Investors the amount of
cash and/or shares of Common Stock (collectively, the "Penalty Shares") set
forth opposite their names on EXHIBIT A hereto. The Company shall make such
payment and issue such shares of Common Stock on or prior to December 31, 2006;
provided, however, that if as a result of the applicable rules and regulations
of the People's Republic of China the Company is unable to wire transfer such
cash payments on or prior to December 31, 2006, the Company shall use its
commercially reasonably efforts to make such payment as soon as practicable
after such date.
4. (a) The Company shall file, within 30 days of the date
the Company is required to file with the Commission its Annual Report on Form
10-K for the year ended December 31, 2006 (the "FILING DATE"), a registration
statement on Form S-1 (or such other form as is appropriate) registering the
offer and sale by the holders thereof of the Registrable Securities not included
in the Registration Statement and containing a "Plan of Distribution"
substantially identical to the "Plan of Distribution" included in the
Registration Statement. Such registration statement shall not include any shares
of Common Stock or other securities for the account of any other holder without
the prior written consent of the holders of a majority of the Registrable
Securities.
(b) In the event the rules or regulations of the
Commission prohibit the inclusion in the registration Statement filed pursuant
to Section 4(a) hereof of all of the Registrable Securities not previously
included in the Registration Statement, the Company may remove from such
registration statement, without the consent or approval of any of the holders of
Registrable Securities, FIRST, shares of Common Stock issuable upon exercise of
the Additional Warrants, which shares shall be removed for each of the holders
thereof on a pro rata basis; SECOND, shares of Common Stock issuable upon
exercise of the Original Warrants, which shares shall be removed for each of the
holders thereof on a pro rata basis; THIRD, shares of Common Stock comprising
the Penalty Shares, which shares shall be removed for each of the holders
thereof on a pro rata basis; and FOURTH, shares of Common Stock issuable upon
conversion of the Series A Preferred Stock, which shares shall be removed for
each of the holders thereof on a pro rata basis. If any Registrable Securities
are removed from the registration statement filed pursuant to Section 4(a)
hereof, the Company shall file one or more additional registration statements on
Form S-1 (or such other forms as is appropriate) registering the offer and sale
by the holders thereof of the Registrable Securities not included in any prior
registration statement of the Company and containing a "Plan of Distribution"
substantially identical to the "Plan of Distribution" included in the
Registration Statement. No such registration statement shall include any shares
of Common Stock or other securities for the account of any other holder
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without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration statement, and in the event
written comments of the Commission prohibit the inclusion in any such
registration statement of all the Registrable Securities not previously
registered under the Securities Act in a registration statement of the Company,
the Company may remove from such registration statement, without the consent or
approval of any of the holders of Registrable Securities, shares of Common Stock
in the manner provided in the first sentence of this Section 4(b). Except as
permitted by the terms hereof, without the prior written consent of the holders
of a majority of the Registrable Securities included in any registration
statement, the Company will not include in such registration statement that
includes any shares of Common Stock or other securities for the account of any
securityholder of the Company, any shares of Common Stock or other securities
for the account of any other securityholder of the Company.
(c) If at any time the Company shall determine to prepare
and file with the Commission a registration statement under the Securities Act
relating to an offering for its own account or the account of others of any of
its equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, respectively, then the Company shall send to each
holder of Registrable Securities written notice of such determination and, if
within fifteen (15) days after receipt of such notice, any such holder shall so
request in writing, the Company shall include in such registration statement all
or any part of such Registrable Securities that such holder requests to be
registered. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the holders of Registrable Securities as a part of the written notice
given pursuant to this paragraph. The right of any holder of Registrable
Securities to require registration pursuant to this paragraph shall be
conditioned upon such holder's participation in such underwriting and the
inclusion of such holder's Registrable Securities in the underwriting to the
extent provided herein. All holders of Registrable Securities proposing to
distribute their securities through such underwriting shall (together with the
Company and any officers, directors or other securityholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company. If the representative of the underwriters advises the
Company in writing that marketing factors require a limitation or elimination on
the number of shares to be underwritten, the representative may (subject to the
allocation priority set forth below) limit the number of Registrable Securities
to be included in the registration and underwriting. The Company shall so advise
all holders of securities requesting registration, and the number of shares of
Common Stock that are entitled to be included in the registration and
underwriting shall be allocated as follows: FIRST, to the Company for shares
being sold for its own account, SECOND, among all such holders of Registrable
Securities requesting registration (subject to the allocation priority set forth
in Section 4(b) above), and THIRD, among all other securityholders requesting
registration pursuant to the exercise of piggyback registration rights. If any
holder of Registrable Securities disapproves of the terms of any such
underwriting, such holder may elect to withdraw therefrom by written notice to
the Company and the underwriter. The Company shall have the right to terminate
or withdraw any registration initiated by it under
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this paragraph (c) prior to the effectiveness of such registration whether or
not any holder of Registrable Securities has elected to include securities in
such registration.
(d) Each registration statement filed by the Company
pursuant to this Amendment shall be deemed to be, and for all purposes of the
Registration Rights Agreement shall be treated as, a registration statement
filed pursuant to Section 2 of the Registration Rights Agreement; provided,
however, that Section 2.4 of the Registration Rights Agreement shall not be
applicable to any such registration statement. Subject to the terms of Section
2.5 of the Registration Rights Agreement, the Company shall use its commercially
reasonable efforts to cause each registration statement filed pursuant to this
Amendment to be declared effective by the Commission as soon as practicable
following the filing thereof, and shall deposit in escrow with its legal
counsel, Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, promptly following the date hereof,
the sum of $100,000, which escrowed funds may be applied by such counsel from
time to time to pay its fees and expenses for services rendered to the Company
in connection with the transactions contemplated hereby.
5. The definition of "REGISTRABLE SECURITIES" in the Registration
Rights Agreement is amended and restated in its entirety to read as follows:
"Registrable Securities" means the Penalty Shares and the shares of
Common Stock issuable upon the conversion of the Series A Preferred
Stock and/or the exercise of the Warrants purchased pursuant to the
Purchase Agreement and/or the Additional Warrants until, in the case of
any such share of Common Stock, it is (A) sold pursuant to an effective
registration statement under the Securities Act; (B) eligible to be
sold into the public market without regard to volume limitations under
Rule 144(k) promulgated under the Securities Act (or any successor
rule); or (C) sold pursuant to Rule 144 under the Securities Act (or
any successor rule).
6. Except as specifically set forth in this Amendment, there are
no other amendments, modifications or waivers to the Registration Rights
Agreement, and all of the other terms and provisions of the Registration Rights
Agreement remain in full force and effect.
7. From and after the date hereof, all references to the
Registration Rights Agreement shall be deemed to be references to the
Registration Rights Agreement, as the case may be, as modified hereby.
8. This Amendment shall be binding upon the parties hereto and
their respective successors and permitted assigns and shall inure to the benefit
of and be enforceable by each of the parties hereto and their respective
successors and permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which shall constitute one instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
signed in its name effective as of the date set forth above.
ZHONGPIN INC.
By: /s/ Zhu Xianfu
-------------------------------------
Name: Zhu Xianfu
Title: Chief Executive Officer
ATLAS CAPITAL MASTER FUND LP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
ATLAS CAPITAL (Q.P.), LP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
ATLAS CAPITAL OFFSHORE EXEMPT FUND, LTD.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
BFS US SPECIAL OPPORTUNITIES TRUST PLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
5
CORDILLERA FUND, LP
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
CRESTVIEW CAPITAL MASTER LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Member, Crestview Capital
Partners LLC
GRYPHON MASTER FUND, L.P.
By: /s/ Xxxxxx X. Garden
-------------------------------------
Name: Xxxxxx X. Garden
Title: Authorized Agent
GSSF MASTER FUND, L.P.
By: /s/ Xxxxxx X. Garden
-------------------------------------
Name: Xxxxxx X. Garden
Title: Authorized Agent
JAYHAWK CHINA FUND (CAYMAN), LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: CFO of Investment Manager
6
PINNACLE CHINA FUND, L.P.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Manager, Kitt China Management,
L.L.C., the Manager of Pinnacle China
Management, L.L.C., the General
Partner of Pinnacle China Advisors,
L.P., the General Partner of Pinnacle
China Fund, L.P.
RENAISSANCE US GROWTH INVESTMENT
TRUST PLC
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
/s/ Xxxxxxx Xxxx
-----------------------------------------
XXXXXXX XXXX
SANDOR CAPITAL MATER FUND, LP
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
XXXXXXXXX PARTNERS, LP
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
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SPECIAL SITUATIONS PRIVATE EQUITY
FUND, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
SPECIAL SITUATIONS FUND III QP, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
SPECIAL SITUATIONS FUND III, L.P.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
SRB GREENWAY OFFSHORE OPERATING
FUND, L.P.
By: SRB Management, L.P.,
General Partner
By: BC Advisors, LLC,
General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
SRB GREENWAY CAPITAL, L.P.
By: SRB Management, L.P.,
General Partner
By: BC Advisors, LLC,
General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
SRB GREENWAY CAPITAL (QP), L.P.
By: SRB Management, L.P.,
General Partner
By: BC Advisors, LLC,
General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Member
8
VISION OPPORTUNITY MASTER FUND, LTD.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Portfolio Manager
WESTPARK CAPITAL, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: General Partner
WS OPPORTUNITY FUND INTERNATIONAL, LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
WS OPPORTUNITY FUND, L.P.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
WS OPPORTUNITY FUND (QP), L.P.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
9
EXHIBIT A
---------
LIST OF PURCHASERS
NUMBER OF
SHARES UNDERLYING
SERIES A
PREFERRED STOCK PENALTY PAYMENT
REMOVED FROM NUMBER OF ---------------
NAMES AND ADDRESSES OF REGISTRATION ADDITIONAL SHARES OF
INVESTORS STATEMENT WARRANTS CASH COMMON STOCK
--------- --------- -------- ---- ------------
Atlas Capital Master Fund LP 190,586 28,588 $ 128,831.96 -0-
c/o Admiral Administration
Admiral Financial Center, 0xx Xxxxx
00 Xxxx Xxxxxx
Box 32021
SMB
Grand Cayman, Cayman Islands
Atlas Capital (Q.P.), L.P. 115,527 17,330 78,093.73 -0-
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Atlas Capital Offshore Exempt Fund, Ltd. 29,721 4,459 20,090.98 -0-
c/o Admiral Administration
Admiral Financial Center, 0xx Xxxxx
00 Xxxx Xxxxxx
Box 32021
SMB
Grand Cayman, Cayman Islands
BFS US Special Opportunities Trust PLC 375,000 56,250 -0- 30,957
Front National Bank
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx T-8
Cordillera Fund, L.P. 67,167 10,076 45,403.33 -0-
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Crestview Capital Master LLC 167,917 25,188 113,508.33 -0-
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx XX 00000
Gryphon Master Fund, L.P. 117,542 17,632 79,455.83 -0-
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
A-1
NUMBER OF
SHARES UNDERLYING
SERIES A
PREFERRED STOCK PENALTY PAYMENT
REMOVED FROM NUMBER OF ---------------
NAMES AND ADDRESSES OF REGISTRATION ADDITIONAL SHARES OF
INVESTORS STATEMENT WARRANTS CASH COMMON STOCK
--------- --------- -------- ---- ------------
GSS Master Fund, L.P. 50,375 7,557 $ 34,052.50 -0-
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Jayhawk China Fund (Cayman), Ltd. 900,000 135,000 -0- 74,297
c/o Genesis Fund Service Limited
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Pinnacle China Fund, L.P. 1,750,000 262,500 -0- 144,466
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000
Renaissance US Growth Investment Trust PLC 375,000 56,250 -0- 30,957
Front National Bank
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx T-8
Xxxxxx, XX 00000
Xxxxxxx X. Xxxx 75,000 11,250 -0- 6,192
000 Xxxxxxx Xxxx Xxxx, Xxx. 00-X0
Xxx Xxxx, Xxx Xxxx 00000
Sandor Capital Master Fund, LP 125,000 18,750 -0- 10,319
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Xxxxxxxxx Partners, LP 293,856 44,079 -0- 36,117
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Special Situations Private Equity Fund, L.P. 144,073 21,611 97,390.15 -0-
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Special Situations Fund III QP, L.P. 330,965 49,645 223,794.93 -0-
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
A-2
NUMBER OF
SHARES UNDERLYING
SERIES A
PREFERRED STOCK PENALTY PAYMENT
REMOVED FROM NUMBER OF ---------------
NAMES AND ADDRESSES OF REGISTRATION ADDITIONAL SHARES OF
INVESTORS STATEMENT WARRANTS CASH COMMON STOCK
--------- --------- -------- ---- ------------
Special Situations Fund III, L.P. 28,714 4,308 $ 19,419.93 -0-
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
SRB Greenway Offshore Operating Fund, L.P. 4,483 673 -0- 551
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
SRB Xxxxxxxx Capital, L.P. 8,951 1,343 -0- 1,101
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
SRB Greenway Capital (QP), L.P. 70,525 10,579 -0- 8,668
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Vision Opportunity Master Fund, Ltd. 302,251 45,338 204,315.00 -0-
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Westpark Capital, L.P. 250,000 37,500 -0- 20,638
0000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, XX 00000
WS Opportunity Fund International, Ltd. 63,809 9,572 -0- 7,843
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
WS Opportunity Fund, L.P. 36,942 5,542 -0- 4,541
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
WS Opportunity Fund (QP), L.P. 25,188 3,779 $ -0- 3,096
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxxx
A-3
EXHIBIT B
---------
WARRANT
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS IN RELIANCE ON EXEMPTIONS FROM
REGISTRATION REQUIREMENTS UNDER SAID LAWS, AND NEITHER SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
ZHONGPIN INC.
WARRANT FOR THE PURCHASE OF UP TO ________ SHARES OF
COMMON STOCK, PAR VALUE $0.001 PER SHARE
NO. PW-[___] ________ SHARES
THIS CERTIFIES that, for value received, _______________ with an
address at _________________________________________________________________
(including any transferee, the "Holder"), is entitled to subscribe for and
purchase from Zhongpin Inc., a Delaware corporation (the "Company"), upon the
terms and conditions set forth herein, at any time or from time to time before
5:00 P.M., New York time, on January 30, 2011 (the "Exercise Period"), up to
_____________ (_____ ) shares of Common Stock at an initial exercise price per
share equal to $5.50, subject to adjustment pursuant to the terms hereof (the
"Exercise Price"). As used herein, the term "this Warrant" shall mean and
include this Warrant and any Warrant or Warrants hereafter issued as a
consequence of the exercise or transfer of this Warrant in whole or in part.
This Warrant is one of a series of warrants of like tenor issued by the Company
pursuant to an Amendment dated as of December __, 2006 to the Registration
Rights Agreement (as defined below) among the Company and the investors named
therein and initially covering an aggregate of _________ shares of Common Stock
(collectively, the "Company Warrants").
B-1
The number of shares of Common Stock issuable upon exercise of this
Warrant (the "Warrant Shares") and the Exercise Price may be adjusted from time
to time as hereinafter set forth.
1. (a) This Warrant may be exercised during the Exercise
Period as to all or a lesser number of whole Warrant Shares by the surrender of
this Warrant (with the Exercise Form attached hereto duly executed) to the
Company at the offices of the Company's agent, The Bank of New York, 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx Xxx Xxxx 00000, Attention: __________, or at such
other place as is designated in writing by the Company, together with a
certified or bank cashier's check payable to the order of the Company in an
amount equal to the Exercise Price multiplied by the number of Warrant Shares
for which this Warrant is being exercised.
(b) This Warrant may also be exercised by the Holder
through a cashless exercise, as described in this Section 1(b). This Warrant may
be exercised, in whole or in part, by (i) the delivery to the Company of a duly
executed Exercise Form specifying the number of Warrant Shares to be applied to
such exercise, and (ii) the surrender to a common carrier for overnight delivery
to the Company, or as soon as practicable following the date the Holder delivers
the Exercise Form to the Company, of this Warrant (or an indemnification
undertaking with respect to this Warrant in the case of its loss, theft or
destruction). The number of shares of Common Stock to be issued upon exercise of
this Warrant pursuant to this Section 1(b) shall equal the value of this Warrant
(or the portion thereof being canceled) computed as of the date of delivery of
this Warrant to the Company using the following formula:
X = Y(A-B)
------
A
where:
X = the number of shares of Common Stock to be issued to the
Holder under this Section 1(b);
Y = the number of Warrant Shares identified in the Exercise
Form as being applied to the subject exercise;
A = the Current Market Price on such date; and
B = the Exercise Price on such date
For purposes of this Section 1(b), the "CURRENT MARKET PRICE" per share
of Common Stock on any day shall mean: (i) if the principal trading market for
such securities is a national or regional securities exchange, the closing price
on such exchange on such day; or (ii) if sales prices for shares of Common Stock
are reported by the NASDAQ National Market System or NASDAQ Capital Market (or a
similar system then in use), the last reported sales price (regular way) so
reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and
if bid and ask prices for shares of Common Stock are reported in the
over-the-counter market by NASDAQ (or, if not so reported, by the National
Quotation Bureau), the average of the high bid and low ask prices so reported on
such day. Notwithstanding the foregoing, if there is no reported closing price,
last reported sales price, or bid and ask prices, as the case may be, for the
day in question, then the Current Market Price shall be determined as of the
latest date prior to such day for which such closing price, last reported sales
price, or bid and ask prices, as the case may be, are
B-2
available, unless such securities have not been traded on an exchange or in the
over-the-counter market for 30 or more days immediately prior to the day in
question, in which case the Current Market Price shall be determined in good
faith by, and reflected in a formal resolution of, the Board of Directors of the
Company.
The Company acknowledges and agrees that this Warrant was issued on
December __, 2006 (the "Issuance Date"). Consequently, the Company acknowledges
and agrees that, if the Holder conducts a cashless exercise pursuant to this
Section 1(b), the period during which the Holder held this Warrant may, for
purposes of Rule 144 promulgated under the Securities Act of 1933, as amended
(the "Act"), be "tacked" to the period during which the Holder holds the Warrant
Shares received upon such cashless exercise.
Notwithstanding the foregoing, the Holder may conduct a cashless
exercise pursuant to this Section 1(b) only after the first anniversary of the
Issuance Date, and then only in the event that a registration statement covering
the resale of the Warrant Shares is not then effective and available for resales
at the time that the Holder wishes to conduct such cashless exercise.
2. Upon each exercise of the Holder's rights to purchase Warrant
Shares, the Holder shall be deemed to be the holder of record of the Warrant
Shares issuable upon such exercise, notwithstanding that the transfer books of
the Company shall then be closed or certificates representing such Warrant
Shares shall not then have been actually delivered to the Holder. As soon as
practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the right of the Holder to purchase the balance of the
Warrant Shares (or portions thereof) subject to purchase hereunder.
IF BY THE THIRD TRADING DAY FOLLOWING DELIVERY OF AN EXERCISE
FORM ("DELIVERY DATE") THE COMPANY FAILS TO DELIVER THE REQUIRED NUMBER OF
WARRANT SHARES IN THE MANNER REQUIRED PURSUANT TO THIS SECTION 2, THEN THE
HOLDER WILL HAVE THE RIGHT TO RESCIND SUCH EXERCISE.
If by the Delivery Date the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to this
Section 2, and if after such date and prior to the receipt of such Warrant
Shares, shares of Common Stock are purchased by or for the account of the Holder
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a "Buy-In"), then the
Company shall (1) pay in cash to the Holder the amount by which (x) the Holder's
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Warrant Shares that the Company was required to deliver to the Holder
in connection with such exercise by (B) the closing price of the Common Stock on
the date the Exercise Form was delivered and (2) at the option of the Holder,
either reinstate the number of Warrant Shares for which such exercise was not
honored or deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its exercise and delivery
obligations
B-3
hereunder. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy-In.
3. (a) Any Warrants issued upon the registration of transfer
or exercise in part of this Warrant shall be numbered and shall be registered in
a Warrant Register as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the Warrant Register as the owner in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Warrant on the part of any other person,
and shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. The transfer of this Warrant may be registered on the books of the
Company upon delivery thereof duly endorsed by the Holder or by his duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, executor, administrator, guardian or other legal representative, due
authority shall be produced. Upon any registration of transfer, the Company
shall deliver a new Warrant or Warrants to the person entitled thereto. This
Warrant may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof), upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company may require prior
to registering any transfer of a Warrant an opinion of counsel reasonably
satisfactory to the Company that such transfer complies with the provisions of
the Act, and the rules and regulations thereunder.
(b) The Holder acknowledges that he has been advised by
the Company that neither this Warrant nor the Warrant Shares have been
registered under the Act, that this Warrant is being or has been issued and the
Warrant Shares may be issued on the basis of the statutory exemption provided by
Section 4(2) of the Act or Rule 506 of Regulation D promulgated thereunder, or
both, relating to transactions by an issuer not involving any public offering.
The Holder acknowledges that he has been informed by the Company of, or is
otherwise familiar with, the nature of the limitations imposed by the Act and
the rules and regulations thereunder on the transfer of securities. In
particular, the Holder agrees that no sale, assignment or transfer of this
Warrant or the Warrant Shares issuable upon exercise hereof shall be valid or
effective, and the Company shall not be required to give any effect to any such
sale, assignment or transfer, unless (i) the sale, assignment or transfer of
this Warrant or such Warrant Shares is registered under the Act, it being
understood that neither this Warrant nor such Warrant Shares are currently
registered for sale and that the Company has no obligation or intention to so
register this Warrant or such Warrant Shares except as specifically provided for
in that certain Registration Rights Agreement dated as of January 30, 2006, as
amended, by and among the Company, the Holder and certain other parties (the
"Registration Rights Agreement"), or (ii) this Warrant or such Warrant Shares
are sold, assigned or transferred in accordance with all the requirements and
limitations of Rule 144 under the Act, it being understood that Rule 144 is not
available at the time of the original issuance of this Warrant for the sale of
this Warrant or such Warrant Shares and that there can be no assurance that Rule
144 sales will be available at any
B-4
subsequent time, or (iii) such sale, assignment, or transfer is otherwise exempt
from registration under the Act in the opinion of counsel reasonably acceptable
to the Company.
4. The Company shall at all times reserve and keep available out
its authorized and unissued Common Stock, solely for the purpose of providing
for the exercise of the rights to purchase all Warrant Shares granted pursuant
to the Warrants, such number of shares of Common Stock as shall, from time to
time, be sufficient therefor. The Company covenants that all shares of Common
Stock issuable upon exercise of this Warrant, upon receipt by the Company of the
full Exercise Price therefor, shall be validly issued, fully paid,
nonassessable, and free of preemptive rights.
5. (a) In case the Company shall at any time after the date
the Warrants were first issued (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a smaller number
of shares, or (iv) issue any shares of its capital stock by reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price, and the number of Warrant Shares
issuable upon exercise of this Warrant, in effect at the time of the record date
for such dividend or of the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which, if such Warrant had been exercised immediately prior to such time, he
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) In case the Company shall issue or fix a record date
for the issuance to all holders of Common Stock of rights, options, or warrants
to subscribe for or purchase Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share (or having a conversion or
exchange price per share, if a security convertible into or exchangeable for
Common Stock) less than the then applicable Exercise Price per share on such
record date, then, in each case, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common Stock
so to be offered (or the aggregate initial conversion or exchange price of the
convertible or exchangeable securities so to be offered) would purchase at such
Exercise Price and the denominator of which shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock to be offered for subscription or purchase (or into which
the convertible or exchangeable securities so to be offered are initially
convertible or exchangeable). Such adjustment shall become effective at the
close of business on such record date; provided, however, that, to the extent
the shares of Common Stock (or securities convertible into or exchangeable for
shares of Common Stock) are not delivered, the Exercise Price shall be
readjusted after the expiration of such rights, options, or warrants (but only
with respect to warrants exercised after such expiration), to the Exercise Price
which would then be in effect had the adjustments made upon the issuance of such
rights, options, or warrants
B-5
been made upon the basis of delivery of only the number of shares of Common
Stock (or securities convertible into or exchangeable for shares of Common
Stock) actually issued. In case any subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by the board of
directors of the Company, whose determination shall be conclusive.
(c) In case the Company shall distribute to all holders
of Common Stock (including any such distribution made to the stockholders of the
Company in connection with a consolidation or merger in which the Company is the
continuing corporation) evidences of its indebtedness, cash (other than any cash
dividend which, together with any cash dividends paid within the 12 months prior
to the record date for such distribution, does not exceed 5% of the then
applicable Exercise Price at the record date for such distribution) or assets
(other than distributions and dividends payable in shares of Common Stock), or
rights, options or warrants to subscribe for or purchase Common Stock, or
securities convertible into or exchangeable for shares of Common Stock
(excluding those with respect to the issuance of which an adjustment of the
Exercise Price is provided pursuant to Section 5(b) hereof), then, in each case,
the Exercise Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to the record date for the determination of stockholders
entitled to receive such distribution by a fraction, the numerator of which
shall be the then applicable Exercise Price per share of Common Stock on such
record date, less the fair market value (as determined in good faith by, and
reflected in a formal resolution of, the board of directors of the Company,
whose determination shall be conclusive absent manifest error) of the portion of
the evidences of indebtedness or assets so to be distributed, or of such rights,
options or warrants or convertible or exchangeable securities, or the amount of
such cash, applicable to one share, and the denominator of which shall be such
Exercise Price per share of Common Stock. Such adjustment shall become effective
at the close of business on such record date.
(d) No adjustment in the Exercise Price shall be required
if such adjustment is less than $.01; provided, however, that any adjustments
which by reason of this Section 5(d) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 5 shall be made to the nearest cent or to the
nearest one-thousandth of a share, as the case may be.
(e) In any case in which this Section 5 shall require
that an adjustment in the Exercise Price be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the shares of Common Stock, if any, issuable upon such
exercise over and above the shares of Common Stock, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to the Holder a due xxxx or
other appropriate instrument evidencing the Holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
(f) Upon each adjustment of the Exercise Price as a
result of the calculations made in Sections 5(b) or 5(c) hereof, this Warrant
shall thereafter evidence the right to purchase,
B-6
at the adjusted Exercise Price, that number of shares (calculated to the nearest
thousandth) obtained by multiplying (A) the number of shares purchasable upon
exercise of this Warrant prior to such adjustment by (B) a fraction, the
numerator of which is the Exercise Price in effect prior to such adjustment and
the denominator of which is the Exercise Price in effect immediately after such
adjustment.
(g) Whenever there shall be an adjustment as provided in
this Section 5, the Company shall promptly cause written notice thereof to be
sent by registered mail, postage prepaid, to the Holder, at its address as it
shall appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof, which officer's certificate shall be conclusive
evidence of the correctness of any such adjustment absent manifest error.
(h) The Company shall not be required to issue fractions
of shares of Common Stock or other capital stock of the Company upon the
exercise of this Warrant. If any fraction of a share would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
Exercise Price of such share of Common Stock on the date of exercise of this
Warrant.
6. (a) In case of any consolidation or combination with or
merger of the Company with or into another corporation or entity (other than a
merger, consolidation or combination in which the Company is the surviving or
continuing corporation), or in case of any sale, lease or conveyance to another
corporation, entity or person of the property and assets of any nature of the
Company as an entirety or substantially as an entirety, or any compulsory share
exchange, pursuant to which share exchange the Common Stock is converted into
other securities, cash or other property (collectively an "Extraordinary
Event"), then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby the Holder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of this Warrant, such shares of stock, securities or assets as
would have been issuable or payable with respect to or in exchange for a number
of Warrant Shares equal to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant, had such Extraordinary Event not taken
place, and in any such case appropriate provision shall be made with respect to
the rights and interests of the Holder to the end that the provisions hereof
(including, without limitation, provision for adjustment of the Exercise Price)
shall thereafter be applicable, as nearly equivalent as may be practicable in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof. The Company shall not effect any such Extraordinary
Event unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
Extraordinary Event shall assume the obligation to deliver to the Holder, at the
last address of the Holder appearing on the books of the Company, such shares of
stock, securities or assets as, in accordance with the foregoing provisions, the
Holder may be
B-7
entitled to purchase, and the other obligations under this Warrant. The
provisions of this paragraph shall similarly apply to successive Extraordinary
Events.
(b) In case of any reclassification or change of the
shares of Common Stock issuable upon exercise of this Warrant (other than a
change in par value or from no par value to a specified par value, or as a
result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), or in case of any consolidation,
combination or merger of another corporation or entity into the Company in which
the Company is the continuing corporation and in which there is a
reclassification or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a change in par value,
or from no par value to a specified par value, or as a result of a subdivision
or combination, but including any change in the shares into two or more classes
or series of shares), the Holder shall have the right thereafter to receive upon
exercise of this Warrant solely the kind and amount of shares of stock and other
securities, property or cash, or any combination thereof receivable upon such
reclassification, change, consolidation, combination or merger by a holder of
the number of shares of Common Stock for which this Warrant might have been
exercised immediately prior to such reclassification, change, consolidation,
combination or merger. Thereafter, appropriate provision shall be made for
adjustments, which shall be as nearly equivalent as practicable to the
adjustments in Section 5.
(c) The above provisions of this Section 6 shall
similarly apply to successive reclassifications and changes of shares of Common
Stock and to successive consolidations, combinations, mergers, sales, leases or
conveyances.
7. In case at any time the Company shall propose to:
(a) pay any dividend or make any distribution on shares
of Common Stock in shares of Common Stock or make any other distribution (other
than regularly scheduled cash dividends which are not in a greater amount per
share than the most recent such cash dividend) to all holders of Common Stock;
or
(b) issue any rights, warrants or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants or other securities; or
(c) effect any reclassification or change of outstanding
shares of Common Stock, or any consolidation, merger, sale, lease or conveyance
of property or other Extraordinary Event; or
(d) effect any liquidation, dissolution or winding-up of
the Company; or
(e) take any other action which would cause an adjustment
to the Exercise Price;
B-8
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such dividend, distribution, rights,
warrants or other securities are to be determined, (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up, or (iii) the date of such action which would require
an adjustment to the Exercise Price.
8. The issuance of any shares or other securities upon the
exercise of this Warrant, and the delivery of certificates or other instruments
representing such shares or other securities, shall be made without charge to
the Holder for any tax or other charge in respect of such issuance. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of any certificate in a name
other than that of the Holder and the Company shall not be required to issue or
deliver any such certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
9. Unless registered pursuant to the Registration Rights
Agreement, the Warrant Shares issued upon exercise of this Warrant shall be
subject to a stop transfer order and the certificate or certificates evidencing
such Warrant Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS, AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN
MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS
(1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY
RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT
SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED
IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS."
10. Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), the
B-9
Company shall execute and deliver to the Holder thereof a new Warrant of like
date, tenor and denomination.
11. The holder of this Warrant shall not have solely on account of
such status, any rights of a stockholder of the Company, either at law or in
equity, or to any notice of meetings of stockholders or of any other proceedings
of the Company, except as provided in this Warrant.
12. Any term of this Warrant may be amended or waived upon the
written consent of the Company and the holders of Company Warrants representing
at least 50% of the number of shares of Common Stock then subject to all
outstanding Company Warrants (the "Majority Holders"); provided, that (x) any
such amendment or waiver must apply to all Company Warrants; and (y) the number
of Warrant Shares subject to this Warrant, the Exercise Price and the Exercise
Period may not be amended, and the right to exercise this Warrant may not be
altered or waived, without the written consent of the Holder.
13. This Warrant has been negotiated and consummated in the State
of New York and shall be governed by, and construed in accordance with the laws
of the State of New York applicable to contracts made and performed within such
State, without regard to principles governing conflicts of law. The Company and,
by accepting this Warrant, the Holder, each irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Warrant and the transactions contemplated hereby. Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under the Securities Purchase Agreement. The Company and, by
accepting this Warrant, the Holder, each irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. The Company and, by accepting this Warrant, the
Holder, each irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. EACH OF THE COMPANY AND, BY ITS
ACCEPTANCE HEREOF, THE HOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY
IN ANY LITIGATION WITH RESPECT TO THIS WARRANT AND REPRESENTS THAT COUNSEL HAS
BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
[14. The Company shall not effect the exercise of this Warrant, and
no person who is a holder of this Warrant shall have the right to exercise this
Warrant, to the extent that after giving effect to such exercise, such person
(together with such person's affiliates) would beneficially own in excess of
9.999% of the shares of the Common Stock outstanding immediately after giving
effect to such exercise. For purposes of the foregoing sentence, the aggregate
number of shares of Common Stock beneficially owned by such person and its
affiliates shall include, without limitation, the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude shares of Common
Stock which would be issuable upon (i) exercise of the remaining,
B-10
unexercised portion of this Warrant beneficially owned by such person and its
affiliates and (ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company beneficially owned by such person
and its affiliates (including, without limitation, shares of Preferred Stock,
any debentures, convertible notes or other convertible preferred stock or
warrants) subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the preceding sentence, for
purposes of this paragraph, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act. For purposes of this Warrant,
in determining the number of outstanding shares of Common Stock, a Holder may
rely on the number of outstanding shares of Common Stock as reflected in (1) the
Company's most recent Form 10-Q, Form 10-K or other public filing with the
Commission, as the case may be, (2) a more recent public announcement by the
Company, or (3) any other notice by the Company or its transfer agent setting
forth the number of shares of Common Stock outstanding. For any reason at any
time, upon the written or oral request of the Holder of this Warrant, the
Company shall within five business days confirm orally and in writing to the
Holder of this Warrant the number of shares of Common Stock then outstanding. In
any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company
by the Holder of this Warrant and its affiliates since the date as of which such
number of outstanding shares of Common Stock was reported. In effecting the
exercise of this Warrant, the Company shall be entitled to rely on a
representation by the Holder of this Warrant as to the number of shares that it
beneficially owns for purposes of the above 9.999% limitation calculation.]*
Dated: _________, 200_
ZHONGPIN INC.
By:
-------------------------------------
Name:
Title:
------------------
* Section 14 shall be deleted from any Warrant issued by the Company to Special
Situations Fund III QP, L.P. or its affiliates.
B-11
ZHONGPIN INC.
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the attached Warrant.)
To: Zhongpin Inc.
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxxxx Province
The People's Republic of China
Attention: Secretary
FOR VALUE RECEIVED, _______________ hereby sells, assigns, and
transfers unto _______________ that certain Warrant (Number PW-______) to
purchase __________ shares of Common Stock, par value $0.001 per share, of
Zhongpin Inc. (the "Company"), together with all right, title, and interest
therein, and does hereby irrevocably constitute and appoint
________________________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated:
--------------------
Signature:
------------------------------
NOTICE:
The signature on the foregoing Assignment must correspond to the name
as written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatsoever.
ZHONGPIN INC.
EXERCISE FORM
(To be completed and signed only upon exercise of the Warrants)
To: Zhongpin Inc.
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxxxx Province
The People's Republic of China
Attention: Secretary
The undersigned hereby exercises his or its rights to purchase
___________ Warrant Shares covered by the within Warrant and tenders payment
herewith in the amount of $_________ by [tendering cash or delivering a
certified check or bank cashier's check, payable to the order of the Company]
[surrendering ______ shares of Common Stock received upon exercise of the
attached Warrant, which shares have a Current Market Price equal to such
payment] in accordance with the terms thereof, and requests that certificates
for such securities be issued in the name of, and delivered to:
----------------------------------------
----------------------------------------
----------------------------------------
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated: ____________, ________ Name:
-----------------------------------
(Please Print)
Address:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
(Signature)
