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”).
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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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3.3.1. 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.
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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.
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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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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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8.4.1. 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.
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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]
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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.
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Attest:
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ASIA
CORK, INC.
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By:
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Name:
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Title:
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Attest:
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OLDE
MONMOUTH STOCK TRANSFER
CO.,
INC
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By:
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Name:
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Title:
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Exhibit
A
Form of
Public Warrant
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Exhibit
B
Form of
Underwriters’ Warrant
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