WARRANT AGREEMENT
Exhibit
4.4 – Form of Warrant Agreement
This
Warrant Agreement (this “Agreement”) made as
of January [__], 2011 between Asia Cork, Inc., a Delaware corporation, with
offices at 3rd Floor,
A Tower of Xxxxxx Xxx, Information Building, No. 72 Second Keji Road, Hi Tech
Zone Xian, China (the “Company”), and Olde
Monmouth Stock Transfer Co., Inc., a [________________], with offices at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, XX 00000 (the “Warrant
Agent”).
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) of
units, consisting of one share of the Company’s common stock, par value $0.0001
per share (“Common
Stock”) and a warrant to purchase one share of Common
Stock (the “Units”) and, in
connection therewith, has determined to issue and deliver (i) up to
[___________] warrants, plus an additional [___________] warrants if
the underwriters’ over-allotment option is exercised in full, to the public
investors (the “Public
Warrants”), all of such Public Warrants being part of the
Units and evidencing the right to purchase one share of Common Stock; and
(ii) ten percent (10%) warrant coverage, to Global Arena Corp. (the “Lead Underwriter”)
and Aegis Capital Corp. (the “Co-Underwriter” and
together with the Lead Underwriter, the “Underwriters”) or its
designees (the “Underwriters’
Warrants” and, together with the Public Warrants, the “Warrants”),
evidencing the right to purchase one Unit, for $[__] per Warrant, subject to
adjustment as described herein; and
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement on Form S-1, No. 333-164893 (the “Registration
Statement”), for the registration, under the Securities Act of 1933, as
amended (the “Act”) of, among other
securities, the Warrants and the Common Stock issuable upon exercise of the
Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as
agent for the Company with respect to and for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this
Agreement.
2. Warrants.
2.1. Form of
Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein, and may have such letters, numbers
or other marks of identification or designation and such legends summaries or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed. Each Warrant shall be dated the date of issuance
thereof and shall be signed by, or bear the facsimile signature of, the Chairman
of the Board or President and Treasurer, Secretary or Assistant Secretary of the
Company and shall bear a facsimile of the Company’s seal. In the
event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
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2.2. Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof. After
countersignature by the Warrant Agent, each Warrant shall be delivered by the
Warrant Agent to the Registered Holder (as defined herein) without further
action by the Company, except as otherwise provide herein.
2.3. Registration.
2.3.1. Warrant
Register. The Warrant Agent shall maintain books (“Warrant Register”),
for the registration of original issuance and the registration of transfer of
the Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the respective
holders thereof in such denominations and otherwise in accordance with
instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered
Holder. Prior to due presentment for registration of transfer
of any Warrant, the Company and the Warrant Agent may deem and treat the person
in whose name such Warrant shall be registered upon the Warrant Register (“Registered Holder”),
as the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
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2.4. Detachability of
Warrants. The securities comprising each Unit will not be
separately transferable until July [___], 2011 (the “Exercisable Date”),
unless the Lead Underwriter informs the Company of its decision to allow earlier
separate trading.
2.5. Warrants and Underwriters’
Warrants. The Underwriters’ Warrants shall have terms
substantially similar to those set forth on Exhibit B attached
hereto.
3. Terms and Exercise of
Warrants.
3.1. Warrant
Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such
Warrant and of this Warrant Agreement, to purchase from the Company the number
of shares of Common Stock stated therein, at the price of $[____] per share,
subject to the adjustments provided in Section 4 hereof (the
“Warrant
Price”).
3.2. Duration of
Warrants. A Warrant may be exercised only during the period
(“Exercise
Period”) commencing on the Exercisable Date and terminating at 5:00 p.m.,
Eastern time on January [___], 2016 (the “Expiration Date”),
provided that if such date shall in the State of New York be a holiday or a day
on which banks are authorized to close, then 5:00PM Eastern time, on the next
following day which in the State of New York is not a holiday or a day on which
banks are authorized to close. Each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date.
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3.3. Exercise of
Warrants.
3.3.1. Payment. Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the County of New York, City and State of
New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company (or
as otherwise agreed to by the Company), the Warrant Price for each full share of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2. Issuance of
Certificates. As soon as practicable on or after the exercise
date, the Warrant Agent shall deposit the proceeds received from the exercise of
any Warrant and upon clearance of the funds in payment of the Warrant Price
shall notify the Company in writing, by mail or telecopy of the exercise of the
Warrant. Promptly following, and in any event within three (3) days
of such notice from the Warrant Agent, the Warrant Agent, on behalf of the
Company, shall cause to be issued and delivered by the Company’s transfer agent
for the Common Stock a certificate or certificates for the number of full shares
of Common Stock to the person or persons entitled to receive the same,
registered in such name or names as may be directed by him, her or it, and if
such Warrant shall not have been exercised in full, a new countersigned Warrant
for the number of shares as to which such Warrant shall not have been
exercised. Warrants may not be exercised by, or securities issued to,
any Registered Holder in any state in which such exercise would be
unlawful.
3.3.3. Valid
Issuance. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
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3.3.4. Date of
Issuance. Each person in whose name any such certificate for
shares of Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the date
of delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.
3.3.5. Warrant Solicitation and
Warrant Solicitation Fee.
a. The
Company has engaged the Underwriters as its agents for the solicitation of the
exercise of the Warrants. The Company, at its cost, will (i) assist
the Underwriters with respect to such solicitation, if requested by the either
the Lead Underwriter or the Co-Underwriter, and (ii) provide the Lead
Underwriter, and direct the Company’s transfer agent and the Warrant Agent to
deliver to the Lead Underwriter, lists of the record owners of the Company’s
Warrants. The Company hereby instructs the Warrant Agent to cooperate
with the Lead Underwriter in every respect in connection with the Underwriters’
solicitation activities, including, but not limited to, providing to the Lead
Underwriter, at the Company’s cost, a list of record holders of the Warrants and
circulating a prospectus or offering circular to holders of the Warrants at the
time of exercise of the Warrants. In addition to soliciting, either
orally or in writing, the exercise of Warrants by a Warrant holder, such
services may also include disseminating information, either orally or in
writing, to Warrant holders about the Company or the market for the Company’s
securities, or assisting in the processing of the exercise of
Warrants.
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b. In
each instance in which a Warrant is exercised, the Warrant Agent shall promptly
give written notice of such exercise to the Company and the Lead Underwriter
(“Warrant Agent’s
Exercise Notice”). Upon the exercise or the deemed exercise of
each Warrant, as applicable, then the Warrant Agent, simultaneously with the
distribution of the Common Stock underlying such Warrant(s) so exercised or
deemed exercised, following receipt of the proceeds to the Company received upon
exercise or deemed exercise, of such Warrant(s), shall immediately, on behalf of
the Company, pay a fee of five percent (5%) of the aggregate Warrant Price to
the Lead Underwriter. Notwithstanding the foregoing, no fee will be
paid to the Lead Underwriter with respect to the exercise by the either the Lead
Underwriter or the Co-Underwriter or either of their affiliates or the Company’s
officers or directors of Warrants purchased by it or them and still held by them
for its or their own account. The Lead Underwriter and the Company
may at any time during business hours, examine the records of the Warrant Agent,
including its ledger of original Warrant certificates returned to the Warrant
Agent upon exercise of Warrants.
c. The
provisions of this Section 3.3.5.
may not be modified, amended or deleted without the prior written consent of the
Lead Underwriter.
4. Adjustments.
4.1. Stock Dividends -
Split-Ups. If after the date hereof, and subject to the
provisions of Section
4.6 below, the number of outstanding shares of Common Stock is increased
by a stock dividend payable in shares of Common Stock, or by a split-up of
shares of Common Stock, or other similar event, then, on the effective date of
such stock dividend, split-up or similar event, the number of shares of Common
Stock issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares of Common Stock.
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4.2. Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the
number of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3. Adjustments in Exercise
Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and
4.2 above, the
Warrant Price shall be adjusted (to the nearest cent) by multiplying such
Warrant Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such adjustment, and (y)
the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
4.4. Replacement of Securities
upon Reorganization, etc. In case of any reclassification or
reorganization of the outstanding shares of Common Stock (other than a change
covered by Sections 4.1 or
4.2 hereof or
that solely affects the par value of such shares of Common Stock), or in the
case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the assets or other
property of the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon the
terms and conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented thereby, the kind and amount of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, reorganization, merger or consolidation, or upon a
dissolution following any such sale or transfer, that the Warrant holder would
have received if such Warrant holder had exercised his, her or its Warrant(s)
immediately prior to such event; and if any reclassification also results in a
change in shares of Common Stock covered by Sections 4.1 or
4.2, then such
adjustment shall be made pursuant to Sections 4.1,
4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4
shall similarly apply to successive reclassifications, reorganizations, mergers
or consolidations, sales or other transfers.
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4.5. Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price or the
number of shares issuable upon exercise of a Warrant, the Company shall give
written notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Upon the occurrence of
any event specified in to Sections 4.1,
4.2, 4.3
or 4.4, then, in any
such event, the Company shall give written notice to the Warrant Agent and to
each Warrant holder, at the last address set forth for such holder in the
warrant register, of the record date or the effective date of the
event. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such event.
4.6. No Fractional
Shares. Notwithstanding any provision contained in this
Warrant Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made
pursuant to this Section 4, the
holder of any Warrant would be entitled, upon the exercise of such Warrant, to
receive a fractional interest in a share, the Company shall, upon such exercise,
pay to the holder cash in an amount equal to the fair market value of such
fractional interest.
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4.7. Form of
Warrant. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 4, and
Warrants issued after such adjustment may state the same Warrant Price and the
same number of shares as is stated in the Warrants initially issued pursuant to
this Agreement. However, the Company may at any time in its sole
discretion make any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer and Exchange of
Warrants.
5.1. Registration of
Transfer. The Warrant Agent shall register the transfer, from
time to time, of any outstanding Warrant upon the Warrant Register, upon
surrender of such Warrant for transfer, properly endorsed with signatures
properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be
delivered by the Warrant Agent to the Company from time to time upon
request.
5.2. Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as
requested by the registered holder of the Warrants so surrendered, representing
an equal aggregate number of Warrants; provided, however, that in the event that
a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent
shall not cancel such Warrant and issue new Warrants in exchange therefor until
the Warrant Agent has received an opinion of counsel for the Company stating
that such transfer may be made and indicating whether the new Warrants must also
bear a restrictive legend.
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5.3. Fractional
Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which will result in the issuance of a
warrant certificate for a fraction of a warrant.
5.4. Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5. Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement, the
Warrants required to be issued pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such
purpose.
6. Redemption.
6.1. Redemption. Subject
to Section 6.4
hereof, not less than all of the outstanding Warrants may be redeemed, at the
option of the Company, at any time on or after January [__], 2012 and prior to
their expiration, at the office of the Warrant Agent, upon the notice referred
to in Section 6.2, at
the price of five cents ($0.05) per share of Common Stock underlying the
Warrants (“Redemption
Price”), provided, that, (a) the Company
shall provide notice of not less than twenty (20) days to the holder of such
Warrant; and (b) the closing sale price of the Common Stock as reported on the
national exchange on which the Common Stock is listed, or if the Common Stock is
not listed on a national securities exchange, the closing bid price on the OTCBB
for twenty (20) consecutive trading days, ending on the tenth (10th) day prior
to the date on which the Company gives such notice of redemption, has been at
least $[___]. At the date of redemption there must be an effective
registration statement to permit the sale of the underlying Common Stock under
the Act.
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6.2. Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
all of the Warrants, the Company shall fix a date for the
redemption. Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than twenty (20) days prior to the date
fixed for redemption to the registered holders of the Warrants to be redeemed at
their last addresses as they shall appear on the registration
books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
6.3. Exercise After Notice of
Redemption. The Warrants may be exercised, for cash at any
time after notice of redemption shall have been given by the Company pursuant to
Section 6.2
hereof until the close of business on the day preceding the date fixed for such
redemption. On and after the redemption date, the record holder of
the Warrants shall have no further rights except to receive, upon surrender of
the Warrants, the Redemption Price.
6.4. Outstanding Warrants
Only. The Company understands that the redemption rights
provided for by this Section 6 apply only
to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by
redemption. However, once such purchase rights are exercised, the
Company may redeem the Warrants issued upon such exercise provided that the
criteria for redemption are met. The provisions of this Section 6.4 may not
be modified, amended or deleted without the prior written consent of the Lead
Underwriter.
7. Other Provisions Relating to
Rights of Holders of Warrants.
7.1. No Rights as
Stockholder. A Warrant does not entitle the registered holder
thereof to any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.
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7.2. Lost, Stolen, Mutilated, or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated,
or destroyed, the Company and the Warrant Agent may on such terms as to
indemnity or otherwise as they may in their discretion impose (which shall, in
the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable
by anyone.
7.3. Reservation of Common
Stock. The Company shall at all times reserve and keep
available a number of its authorized but unissued shares of Common Stock that
will be sufficient to permit the exercise in full of all outstanding Warrants
issued pursuant to this Agreement.
7.4. Registration of Common
Stock. The Company acknowledges and agrees that the Warrants
and the shares of Common Stock underlying the Warrants have been publicly
registered under the Registration Statement and the Company will use its best
efforts to maintain the effectiveness of the Registration Statement until the
expiration of the Warrants. The provisions of this Section 7.4 may
not be modified, amended or deleted without the prior written consent of the
Lead Underwriter.
8. Concerning the Warrant Agent
and Other Matters.
8.1. Payment of
Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in
respect of the issuance or delivery of shares of Common Stock upon the exercise
of Warrants, but the Company shall not be obligated to pay any transfer taxes in
respect of the Warrants or such shares.
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8.2. Resignation, Consolidation,
or Merger of Warrant Agent.
8.2.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing
to the Company. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of thirty (30)
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice,
submit his Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent at the Company’s
cost. Any successor Warrant Agent, whether appointed by the Company
or by such court, shall be a corporation organized and existing under the laws
of the State of New York, in good standing and having its principal office in
the County of New York, City and State of New York, and authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by federal or state authority. After appointment, any
successor Warrant Agent shall be vested with all the authority, powers, rights,
immunities, duties, and obligations of its predecessor Warrant Agent with like
effect as if originally named as Warrant Agent hereunder, without any further
act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder; and
upon request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
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8.2.2. Notice of Successor Warrant
Agent. In the event a successor Warrant Agent shall be
appointed, the Company shall give notice thereof to the predecessor Warrant
Agent and the transfer agent for the Common Stock not later than the effective
date of any such appointment.
8.2.3. Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent
may be merged or with which it may be consolidated or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a party
shall be the successor Warrant Agent under this Agreement without any further
act.
8.3. Fees and Expenses of Warrant
Agent.
8.3.1. Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2. Further
Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
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8.4. Liability of Warrant
Agent.
8.4.1. Reliance on Company
Statement. Whenever in the performance of its duties under
this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable
that any factor matter be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the President or
Chairman of the Board of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this
Agreement.
8.4.2. Indemnity. The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent’s negligence, willful misconduct, or bad faith.
8.4.3. Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section
4 hereof or responsible for the manner, method, or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
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8.5. Acceptance of
Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and among other things, shall account promptly to
the Company with respect to Warrants exercised and concurrently account for, and
pay to the Company, all moneys received by the Warrant Agent for the purchase of
shares of Common Stock through the exercise of Warrants.
9. Miscellaneous
Provisions.
9.1. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
9.2. Notices. Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent) as set forth in the
introduction to this Agreement.
Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Olde
Monmouth Stock Transfer Co., Inc
000
Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxxxx, XX 00000
with a
copy in each case to:
[NAME]
[ADDRESS]
17
9.3. Applicable
law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of
the State of New York, without giving effect to conflicts of law principles that
would result in the application of the substantive laws of another
jurisdiction. The Company hereby agrees that any action, proceeding
or claim against it arising out of or relating in any way to this Agreement
shall be brought and enforced in the courts of the State of New York or the
United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may
be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 9.2
hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or
claim.
9.4. Persons Having Rights under
this Agreement. Nothing in this Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the parties hereto and the registered holders of the Warrants and, for the
purposes of Sections 6.1,
6.4, 7.4 and 9.2 hereof, the
Underwriters, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. The Underwriters shall be deemed to be third-party
beneficiaries of this Agreement with respect to Sections 6.1, 6.4, 7.4 and 9.2
hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and the Underwriters with respect to
the Sections
6.1, 6.4, 7.4 and 9.2 hereof) and their
successors and assigns and of the registered holders of the
Warrants.
18
9.5. Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the County of New York,
City and State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
9.7. Effect of
Headings. The Section headings herein are for convenience only
and are not part of this Warrant Agreement and shall not affect the
interpretation thereof.
9.8. Amendments. This
Agreement may not be altered, amended, or modified, nor may any provision hereof
be waived except in a written instrument signed by the Company, the Lead
Underwriter and the Warrant Agent.
[The
Remainder of This Page Left Intentionally Blank]
19
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
|
Attest:
|
ASIA
CORK, INC.
|
||
|
By:
|
|||
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Name:
|
|||
|
Title:
|
|||
|
Attest:
|
OLDE
MONMOUTH STOCK TRANSFER
CO.,
INC
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By:
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Name:
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|||
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Title:
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20
Exhibit
A
Form of
Public Warrant
21
Exhibit
B
Form of
Underwriters’ Warrant
22
