Contract
EXHIBIT 4.1
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THIS
WARRANT AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE PLEDGED,
TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR DELIVERY OF
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE WITH THE SECURITIES ACT OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE
144 UNDER THE SECURITIES ACT.
EXPEDITE 4,
INC.
Warrant
for the Purchase of Common Stock
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No.
2010-[ ]
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_________
Shares
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FOR VALUE
RECEIVED, Expedite 4, Inc., a Delaware corporation (the “Company”), hereby
certifies that [________________], its designee or its permitted assigns is
entitled to purchase from the Company, at any time or from time to time
commencing on March 29, 2010 (the “Issuance Date”) and
prior to 5:00 P.M., New York City time, on March 28, 2014 (the “Exercise Period”),
[________________] fully paid and non-assessable shares of common stock, $0.001
par value per share, of the Company for a purchase price per share of $5.50 (subject to adjustment at set forth in Section 3),
pursuant to that certain Private Placement
Memorandum dated February 1,
2010, and the Supplement
thereto dated March 16, 2010 (collectively, the “Memorandum”). Hereinafter, (i) said common stock,
$0.001 par value per share, of the Company, are
referred to as the “Common Stock”; (ii)
the Common Stock (subject to adjustment as set forth herein) purchasable
hereunder or under any other Warrant (as hereinafter defined) are referred to as
the “Warrant
Shares”; (iii) the aggregate purchase price payable for the Warrant
Shares purchasable hereunder is referred to as the “Aggregate Warrant
Price”; (iv) the price payable (initially $5.50 per share subject to
adjustment as set forth herein) for each of the Warrant Shares hereunder is
referred to as the “Per Share Warrant
Price”; (v) this Warrant, all similar Warrants issued on the date hereof
and all warrants hereafter issued in exchange or substitution for this Warrant
or such similar Warrants are referred to as the “Warrants”; and (vi)
the holder or their permitted or
registered assigns of this Warrant is referred to as the “Holder” and the
holder of this Warrant and all other Warrants and Warrant Shares are referred to
as the “Holders” and Holders
of more than fifty percent (50%) of the Warrant Shares then issuable upon
exercise of then outstanding Warrants are referred to as the “Majority of the
Holders”).
This
Warrant is one of the Warrants to purchase Common Stock issued pursuant to a
Subscription Agreement (the “Subscription
Agreement”)
between the Company and the Subscriber named therein in connection with a
private placement by the Company of units (the “Units”), each Unit
consisting of two (2) shares of Common Stock and a Warrant to purchase one (1)
shares of Common Stock, as further described in the Memorandum dated February 1,
2010. By acceptance of this Warrant, the Holder agrees to comply with
all applicable provisions of the Subscription Agreement. Defined terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Memorandum.
1. Exercise
of Warrant.
(a) Except as
set forth in Sections
1(d) and (e) below, this Warrant may be exercised in whole at any time,
or in part from time to time, by the Holder during the Exercise Period by the
surrender of this Warrant (with the exercise notice, in the form attached hereto
(the “Exercise
Notice”), duly executed) at the address set forth in Section 10(a) hereof, together
with payment
in immediately available funds of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part, with payment
for the Warrant Shares made by certified or official bank check payable to the
order of, or wire transfer of immediately available funds to, the Company;
or
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(b) If this
Warrant is exercised in part, this Warrant must be exercised for a number of
whole shares of the Common Stock and the Holder is entitled to receive a new
Warrant covering the Warrant Shares that have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon surrender of this Warrant in connection with the
exercise of this Warrant pursuant to the terms hereof, the Company will (i)
issue a certificate or certificates in the name of the Holder for the largest
number of whole shares of the Common Stock to which the Holder shall be entitled
upon such exercise and, if this Warrant is exercised in whole, no fractional
shares of Common Stock are to be issued, but rather the number of shares of
Common Stock to which the Holder shall be entitled, shall be rounded up to the
nearest whole number, and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the proportionate part thereof,
if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
(c) Notwithstanding anything herein to the contrary, in no
event shall the Holder have the right or be required to exercise this Warrant to
the extent, and only to the extent, that as a result of such exercise, the
aggregate number of shares of Common Stock beneficially owned by the Holder, its
affiliates and any “group” (as defined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended and the rules promulgated thereunder
(the “Exchange
Act”)) of which the Holder may be deemed to
be a party (collectively the “Affiliates”) would exceed 9.99% of the outstanding Common Stock
immediately after giving effect to such exercise. For purposes of
this Section, beneficial ownership shall be calculated in accordance with
Sections 13(d) and Section 16(a) of the Exchange Act. The provisions
of this Section
1(d) may be waived by a Holder as to itself
(and solely as to itself) upon not less than sixty-five (65) days prior written
notice to the Company.For purposes of this
Warrant, in determining the number of outstanding shares of Common Stock, the
Holder may rely upon the number of outstanding shares of Common Stock as
reflected in the Company’s most recent annual or quarterly report on Form 10-K
or Form 10-Q, respectively.
(d) If, at
any time after twelve (12) months from the date hereof, there is no effective
Registration Statement registering, or no current prospectus available for, the
resale of the Warrant Shares by the Holder, then this Warrant may also be
exercised at such time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a certificate for the number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
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(A)
=
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the
VWAP on the Trading Day immediately preceding the date of such
election;
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(B)
=
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the
Exercise Price of this Warrant, as adjusted;
and
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(X)
=
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the
number of Warrant Shares issuable upon exercise of this Warrant in
accordance with the terms of this Warrant by means of a cash exercise
rather than a cashless exercise.
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Notwithstanding
the foregoing, the “cashless exercise” feature set forth in this Section 1(d)
shall only be available to the Holder for that portion of the Warrant Shares for
which there is no effective Registration Statement registering, or no current
prospectus available for, the resale of the Warrant Shares by the Holder on the
Effective Date.
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“Trading Day” means
(i) a day on which the Common Stock is traded on a Trading Market or (ii) if the
Common Stock is not listed or quoted on any Trading Market, a day on which the
Common Stock is quoted in the over-the-counter market as reported by the
Over-the-Counter Bulletin Board (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i) or (ii)
hereof, then Trading Day shall mean any day except Saturday, Sunday and any day
which is a federal legal holiday or a day on which banking institutions in the
State of New York or State of Nevada are authorized or required by law or other
governmental action to close. “Trading Market” means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.
(e) Upon
exercise of this Warrant, the Company shall promptly (but in no event later than
ten (10) business days after the date the Exercise Notice is
delivered to the Company (the “Exercise Date”))
issue or cause to be issued and cause to be delivered to or upon the written
order of the Holder (together with such other transfer documentation as may be
reasonably requested by the Company) and in such name or names as the Holder may
designate (provided that, if the Registration Statement (as defined in the
Subscription Agreement) is not effective and the Holder directs the Company to
deliver a certificate for the Warrant Shares in a name other than that of the
Holder or an Affiliate of the Holder, it shall deliver to the Company on the
Exercise Date an opinion of counsel reasonably satisfactory to the Company to
the effect that the issuance of such Warrant Shares in such other name may be
made pursuant to an available exemption from the registration requirements of
the Securities Act and all applicable state securities or blue sky laws), a
certificate for the Warrant Shares issuable upon such exercise, free of
restrictive legends, unless the Registration Statement covering the resale of
the Warrant Shares and naming the Holder as a selling stockholder thereunder is
not then effective or the Warrant Shares are not freely transferable without
volume restrictions pursuant to Rule 144(b) under the Securities Act. The
Holder, or any person permissibly so designated by the Holder to receive Warrant
Shares, shall be deemed to have become the holder of record of such Warrant
Shares as of the Exercise Date.
2. Reservation
of Warrant Shares; Listing. The Company agrees that, prior to the
expiration of this Warrant, the Company shall at all times (a) have authorized
and in reserve, and shall keep available, solely for issuance and delivery upon
the exercise of this Warrant, one hundred (100%) percent of the Common Stock
issuble, from time to
time, upon the exercise of this Warrant, free and clear of all
restrictions on sale or transfer, other than under Federal or state securities
laws, and free and clear of all preemptive rights and rights of first refusal
and (b) if the Company hereafter lists its Common Stock on any national
securities exchange, including NASDAQ, use its commercially reasonable efforts
to keep the Warrant Shares authorized for listing on such exchange upon notice
of issuance. The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Per Share Warrant Price in accordance with the terms hereof, be duly authorized,
validlyissued,
fully paid and nonassessable free from all taxes, liens and charges in respect of the
issue thereof. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of
executing stock certificates, to execute and issue the necessary certificates
for the Warrant Shares upon the exercise of the purchase rights under this
Warrant by the Holder. The Company will take all such action as may be
necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the OTC
Bulletin Board, exchange, trading market of other inter-dealer
electronic quotation system upon which the Common Stock may be
listed.
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3. Certain
Adjustments.
(a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding:
(i) pays a stock dividend or otherwise make a distribution or distributions on
the Common Stock or any other equity or equity equivalent securities payable in
Common Stock (which, for avoidance of doubt, shall not include any Common Stock
issued by the Company upon exercise of this Warrant) (“Common Stock
Equivalents”), (ii) subdivides outstanding shares of Common Stock into a
larger number of shares, (iii) combines (including by way of reverse stock
split) outstanding shares of Common Stock into a smaller number of shares, or
(iv) issues by reclassification of the Common Stock of the Company, then in each
case the Per Share Warrant Price shall be multiplied by a fraction the numerator
of which shall be the number of Common Stock (excluding treasury shares, if any)
outstanding immediately before such event and the denominator of which shall be
the number of shares of Common Stock outstanding immediately after such event
and the number of shares issuable upon exercise of this Warrant shall be
proportionately adjusted. Any adjustment made pursuant to this Section 3(a) shall
become effective at the close of business on the record date for the
determination of stockholders entitled to receive such dividend or distribution
and shall become effective at the close of business on the effective date in the
case of a subdivision, combination or re-classification.
(b) In case
of any capital reorganization or reclassification, or any consolidation or
merger to which the Company is a party other than a merger or consolidation in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of all or substantially all of the assets of the
Company, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company but excluding any exchange of securities or
merger with another corporation in which the Company is a continuing corporation
and that does not result in any reclassification of or similar change in the
Common Stock), the Holder of this Warrant,
upon the exercise hereof at any time thereafter shall be entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consolidation, merger, sale or
other disposition, reclassification, change, conversion or reorganization, the
stock or other securities or property to which such holder would have been
entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section 3(a) or3(b); and in each such case, the terms of this Section 3
shall
be applicable to the shares of stock or other securities properly receivable
upon the exercise of this Warrant after such consolidation,
merger, sale or other disposition, reclassification, change, conversion or
reorganization. The Company shall require the issuer of any shares of
stock or other securities or property thereafter deliverable on the exercise of
this Warrant to be responsible for all of the agreements and obligations of the
Company hereunder. Notice of any such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and of said provisions so proposed to be made, shall be mailed to the Holders of
the Warrants not less than ten (10) days prior to such event. A sale
of all or substantially all of the assets of the Company for a consideration
consisting primarily of securities shall be deemed a consolidation or merger for
the foregoing purposes.
(c) No
adjustment in the Per Share Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least $0.01 per share of
Common Stock; provided, however, that any
adjustments which by reason of this Section 3(c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment; provided, further, however,
that adjustments shall be required and made in accordance with the provisions of
this Section 3
(other than this subsection 3(c)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution, if any, to the Holder
of this Warrant or Common Stock issuable upon the exercise
hereof. All calculations under this Section 3 shall be
made to the nearest cent or to the nearest 1/100th of a share, as the case may
be. Anything in this Section 3 to the
contrary notwithstanding, the Company shall be entitled to make such reductions
in the Per Share Warrant Price, in addition to those required by this Section 3, as it in
its discretion shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable. Anything in this
Section
3 to the contrary notwithstanding, no
adjustment made pursuant to any provision of this Section 3 shall have the net effect
of increasing the Per Share Warrant Price in relation to the split adjusted and
distribution adjusted price of the Common Stock issuable upon
exercise.
(d) Whenever
the Per Share Warrant Price or the number of Warrant Shares is adjusted as
provided in this Section 3 and upon
any modification of the rights of a Holder of Warrants in accordance with this
Section 3, the
Company shall promptly prepare a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holders of the Warrants. The
Company may, but shall not be obligated to unless requested by a Majority of the
Holders, obtain, at its expense, a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors (who may
be the regular auditors of the Company) setting forth the Per Share Warrant
Price and the number of Warrant Shares in effect after such adjustment or the
effect of such modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holders of the Warrants.
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(e) If the
Board of Directors of the Company shall declare any dividend or other
distribution with respect to the Common Stock other than a cash distribution out
of earned surplus, the Company shall mail notice thereof to the Holders of the
Warrants not less than ten (10) days prior to the record date fixed for
determining stockholders entitled to participate in such dividend or other
distribution.
(f) If, as a
result of an adjustment made pursuant to this Section 3, the Holder
of any Warrant thereafter surrendered for exercise shall become entitled to
receive shares of two or more classes of capital stock or Common Stock and other
capital stock of the Company, the Board of Directors (whose determination shall
be conclusive and shall be described in a written notice to the Holder of any
Warrant promptly after such adjustment) shall determine, in good faith, the
allocation of the adjusted Per Share Warrant Price between or among shares or
such classes of capital stock or Common Stock and other capital
stock.
(g) In case
any event shall occur as to which the other provisions of this Section 3 are not
strictly applicable but as to which the failure to make any adjustment would not
fairly protect the purchase rights represented by this Warrant in accordance
with the essential intent and principles of the adjustments set forth in this
Section 3 then,
in each such case, the Board of Directors of the Company shall in good faith
determine the adjustment, if any, on a basis consistent with the essential
intent and principles established herein, necessary to preserve the purchase
rights represented by the Warrants. Upon such determination, the Company will
promptly mail a copy thereof to the Holder of this Warrant and shall make the
adjustments described therein.
4. Fully
Paid Stock; Taxes. The Common Stock represented by each and
every certificate for Warrant Shares delivered on the exercise of this Warrant
shall, subject to compliance by the Holder with the terms hereof, at the time of
such delivery, be duly authorized, validly issued and outstanding, fully paid
and nonassessable, free
from all taxes, liens and charges in respect of the issue thereof and not
subject to preemptive rights or rights of first refusal imposed by any agreement
to which the Company is a party, and the Company will take all such actions as
may be necessary to assure that the par value, if any, per share of the Common
Stock is at all times equal to or less than the then Per Share Warrant
Price. The Company shall pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any Warrant Share or any certificate thereof to the
extent required because of the issuance by the Company of such
security.
5. Registration
Under Act. The Holder shall have the right to participate in the
registration rights granted to purchasers of the Units (as defined in the
Subscription Agreement) pursuant to Section VII of the Subscription Agreement.
By acceptance of this Warrant, the Holder agrees to comply with the provisions
in Section VII of the Subscription Agreement.
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6. Investment
Intent; Limited Transferability.
(a) By
accepting this Warrant, the Holder represents to the Company that it understands
that this Warrant and any securities obtainable upon exercise of this Warrant
have not been registered for sale under Federal or state securities laws and are
being offered and sold to the Holder pursuant to one or more exemptions from the
registration requirements of such securities laws,
as more fully described in each of the Memorandum and Subscription Agreement,
each of which the Holder represents and
warrants that Holder has carefully reviewed. In the absence of
an effective registration of such securities or an exemption therefrom, any
certificates for such securities shall bear the legend set forth on the first
page hereof. The Holder understands that it must bear the economic
risk of its investment in this Warrant and hold any securities obtainable upon
exercise of this Warrant for an indefinite period of time, as this Warrant and
such securities have not been registered under Federal or state securities laws
and therefore cannot be sold unless subsequently registered under such laws,
unless an exemption from such registration is available. The Holder
further represents to the Company, by accepting this Warrant, that it has full
power and authority to accept this Warrant and make the representations set
forth herein.
(b) The
Holder, by its acceptance of this Warrant, represents to the Company that it is
acquiring this Warrant and will acquire any securities obtainable upon exercise
of this Warrant for its own account for investment (and not as a nominee or agent)
and not with a view to, or for sale in connection with, any distribution
thereof in violation of the Securities Act. The Holder agrees, by
acceptance of this Warrant, that this Warrant and any such securities will not
be sold or otherwise transferred unless (i) a registration statement with
respect to such transfer is effective under the Securities Act and any
applicable state securities laws or (ii) such sale or transfer is made pursuant
to one or more exemptions from the Securities Act.
(c) In
addition to the limitations set forth in Section 1 and in
accordance with the legend on the first page hereof, this Warrant may not be
sold, transferred, assigned or hypothecated by the Holder in the absence of (i) an effective registration
statement under the Securities Act as to this Warrant or such Warrant Shares and
registration or qualification of this Warrant or such Warrant Shares under any
applicable U.S. federal or state securities law then in effect or (ii) an
opinion of counsel, reasonably satisfactory to the Company, that such
registration and qualification are not required. Notwithstanding the
foregoing, the restrictions imposed upon the transferability of any of its
rights to acquire the Common Stock or Common Stock issuable on the exercise of
such rights do not apply to transfers from the beneficial owner of any of the
aforementioned securities to its nominee or from such nominee to its beneficial
owner, and shall terminate as to any particular Ordinary Share when (i) such
security shall have been effectively registered under the Securities Act and
sold by the holder thereof in accordance with such registration or (ii) such
security shall have been sold without registration in compliance with Rule 144
under the Securities Act, or (iii) a letter shall have been issued to the Holder
at its request by the staff of the Securities and Exchange Commission
or a ruling shall have been issued to the Holder at its request by the
Securities and Exchange Commission stating that no action shall be recommended
by such staff or taken by the Securities and Exchange Commission, as the case
may be, if such security is transferred without registration under the
Securities Act in accordance with the conditions set forth in such letter or
ruling and such letter or ruling specifies that no subsequent restrictions on
transfer are required. Whenever the restrictions imposed hereunder
shall terminate, as hereinabove provided, the Holder or holder of an Ordinary
Share then outstanding as to which such restrictions have terminated shall be
entitled to receive from the Company, without expense to such holder, one or
more new certificates for the Warrant or for such Common Stock not bearing any
restrictive legend. The Company may treat the registered Holder of this
Warrant as it appears on the Company’s books at any time as the Holder for all
purposes. The Company shall permit any Holder of a Warrant or its
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
Holders of Warrant. All Warrants issued upon the transfer or
assignment of this Warrant will be dated the same date as this Warrant, and all
rights of the holder thereof shall be identical to those of the Holder unless,
in each case, otherwise prohibited by applicable law.
(d) The
Holder has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the Warrants or the exercise of the
Warrants; and (ii) the opportunity to request such additional information which
the Company possesses or can acquire without unreasonable effort or
expense.
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(e) The
Holder did not (i) receive or review any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally available; or
(ii) attend any seminar, meeting or investor or other conference whose attendees
were, to such Holder’s knowledge, invited by any general solicitation or general
advertising.
(f) The
Holder is an “accredited investor” within the meaning of Regulation D or a “non
United States person” (as defined in the Subscription Agreement) under
Regulation S under the Securities Act. Such Holder is acquiring the
Warrants for its own account and not with a present view to, or for sale in
connection with, any distribution thereof in violation of the registration
requirements of the Securities Act, without prejudice, however, to such Holder’s
right, subject to the provisions of the Subscription Agreement and this Warrant,
at all times to sell or otherwise dispose of all or any part of such Warrants
and Warrant Shares.
(g) Either by
reason of such Holder’s business or financial experience or the business or
financial experience of its professional advisors (who are unaffiliated with and
who are not compensated by the Company or any affiliate, finder or selling agent
of the Company, directly or indirectly), such Holder has the capacity to protect
such Holder’s interests in connection with the transactions contemplated by this
Warrant and the Subscription Agreement. The Holder, by its acceptance
of this Warrant, represents to the Company that it is able to fend for itself,
can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in this Warrant. Holder also
represents it has not been organized for the purpose of acquiring this
Warrant.
7. Representations
and Warranties of the Company.
This Warrant has been entered into by the
Holder in reliance upon the following representations and covenants of the
Company:
(a) Authorization. The Warrant has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
(b) Valid Issuance. The Warrant Stock is duly authorized and
reserved for issuance, and when issued, sold and delivered in accordance with
the terms of this Warrant will be duly and validly issued, fully paid and
nonassessable.
(c) No Conflict. The execution and delivery of this Warrant
do not, and the consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of, breach or default (with or without
notice or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit, under, any provision of the Certificate of Incorporation or Memorandum
and Articles of Association, as amended from time
to time, of the Company, any material agreement of the Company filed with the
Commission, or any order, decree, statute, law, ordinance, rule, listing
requirement or regulation applicable to the Company, its properties or assets,
which conflict, violation, default or right would have a material adverse effect
on the business, properties, prospects, financial condition or operations of the
Company.
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8. Loss,
etc., of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Company, if lost,
stolen or destroyed, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver to the Holder a new Warrant of
like date, tenor and denomination.
9. Warrant
Holder Not Stockholder. This Warrant does not confer upon the
Holder any right to vote on or consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, nor any other rights
or liabilities as a stockholder, prior to the exercise hereof; this Warrant
does, however, require certain notices to Holders as set forth
herein.
10. Communication. No
notice or other communication under this Warrant shall be effective or deemed to
have been given unless, the same is in writing and is mailed by first-class
mail, postage prepaid, or via recognized overnight courier with confirmed
receipt, addressed to:
(a) the
Company at Expedite 4, Inc., 88 Guihuayuan, Guanjingcheng, Yujiang, Yingtan
City, Jiangxi Province, P.R. China, Attn: Chief Executive Officer, or other such
address as the Company has designated in writing to the Holder; or
(b) the
Holder at the address last furnished to the Company in writing by the
Holder.
11. Headings. The
headings of this Warrant have been inserted as a matter of convenience and shall
not affect the construction hereof.
12. Applicable
Law. This Warrant will be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
principles of conflict of laws. The Holder hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement
or the transactions contemplated hereby or thereby.
13. Amendment,
Waiver, etc. Except as expressly provided herein, neither this
Warrant nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that any provision hereof may be amended, waived, discharged or
terminated upon the written consent of the Company and the Majority of the
Holders and such amendment, waiver, discharge or termination shall be effective
with respect to the Company and all Holders.
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IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by the undersigned duly authorized
officer, this 29th day
of March, 2010.
| EXPEDITE 4, INC. | |||
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By:
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/s/ | |
| Name: Luping Pan | |||
| Title: Chief Executive Officer | |||
9
FORM
OF EXERCISE NOTICE
(To
be executed by the Holder to exercise the right to
purchase
Common Stock under the foregoing Warrant)
Ladies
and Gentlemen:
|
(1)
|
The
undersigned is the Holder of Warrant No. __________ (the “Warrant”)
issued by Expedite 4, Inc., a Nevada corporation (the “Company”). Capitalized
terms used herein and not otherwise defined herein have the respective
meanings set forth in the Warrant.
|
|
(2)
|
The
undersigned hereby exercises its right to purchase __________ Warrant
Shares pursuant to the Warrant.
|
|
(3)
|
The
Holder shall pay the sum of $_______ to the Company in accordance with the
terms of the Warrant.
|
|
(4)
|
Pursuant
to this Exercise Notice, the Company shall deliver to the Holder
_____________ Warrant Shares in accordance with the terms of the
Warrant.
|
Dated:
_______________, ________
Name of
Holder: _______________________
By:
__________________________________
Name:
________________________________
Title:
_________________________________
(Signature
must conform in all respects to name of Holder as specified on the face of the
Warrant)
10
ASSIGNMENT
FOR VALUE
RECEIVED _______________ (“Assignor”) hereby
sells, assigns and transfers unto ____________________ (“Transferee”) the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________, attorney, to transfer said Warrant
on the books of Exptedite 4, Inc. By acceptance of the foregoing
Warrant, Transferee shall become a Holder under said Warrant and subject to the
rights, obligations and representations of Holder set forth in said
Warrant.
|
ASSIGNOR:
|
||
|
Dated:_______________________
|
Signature:____________________________
|
|
|
Address:_____________________________
|
||
|
TRANSFEREE:
|
||
|
Dated:_______________________
|
Signature:____________________________
|
|
|
Address:_____________________________
|
||
11
PARTIAL
ASSIGNMENT
FOR VALUE
RECEIVED _______________ (“Assignor”) hereby
assigns and transfers unto ____________________ (“Transferee”) the
right to purchase _______ shares of Common Stock, par value $0.001 per share, of
Expedite 4, Inc. covered by the foregoing Warrant, and a proportionate part of
said Warrant and the rights evidenced thereby, and does irrevocably constitute
and appoint ____________________, attorney, to transfer such part of said
Warrant on the books of Expedite 4, Inc. By acceptance of the
proportionate part of foregoing Warrant, Transferee shall become a Holder under
said proportionate part of said Warrant and subject to the rights, obligations
and representations of Holder set forth in said Warrant.
| ASSIGNOR: | ||
|
Dated:_______________________
|
Signature:____________________________
|
|
|
Address:_____________________________
|
||
|
TRANSFEREE:
|
||
|
Dated:_______________________
|
Signature:____________________________
|
|
|
Address:_____________________________
|
||
12
