CLASS A COMMON STOCK PURCHASE WARRANT
EXHIBIT
B
NEITHER
THE OFFER NOR THE SALE OF THIS CLASS A WARRANT OR THE SHARES ISSUABLE UPON THE
EXERCISE OF THIS CLASS A WARRANT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN A
SECURITIES PURCHASE AGREEMENT DATED AS OF JUNE 1, 2009, NEITHER THIS CLASS A
WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT
OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE, CUSTOMARY FOR OPINIONS
OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED UNDER
THE ACT OR UNLESS SOLD PURSUANT TO RULE 144 OR REGULATION D OR REGULATION S
UNDER THE ACT. FURTHER, HEDGING TRANSACTIONS WITH REGARD TO THE
WARRANTS OR SHARES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.
CLASS
A COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value
received, _______________________________, or its registered assigns,
(the “Holder”) is
entitled to purchase from TRESTLE HOLDING, INC. (to be renamed
MoqiZone Holding Corporation), a Delaware corporation, (the “Company”), at any time or from
time to time during the period specified in Section 2 hereof, _____________
( ), which represents that number of shares of the Company’s common
stock, $0.001 par value per share (the “Common Stock”), as shall be
equal to fifty percent (50%) of the number of shares of Common Stock that are
issuable upon conversion of the shares of Series A Preferred Stock of the
Company (the “Conversion
Shares”) to be received by the Holder in exchange for his or
its Note (ie. 2,778 Conversion Shares for each $10,000 principal amount of Note
purchased and $1,000 Stated Value of each share of Series A Preferred Stock
received in exchange for such Note), all pursuant to the terms and conditions of
the “Securities Purchase
Agreement” (as hereinafter defined), at an exercise price of equal to
(U.S.) $2.50 per share (the “Exercise Price”).
As used
herein, the term “Class A
Warrant Shares” shall mean the shares of Common Stock that are
purchasable hereunder. The number of Class A Warrant Shares and the
Exercise Price per Class A Warrant Share are subject to adjustment as provided
in Section 4 hereof. The term “Class A Warrants” means this
Class A Warrant and the other Class A Warrants issued pursuant to that certain
Securities Purchase Agreement, dated as of June 1, 2009 (the “Securities Purchase
Agreement”), by and among the Company, the “MoqiZone Group,” the other
“Corporate Parties” (as defined therein), and the Investors listed on the
execution page thereof.
Unless
otherwise defined in this Class A Warrant, all capitalized terms, when used
herein, shall have the same meaning as is defined in the Securities Purchase
Agreement.
This
Class A Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of
Exercise.
a. Procedure. Subject to the
provisions hereof, this Class A Warrant may be exercised by the Holder, in whole
or in part, by the surrender of this Class A Warrant, together with a completed
exercise agreement in the form attached hereto (the “Exercise Agreement”), to the
Company during normal business hours on any day that banks are generally open
for business in New York City (a “Business Day”) at the
Company’s principal executive offices (or such other office or agency of the
Company as it may designate by notice to the Holder), and upon payment to the
Company in cash, by certified or official bank check or by wire transfer for the
account of the Company of the Exercise Price for the Class A Warrant Shares
specified in the Exercise Agreement for the Class A Warrant Shares specified in
the Exercise Agreement. Shares shall have been registered for resale pursuant to
an effective registration statement. The Class A Warrant Shares so
purchased shall be deemed to be issued to the Holder or such Holder’s designee,
as the record owner of such shares, as of the close of business on the date on
which the completed Exercise Agreement shall have been delivered, and payment
shall have been made for such shares as set forth above. Certificates
for the Class A Warrant Shares so purchased, representing the aggregate number
of shares specified in the Exercise Agreement, shall be delivered to the Holder
(without restrictive legend thereon when such exercise occurs while a
registration statement registering under the Securities Act of 1933, as amended
(the “Securities Act”)
the resale of the Class A Warrant Shares so purchased is effective or such Class
A Warrant Shares so purchased may be resold by the Holder pursuant to Rule 144
or any similar successor rule) within a reasonable time, not exceeding three (3)
Business Days, after this Class A Warrant shall have been so
exercised. The certificates so delivered shall be in such
denominations as may be requested by the Holder and shall be registered in the
name of the Holder or such other name as shall be designated by the
Holder. If this Class A Warrant shall have been exercised only in
part, then, at the option of the Holder (i) the Holder may surrender this Class
A Warrant to the Company and, unless this Class A Warrant has expired, the
Company shall, at its expense, within a reasonable time, not exceeding three (3)
Business Days, after this Class A Warrant shall have been so exercised, deliver
to the Holder a new Class A Warrant representing the number of shares with
respect to which this Class A Warrant shall not then have been exercised, or
(ii) the Holder may retain this Class A Warrant and the Class A Warrant Shares
purchasable under this Class A Warrant shall be reduced by such number of Class
A Warrant Shares so exercised by the Holder and properly delivered by the
Company hereunder.
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b. Exercise
Limit.
(i) Notwithstanding
anything to the contrary set forth in this Class A Warrant, at no time may a
Holder of this Class A Warrant exercise their Class A Warrant if the number of
shares of Common Stock to be issued pursuant to such exercise would cause the
number of shares of Common Stock owned by such Holder at such time to exceed,
when aggregated with all other shares of Common Stock owned by such Holder and
its affiliates at such time, the number of shares of Common Stock which would
result in such Holder, its affiliates, any investment manager having
discretionary investment authority over the accounts or assets of such Holder,
or any other persons whose beneficial ownership of Common Stock would be
aggregated with such Holder’s for purposes of Section 13(d) and Section 16 of
the Exchange Act, beneficially owning (as determined in accordance with Section
13(d) of the Exchange Act and the rules thereunder) in excess of 9.99% of the
then issued and outstanding shares of Common Stock; provided, however, that upon
a Holder of this Class A Warrant providing the Corporation with sixty-one (61)
day Waiver Notice that such Holder would like to waive this Section (b)(i) with
regard to any or all shares of Common Stock issuable upon exercise of this Class
A Warrant, this Section (b)(i) shall be of no force or effect with regard to
those shares of Common Stock referenced in the Waiver Notice; provided, further,
that during the sixty-one (61) day period prior to the expiration of the
Exercise Period, the Holder may waive this Section 1(b)(i) by providing a Waiver
Notice at any time during such sixty-one (61) day period; provided, further,
that any Waiver Notice provided during the sixty-one (61) day period prior to
the expiration of the Exercise Period will not be effective until the last day
of the Exercise Period.
2. Period of
Exercise.
This Class A Warrant is exercisable,
commencing on or after the consummation of the Trestle Reverse Split and the
filing by Trestle with the Secretary of State of the State of Delaware of the
Certificate of Designations for the Series A Preferred Stock, and may be
exercised at any time or from time to time thereafter, until 6:00 p.m., New
York, New York time on May 31, 2012, when this Class A Warrant shall expire (the
“Exercise
Period”).
3. Certain
Agreements of the Company.
The
Company hereby covenants and agrees as follows:
a. Shares to
be Fully Paid. All Class A
Warrant Shares will, upon issuance in accordance with the terms of this Class A
Warrant, be validly issued, fully paid, and non-assessable and free from all
taxes, liens, and charges with respect to the issue thereof.
b. Reservation
of Shares. During the
Exercise Period, the Company shall at all times have authorized, and reserved
for the purpose of issuance upon exercise of this Class A Warrant, a sufficient
number of shares of Common Stock to provide for the exercise of this Class A
Warrant.
c. Listing. If the Company’s
Common Stock is listed as of the date of this Class A Warrant, or if so listed
in the future, the Company shall maintain its listing of its Common Stock on
each national securities exchange or automated quotation system, as the case may
be, and shall maintain such listing of any other shares of capital stock of the
Company issuable upon the exercise of this Class A Warrant if and so long as any
shares of the same class shall be listed on such national securities exchange or
automated quotation system.
d. Certain
Actions Prohibited. The Company will
not, by amendment of its charter or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of this
Class A Warrant and in the taking of all such action as may reasonably be
requested by the Holder of this Class A Warrant in order to protect the exercise
privilege of the Holder of this Class A Warrant against dilution or other
impairment, consistent with the tenor and purpose of this Class A
Warrant. Without limiting the generality of the foregoing, the
Company (i) will not increase the par value of any shares of Common Stock
receivable upon the exercise of this Class A Warrant above the Exercise Price
then in effect, and (ii) will take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Class A
Warrant.
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e. Successors
and Assigns. This Class A
Warrant will be binding upon any entity succeeding to the Company by merger,
consolidation, or acquisition of all or substantially all the Company’s
assets.
f. Delivery
of Common Stock by Electronic Transfer. In lieu of delivering
physical certificates representing the Common Stock issuable upon exercise,
provided the Company’s transfer agent is participating in the Depository Trust
Company (“DTC”) Fast
Automated Securities Transfer program and the Company has activated such
programs, upon request of the Holder and its compliance with the provisions
contained in Section 1, the Company shall use its best efforts to cause its
transfer agent to electronically transmit the Common Stock issuable upon
exercise to the Holder by crediting the account of Holder’s Prime Broker with
DTC through its Deposit Withdrawal Agent Commission system.
4. Antidilution
Provisions. The Exercise
Price and the number of Class A Warrant Shares, as the case may be, shall be
subject to adjustment from time to time as provided in this Section 4; provided,
that the anti-dilution adjustments contemplated by Section 4e below shall expire
on a date which shall be the twelve (12) month anniversary of the effective date
of the Registration Statement. In the event that any adjustment
of the Exercise Price as required herein results in a fraction of a cent, such
Exercise Price shall be rounded down to the nearest cent.
a. Reorganization,
Consolidation, Merger, etc.; Reclassification. In case at any
time or from time to time, the Company shall effect any merger, reorganization,
restructuring, reverse stock split, consolidation, sale of all or substantially
all of the Company’s assets or any similar transaction or related transactions
(each such transaction, a “Fundamental Change”), then, in
each such case, as a condition to the consummation of such a transaction, proper
and adequate provision shall be made by the Company whereby the Holder of this
Warrant, on the exercise hereof, at any time after the consummation of such
Fundamental Change, shall receive, in lieu of the Warrant Shares issuable on
such exercise prior to such consummation or such effective date, the stock and
other securities and property (including cash) to which such Holder would have
been entitled upon such consummation of a Fundamental Change if such Holder had
so exercised this Warrant, immediately prior thereto.
If the Company at any time shall, by
reclassification or otherwise, change the Common Stock into the same or a
different number of securities of any class or classes that may be issued or
outstanding, this Warrant shall thereafter be deemed to evidence the right to
purchase an adjusted number of such securities and kind of securities as would
have been issuable as the result of such change with respect to the Common Stock
immediately prior to such reclassification or other change.
b. Dissolution. In the event of
any dissolution of the Company following the transfer of all or substantially
all of its properties or assets, the Company, prior to such dissolution, shall
at its expense deliver or cause to be delivered the stock and other securities
and property (including cash, where applicable) receivable by the Holder of this
Warrant after the effective date of such dissolution pursuant to this Article to
a bank or trust company (a “Trustee”) as trustee for the
Holder of this Warrant.
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c. Continuation
of Terms. Upon any
Fundamental Change or transfer (and any dissolution following any transfer)
referred to in this Article, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to any other securities and
property receivable on the exercise of this Warrant after the consummation of
such Fundamental Change or transfer or the effective date of dissolution
following any such transfer, as the case may be, and shall be binding upon the
issuer of any other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the terms of
this Warrant as provided in Section 4(d). In the event this Warrant does not
continue in full force and effect after the consummation of the transaction
described in this Section, then only in such event will the Company’s securities
and property (including cash, where applicable) receivable by the Holder of the
Warrants be delivered to the Trustee as contemplated by Section
4(b).
d. Extraordinary
Events Regarding Common Stock. In the event that
the Company shall (a) issue additional shares of Common Stock as a dividend or
other distribution on outstanding Common Stock, (b) subdivide its outstanding
shares of Common Stock, or (c) combine its outstanding shares of the Common
Stock into a smaller number of shares of the Common Stock, then, in each such
event, the Exercise Price shall, simultaneously with the happening of such
event, be adjusted by multiplying the then Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Exercise Price then in effect. The
Exercise Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described in this Section 4d. The number of
Warrant Shares that the Holder of this Warrant shall thereafter, on the exercise
hereof as provided in this Section, be entitled to receive shall be adjusted to
a number determined by multiplying the number of Warrant Shares that would
otherwise (but for the provisions of this Section) be issuable on such exercise
by a fraction of which (a) the numerator is the Exercise Price that would
otherwise (but for the provisions of this Section) be in effect, and (b) the
denominator is the Exercise Price in effect on the date of such
exercise.
e. Subsequent
Offerings. If the Company
shall issue any shares of its Common Stock, or any other note, debenture,
warrant, option or other security that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive Common Stock (each a “Common Stock Equivalent” and
collectively, “Common Stock
Equivalents”) at a price per share that shall be less than
the Fixed Exercise Price (as defined below) in effect on such date (the “Subsequent Offering Price”),
the Exercise Price shall be adjusted downward to a price determined by
multiplying the Exercise Price by the following quotient (expressed in decimal
form):
i. the
sum of (w) the Exercise Price in effect before the issuance of such new
securities multiplied by the number of shares of the Company’s Common Stock then
issued and outstanding and (x) the consideration, if any, received by or deemed
to have been received by the Company on the issue of such new Common Stock or
Common Stock Equivalent by:
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ii. the
sum of (y) the number of shares of the Company’s Common Stock then issued and
outstanding immediately prior to the issuance of such new securities and (z) the
number of additional shares of Common Stock issued or issuable in connection
with the issuance of such Common Stock Equivalents.
Notwithstanding
the foregoing, no adjustment in the Exercise Price shall be made for shares of
Common Stock issued or Common Stock Equivalents issued, in connection with any
of the following: (a) Common Stock or Common Stock Equivalents issued or
issuable in connection with any securities that are outstanding as at the date
of this Warrant, (b) Common Stock or Common Stock Equivalents issued or issuable
under the Securities Purchase Agreement (including this Warrant); (c) Common
Stock or Common Stock Equivalents issued or issuance as “Performance Warrants”
(described in the Memorandum) and/or pursuant to an employee benefit plan,
approved by the Company’s board of directors, for directors, officers,
employees, advisors or consultants of the Company, (d) payment of interest on
any outstanding Notes or dividends on outstanding shares of Series A Preferred
Stock, (e) Common Stock or Common Stock Equivalents issued or issuable in full
or partial consideration in connection with a merger, consolidation or purchase
of substantially all of the securities or assets of a corporation or other
entity or (f) any warrants issued to the placement agent and its designees for
the transactions contemplated by the Securities Purchase Agreement.
For
purposes of this Section, the term “Fixed Exercise Price” shall
mean initially $2.50, subject to adjustment in the event that any of the
anti-dilution provisions of this Section 4 shall have resulted in a change in
such Fixed Exercise Price prior to the occurrence of any event that would
represent an additional adjustment in such Fixed Exercise Price, as so
adjusted.
f. Notice of
Adjustment. Upon the
occurrence of any event which requires any adjustment of the Exercise Price,
then, and in each such case, the Company shall give notice thereof to the Holder
of this Class A Warrant, which notice shall state the Exercise Price resulting
from such adjustment and the increase or decrease in the number of Class A
Warrant Shares purchasable at such price upon exercise, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Such calculation shall be certified by the
Chief Financial Officer of the Company.
g. Minimum
Adjustment of Exercise Price. No adjustment of
the Exercise Price shall be made in an amount of less than 1% of the Exercise
Price in effect at the time such adjustment is otherwise required to be made,
but any such lesser adjustment shall be carried forward and shall be made at the
time and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
h. No
Fractional Shares. No fractional
shares of Common Stock are to be issued upon the exercise of this Class A
Warrant, but the Company shall pay a cash adjustment in respect of any
fractional share which would otherwise be issuable in an amount equal to the
same fraction of the average Market Price per share of the Common Stock for the
five (5) Trading Days immediately prior to the date of such
exercise.
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i. Certain
Definitions.
i. “Bloomberg” shall mean Bloomberg, L.P.
(or any successor to its function of reporting stock prices).
ii. “Market
Price” means, as
of any Trading Day, (i) the average of the last reported sale prices for the
shares of Common Stock on a national securities exchange which is the principal
trading market for the Common Stock for the five (5) Trading Days immediately
preceding such date as reported by Bloomberg or (ii) if no national securities
exchange is the principal trading market for the shares of Common Stock, the
average of the last reported sale prices on the principal trading market for the
Common Stock during the same period as reported by Bloomberg, or (iii) if market
value cannot be calculated as of such date on any of the foregoing bases, the
Market Price shall be the fair market value as reasonably determined in good
faith by (A) the Board of Directors of the Company, or (B) at the option of a
majority-in-interest of the holders of the outstanding Class A Warrants by an
independent investment bank of nationally recognized standing in the valuation
of businesses similar to the business of the Company. The manner of
determining the Market Price of the Common Stock set forth in the foregoing
definition shall apply with respect to any other security in respect of which a
determination as to market value must be made hereunder.
iii. “Common
Stock,” for
purposes of this Section 4, includes the Common Stock, without par value per
share, and any additional class of stock of the Company having no preference as
to dividends or distributions on liquidation, provided that the shares
purchasable pursuant to this Class A Warrant shall include only shares of Common
Stock, $0.001 par value per share, in respect of which this Class A Warrant is
exercisable, or shares resulting from any subdivision or combination of such
Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Section 4(e)
hereof, the stock or other securities or property provided for in such
Section.
iv. “Trading
Day” shall mean any day on which the Common Stock is traded for any
period on the principal securities exchange or other securities market on which
the Common Stock is then being traded.
5. Issue
Tax. The
issuance of certificates for Class A Warrant Shares upon the exercise of this
Class A Warrant shall be made without charge to the Holder of this Class A
Warrant or such shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the Holder of this Class A
Warrant.
6. No Rights
or Liabilities as a Stockholder. This
Class A Warrant shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company. No provision of this Class A
Warrant, in the absence of affirmative action by the Holder to purchase Class A
Warrant Shares, and no mere enumeration herein of the rights or privileges of
the Holder, shall give rise to any liability of the Holder for the Exercise
Price or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
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7. Transfer, Exchange, and
Replacement of Class A Warrant.
a. Restriction
on Transfer. This Class A
Warrant and the rights granted to the Holder are transferable, in whole or in
part, upon surrender of this Class A Warrant, together with a properly executed
assignment in the form attached hereto, at the office or agency of the Company
referred to in Section 7(e) below, provided, however, that any
transfer or assignment shall be subject to the conditions set forth in Section
7(f) hereof and to the applicable provisions of the Securities Purchase
Agreement. Until due presentment for registration of transfer on the
books of the Company, the Company may treat the registered holder hereof as the
owner and holder hereof for all purposes, and the Company shall not be affected
by any notice to the contrary. Notwithstanding anything to the
contrary contained herein, the registration rights described in Section 8 are
assignable only in accordance with the provisions of the Registration Rights
Agreement.
b. Class A
Warrant Exchangeable for Different Denominations. This Class A
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Section 7(e) below, for new Class A
Warrants of like tenor representing in the aggregate the right to purchase the
number of shares of Common Stock, in not less than 1,000 increments, which may
be purchased hereunder, each of such new Class A Warrants to represent the right
to purchase such number of shares as shall be designated by the Holder at the
time of such surrender.
c. Replacement
of Class A Warrant. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction,
or mutilation of this Class A Warrant and, in the case of any such loss, theft,
or destruction, upon delivery of an indemnity agreement reasonably satisfactory
in form and amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Class A Warrant, the Company, at its expense,
will execute and deliver, in lieu thereof, a new Class A Warrant of like
tenor.
d. Cancellation;
Payment of Expenses. Upon the
surrender of this Class A Warrant in connection with any transfer, exchange, or
replacement as provided in this Section 7, this Class A Warrant shall be
promptly canceled by the Company. The Company shall pay all taxes
(other than securities transfer taxes) and all other expenses (other than legal
expenses, if any, incurred by the Holder) and charges payable in connection with
the preparation, execution, and delivery of Class A Warrants pursuant to this
Section 7.
e. Register. The Company shall
maintain, at its principal executive offices (or such other office or agency of
the Company as it may designate by notice to the Holder), a register for this
Class A Warrant, in which the Company shall record the name and address of the
person in whose name this Class A Warrant has been issued, as well as the name
and address of each transferee and each prior owner of this Class A
Warrant.
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f. Exercise
or Transfer Without Registration. If, at the time
of the surrender of this Class A Warrant in connection with any exercise,
transfer, or exchange of this Class A Warrant, this Class A Warrant (or, in the
case of any exercise, the Class A Warrant Shares issuable hereunder), shall not
be registered under the Securities Act and under applicable state securities or
blue sky laws, the Company may require, as a condition of allowing such
exercise, transfer, or exchange, (i) that the Holder furnish to the Company a
written opinion of counsel, which opinion and counsel are acceptable to the
Company, to the effect that such exercise, transfer, or exchange may be made
without registration under the Securities Act and under applicable state
securities or blue sky laws, (ii) that the Holder execute and deliver to the
Company an investment letter in form and substance reasonably acceptable to the
Company and (iii) that the transferee be an “accredited investor” as defined in
Rule 501(a) promulgated under the Securities Act; provided, however, that no such
opinion, letter or status as an “accredited investor” shall be required in
connection with a transfer pursuant to Rule 144 under the Securities
Act. The first Holder of this Class A Warrant, by taking and holding
the same, represents to the Company that such Holder is acquiring this Class A
Warrant for investment and not with a view to the distribution
thereof.
8. Registration
Rights. The initial
Holder of this Class A Warrant (and certain assignees thereof) is entitled to
the benefit of such registration rights in respect of the Class A Warrant Shares
as are set forth in the Registration Rights Agreement dated as of June 1, 2009
by and among the Company and the investors listed on the execution page thereof
(the “Registration Rights
Agreement”).
9. Redemption. In the event that
the Company shall have deployed its MoqiZone WiMax Network in not less than 700
Internet cafés in the PRC (a “Redemption Event”), the
Company shall thereafter have the right (but not the obligation), upon thirty
(30) days prior written notice to the Holder (the “Redemption Notice”), to redeem
all and not less than all of the Class A Warrants for a price of $0.001 per
Class A Warrant Share; provided, that any Holder may elect to exercise this
Warrant at any time prior to the date fixed for redemption in such Redemption
Notice.
10. Notices. All notices, requests,
and other communications required or permitted to be given or delivered
hereunder to the Holder of this Class A Warrant shall be in writing, and shall
be (i) personally delivered, (ii) sent by certified or registered mail or by
recognized overnight mail courier, postage prepaid and addressed or (iii) upon
hand delivery by telex (with correct answer back received), telecopy, e-mail or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received),
to the Holder at the address shown for the Holder as provided in the Securities
Purchase Agreement, or at such other address as shall have been furnished to the
Company by notice from the Holder. All notices, requests, and other
communications required or permitted to be given or delivered hereunder to the
Company shall be addressed to ______________________________________, with a
copy to [ ], or at such other address as shall have been furnished to
the Holder of this Class A Warrant by notice from the Company. All
notices, requests, and other communications shall be deemed to have been given
either at the time of the receipt thereof by the person entitled to receive such
notice at the address of such person for purposes of this Section 10, or, if
mailed by registered or certified mail or with a recognized overnight mail
courier upon deposit with the United States Post Office or such overnight mail
courier, if postage is prepaid and the mailing is properly addressed, as the
case may be.
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11. Governing
Law. This Class A Warrant 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 performed entirely within such state, without regard
to the principles of conflict of laws. The Company hereby submits to
the exclusive jurisdiction of the United States federal courts and New York
state courts located in New York, New York with respect to any dispute arising
under this Class A Warrant, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby. The Company
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding. The Company further agrees that service of
process upon it mailed by first class mail shall be deemed in every respect
effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the Holder’s right to serve
process in any other manner permitted by law. 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.
12. Miscellaneous.
a. Amendments. This Class A
Warrant and any provision hereof may be amended by an instrument in writing
signed by the Company and holders of a majority of the then-unexercised Class A
Warrant Shares underlying the Class A Warrants issued pursuant to the Securities
Purchase Agreement. All such amendments shall be binding to all
Holders of Class A Warrants issued pursuant to the Securities Purchase
Agreement.
b. Descriptive
Headings. The descriptive
headings of the several sections of this Class A Warrant are inserted for
purposes of reference only, and shall not affect the meaning or construction of
any of the provisions hereof.
c. Remedies. The
Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holder, by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this
Class A Warrant will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Class A Warrant, that
the Holder shall be entitled, in addition to all other available remedies at law
or in equity, and in addition to the penalties assessable herein, to an
injunction or injunctions restraining, preventing or curing any breach of this
Class A Warrant and to enforce specifically the terms and provisions thereof,
without the necessity of showing economic loss and without any bond or other
security being required.
d. Facsimile
Signature. This Class A Warrant may be issued to the Holder
containing a facsimile signature of Xxxxxxxx Xxxxxx, the Chief Executive Officer
of the Company; which facsimile signature the Company acknowledges and agrees
shall have the same validity and enforceability as those the same were a ribbon
original signature.
[remainder of page intentionally left
blank]
10
IN WITNESS WHEREOF, the
Company has caused this Class A Warrant to be signed by its duly authorized
officer.
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(to
be renamed MoqiZone Holding Corporation)
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By:
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Name:
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Title:
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Dated as
of ___________ __, 2009
FORM
OF EXERCISE AGREEMENT
Dated: ________ __,
20__
To:
[ ]
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1.
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The
undersigned, pursuant to the provisions set forth in the within Class A
Warrant, hereby agrees to purchase ________ shares of Common Stock covered
by such Class A Warrant, and makes payment herewith in full therefor at
the price per share provided by such Class A Warrant in cash or by
certified or official bank check or by wired funds in the amount of
$_______.
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2.
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Regulation S. If the
Holder received the Warrant pursuant to Regulation
S:
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(a) I,
[ ],
the Holder of the Warrant certify that I am not a U.S. person and am not
exercising the Warrant on behalf of a U.S. Person;
(b)
Attached hereto is a written opinion of counsel to the effect that the Warrant
and the Warrant Shares to be delivered upon the exercise of the Warrant have
been registered under the Act or are exempt from registration thereunder
pursuant to Regulation S promulgated under the Act.
Please
issue a certificate or certificates for such shares of Common Stock in the name
of and pay any cash for any fractional share to:
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Name:
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Signature:
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Address:
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Note:
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The
above signature should correspond exactly with the name on the face of the
within Class A Warrant, if
applicable.
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and, if
said number of shares of Common Stock shall not be all the shares purchasable
under the within Class A Warrant, a new Class A Warrant is to be issued in the
name of said undersigned covering the balance of the shares purchasable
thereunder less any fraction of a share paid in cash.
FORM
OF ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned hereby sells, assigns, and transfers all the rights of the
undersigned under the within Class A Warrant, with respect to the number of
shares of Common Stock covered thereby set forth herein below, to:
Name of
Assignee Address No of
Shares
, and
hereby irrevocably constitutes and appoints ___________________________________
as agent and attorney-in-fact to transfer said Class A Warrant on the books of
the within-named corporation, with full power of substitution in the
premises.
Dated: ________
__, 20__
In the
presence
of:
_______________________________________
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Name:
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Signature:
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Title
of Signing Officer or Agent (if any):
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Address:
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Note:
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The
above signature should correspond exactly with the name on the face of the
within Class A Warrant, if
applicable.
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