EXHIBIT 10.6
WARRANT PURCHASE AGREEMENT
WARRANT PURCHASE AGREEMENT (this "Agreement"), dated as of June 20, 2007,
is entered into by and among China Pacific Acquisition Corp., a Delaware
corporation (the "Company"), and [__________] ("Buyer").
WHEREAS:
A. The Company has filed a registration statement (the "Registration
Statement") for the initial public offering (the "IPO") of units (the "Units"),
each unit consisting of one share of the Company's Common Stock (a "Share") and
one four year warrant (the "Warrants") to purchase one Share at an exercise
price of $6.00 per Share exercisable on the later of the Company's completion of
a business combination and one year from the date of the IPO.
B. The Company and Buyer are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by Section
4(2) of the Securities Act of 1933, as amended, and by Regulation D ("Regulation
D") promulgated by the United States Securities and Exchange Commission (the
"SEC") thereunder; and
C. Buyer desires to purchase and the Company desires to issue and sell,
upon the terms and conditions set forth in this Agreement, [______] Warrants
(the "Placement Warrants") for an aggregate purchase price of [________] Dollars
($[_______]) (the "Buyer Purchase Price").
NOW THEREFORE, the Company and Buyer hereby agree as follows:
1. PURCHASE AND SALE OF UNITS.
(a) PURCHASE OF PLACEMENT WARRANTS. On the Closing Date
(as defined below), the Company shall issue and sell to Buyer and Buyer shall
purchase from the Company the Placement Warrants for the Buyer Purchase Price.
(b) FORM OF PAYMENT. On the Closing Date (as defined below),
(i) Buyer shall pay the Buyer Purchase Price for the Placement Warrants by wire
transfer of immediately available funds to the Company, in accordance with the
Company's written wiring instructions, against delivery of the Placement
Warrants, and (ii) immediately prior to the closing of the IPO, the Company
shall deposit the Buyer Purchase Price into the trust account described in the
Registration Statement (the "Trust Account").
(c) CLOSING DATE. Subject to the satisfaction (or written
waiver) of the conditions thereto set forth in Section 6 and Section 7 below,
the date and time of the issuance and sale of the Placement Warrants pursuant to
this Agreement shall be no later than the date and time that the Company's
Registration Statement is declared effective by the SEC (the "Closing Date").
The closing of the transactions contemplated by this Agreement (the "Closing")
shall occur on the Closing Date at such location as may be agreed to by the
parties.
2. BUYER REPRESENTATIONS AND WARRANTIES.
(a) Buyer represents and warrants to the Company as follows:
(i) Buyer is purchasing the Placement Warrants for
its own account and for investment purposes and not with the view towards
distribution;
(ii) Buyer acknowledges that the Shares and Warrants
included in the Placement Warrants purchased, and the Shares issued upon
exercise of the Placement Warrants, will bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN OFFERED AND SOLD IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OF 1933 AS AMENDED (THE
"SECURITIES ACT"). ACCORDINGLY, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT AND MAY NOT
BE TRANSFERRED OTHER THAN PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, THE AVAILABILITY OF WHICH IS TO
BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
(iii) Buyer understands that the Placement Warrants
are being offered and sold to it in reliance on specific exemptions from the
registration requirements of Federal and State securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties and agreement herein in order to determine the applicability of such
exemptions and the suitability of Buyer to acquire the Placement Warrants;
(iv) Buyer acknowledges that, in making the decision
to purchase the Placement Warrants, Buyer has relied solely upon independent
investigations made by it and materials provided by the Company and not upon any
separate representations made by the Company with respect to the Company or the
Placement Warrants;
(v) Buyer has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Company and
this offering and all such questions, if any, have been answered to the full
satisfaction of Buyer;
(vi) Buyer has such knowledge and expertise in
financial and business matters that the undersigned is capable of evaluating the
merits and risks involved in an investment in the Placement Warrants; and
(vii) Each of Buyer and its equity holders is an
accredited investor as such term is defined in Rule 501 of Regulation D.
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(b) NO GOVERNMENT RECOMMENDATION OR APPROVAL. Buyer
understands that no Federal or State agency has passed on or made any
recommendation or endorsement of the Placement Warrants.
(c) STATUS OF PLACEMENT WARRANTS. Buyer acknowledges that:
(i) The Placement Warrants, Shares and Warrants will
be subject to a lock-up as referred to in the Registration Statement. Subject to
certain limited exceptions, the Shares and Warrants are not transferable until
the closing of the initial business combination as described in the Registration
Statement, and are subject to the same voting restrictions and waiver of
conversion rights as are applicable to the Shares currently held by the
Company's existing stockholders as described in the Registration Statement.
(ii) In the event that the Company distributes to its
public stockholders the amount in the trust account as described in the
Registration Statement pursuant to the dissolution of the Company, Buyer will
lose its entire investment as Buyer shall have no right to participate in such
distribution.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Buyer that:
(a) The execution, delivery and performance of this
Agreement has been or will be duly and validly authorized by the Company and
will be a valid and binding agreement of the Company, enforceable in accordance
with its respective terms, except to the extent that (i) the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect and affecting the rights of creditors
generally, (ii) the enforceability hereof is subject to general principles of
equity or (iii) the indemnification provisions hereof may be held to violate
public policy. The securities to be issued pursuant to the transactions
contemplated by this Agreement have been duly authorized and, when issued and
paid for in accordance with (x) this Agreement and (y) the
certificates/instruments representing such securities, will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, except to the extent that (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws from time
to time in effect and affecting the rights of creditors generally, (ii) the
enforceability thereof is subject to general principles of equity, or (iii) the
indemnification provisions thereof may be held to violate public policy. All
corporate action required to be taken for the authorization, issuance and sale
of the Placement Warrants has been duly and validly taken by the Company.
(b) The Shares being offered as part of the Placement
Warrants will be duly authorized and when issued and paid for in accordance
with this Agreement and proper exercise of such Warrants, respectively, and the
certificates/instruments representing such Common Stock, will be validly issued,
fully-paid and non-assessable; and such securities are not and will not be
subject to the preemptive rights of any holder of any security of the Company.
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(c) The Company is organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company is duly qualified or licensed and in good standing as a foreign
corporation in each jurisdiction in which the character of its operations
requires such qualification or licensing and where failure to so qualify would
have a material adverse effect on the Company. The Company has all requisite
power and authority, and all material and necessary authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental
regulatory officials and bodies (domestic and foreign) ("Approvals") to conduct
its business and the Company is doing business in material compliance with all
such Approvals except where the failure to have such Approvals would not have a
material adverse effect on the Company. The Company has all power and authority
to enter into this Agreement, to carry out the provisions and conditions hereof,
and all consents, authorizations, and approvals required in connection herewith
have been obtained or will be obtained prior to the Closing. No consent,
authorization or order of, and no filing with, any court, government agency or
other body is required by the Company for the issuance of the securities except
for applicable federal and state securities laws.
4. COVENANTS.
(a) BEST EFFORTS. The parties shall use their best efforts
to satisfy timely each of the conditions described in Sections 6 and 7 of this
Agreement.
(b) AUTHORIZATION AND RESERVATION OF SHARES. The Company
shall at all times have authorized, and reserved for the purpose of issuance, a
sufficient number of shares of Common Stock to provide for the full exercise of
the outstanding Placement Warrants (the "Warrant Shares").
5. REGISTRATION RIGHTS. Buyer (and its assignees and transferees)
shall be granted demand registrations pursuant to a Registration Rights
Agreement reasonably acceptable to Buyer and the Company.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. The obligation
of the Company hereunder to issue and sell the Placement Warrants to Buyer at
the Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions thereto, provided that these conditions are for
the Company's sole benefit and may be waived by the Company at any time in its
sole discretion:
(a) Buyer shall have executed this Agreement and delivered
the same to the Company.
(b) Buyer shall have delivered the Buyer Purchase Price in
accordance with Section 1(b) above.
(c) The representations and warranties of Buyer shall be
true and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date), and Buyer shall
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have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by Buyer at or prior to the Closing Date.
(d) No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE. The obligation
of Buyer hereunder to purchase the Placement Warrant at the Closing is subject
to the satisfaction, at or before the Closing Date of each of the following
conditions, provided that these conditions are for Buyer's sole benefit and may
be waived by Buyer at any time in its sole discretion:
(a) The Company shall have executed this Agreement and
delivered the same to Buyer.
(b) The Company shall have delivered to Buyer a duly
executed Placement Warrant in accordance with Section 1(b) above.
(c) The representations and warranties of the Company shall
be true and correct in all material respects as of the date when made and as of
the Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date.
(d) No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
(e) No event shall have occurred which could reasonably be
expected to have a material adverse effect on the Company.
(f) The Company shall have executed an Underwriting
Agreement with the underwriter for the IPO.
8. GOVERNING LAW; MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE ENFORCED,
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE
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PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION
OF THE UNITED STATES FEDERAL COURTS LOCATED IN NEW YORK CITY, NEW YORK WITH
RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY REGISTERED FIRST CLASS MAIL SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING
REASONABLE ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH
SUCH DISPUTE.
(b) COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
(c) HEADINGS. The headings of this Agreement are for
convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
(d) SEVERABILITY. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor Buyer makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the party to be charged with enforcement.
(f) NOTICES. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered
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personally or by courier (including a recognized overnight delivery service) or
by facsimile and shall be effective five days after being placed in the mail, if
mailed by regular United States mail, or upon receipt, if delivered personally
or by courier (including a recognized overnight delivery service) or by
facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company: China Pacific Acquisition Corp.
00/X Xxxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxx, Xxxxx
Attention: Dato' Sin Just Xxxx
Facsimile:
With a copy to: Reitler Xxxxx & Xxxxxxxxxx LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx Xxxxx
Facsimile: 000-000-0000
If to Buyer:
Facsimile:
Each party shall provide notice to the other party of any change in address.
(g) WAIVER OF CLAIMS; INDEMNIFICATION. Buyer hereby waives
any and all rights to assert any present or future claims, including any right
of rescission, against the Company and X X Xxxxxxxxx & Co, LLC (the
"Underwriter") with respect to its purchase of the Company Placement Warrant,
and agrees to indemnify and hold the Company and the Underwriter in the IPO
harmless from all losses, damages or expenses that relate to claims or
proceedings brought against the Company, or such Underwriter by Buyer of the
Company Placement Warrant or its transferees, assigns or any subsequent holder
of the Company Placement Warrant.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns,
provided, however, that Buyer shall not have the right to assign any of its
rights hereunder to purchase Company Placement Warrant to any other person.
(i) THIRD PARTY BENEFICIARIES. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person; provided that Section 8(g) is intended to benefit
the Underwriter and shall be enforceable against Buyer by the Underwriter.
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(j) FURTHER ASSURANCES. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
(l) FURTHER AGREEMENT. Buyer agrees to enter into an
agreement or execute a letter confirming the voting obligations and other
restrictions pertaining to the Company Placement Warrants upon request of the
Underwriter for the IPO.
* * *
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IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this
Agreement to be duly executed as of the date first above written.
CHINA PACIFIC ACQUISITION CORP.
By: __________________________
Name:
Title:
BUYER
By: ___________________________
Name:
