WARRANT PURCHASE AGREEMENT
WARRANT
PURCHASE AGREEMENT (this “Agreement”) made as of this ___________day of _______,
2011 among China VantagePoint Acquisition Company, a Cayman Islands limited life
exempted company (the “Company”), and each of (i) Xxx Xx, Ye (Sophie) Tao and
Xxxxxx Xxx (collectively, the “Insiders”), (ii) EarlyBirdCapital, Inc. (“EBC”)
and (iii) Xxxxx X. Xxxx Grandchildren’s Trust, Xxxx X. Xxxxxx and Xxxxxxx
Capital Management LLC (collectively, the “Third Party Purchasers” and together
with the Insiders and EBC, the “Purchasers”).
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a
registration statement on Form S-1, as amended (File No. 333-170006) (the
“Registration Statement”), in connection with the Company’s initial public
offering (the “IPO”) of 2,500,000 units (the “Units”), each unit consisting of
one subunit and one-half of a warrant, with each subunit consisting of one
ordinary share of the Company, $0.001 par value (the “Ordinary Shares”), and
one-half of a warrant , each whole Warrant to purchase one Ordinary Share (the
“Warrants”); and
WHEREAS,
simultaneously with the consummation of the IPO, the Company desires to sell in
a private placement (the “Placement”) an aggregate of 2,642,857 warrants (the
“Placement Warrants”) to the Purchasers pursuant to the terms and conditions
hereof and as set forth in the Registration Statement; and
WHEREAS,
each Purchaser desires to acquire the number of Placement Warrants set forth
opposite its name on Schedule A hereto;
and
WHEREAS,
except as provided herein, the Placement Warrants shall be governed by the
Warrant Agreement filed as an exhibit to the Registration Statement;
and
WHEREAS,
the Purchasers are entitled to registration rights with respect to the Placement
Warrants and the Ordinary Shares underlying the Placement Warrants (the
“Underlying Shares”) on the terms set forth in this Agreement;
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase of Placement
Warrants. The Purchasers hereby agree, directly or through
their nominees, to purchase an aggregate of 2,642,857 Placement Warrants at a
purchase price of $0.35 per Placement Warrant, or an aggregate of $925,000 (the
“Purchase Price”). Such purchases shall be in the names and amounts set forth on
Schedule A
hereto.
2. Closing. The
closing of the purchase and sale of the Placement Warrants (the “Closing”) will
take place simultaneously with the closing date of the IPO (the “IPO Closing
Date”). The Purchasers shall pay the Purchase Price by wire transfer of funds to
Loeb & Loeb, LLP no later than twenty-four (24) hours prior to the effective
date of the Registration Statement. Certificates evidencing the
Placement Warrants will be delivered to the Purchasers on the IPO Closing
Date.
3. Terms of Placement
Warrants.
3.1 Insider
Warrants. The Placement Warrants being purchased by the
Insiders shall be identical to the Warrants except that they are (i) being
issued in a private placement and will not be registered under the Securities
Act of 1933, as amended (the “Securities Act”) and (ii) non-redeemable by the
Company and may be exercised on a “cashless basis” by the holder thereof, in
each case provided such Placement Warrants being purchased by the Insiders are
held by the initial purchasers or their affiliates.
3.2 EBC Warrants and Third Party
Warrants. The Placement Warrants being purchased by EBC and the Third
Party Purchasers shall be identical to the Warrants except that (i) they are
being issued in a private placement and will not be registered under the
Securities Act, (ii) the Company may not call the EBC Warrants and the Third
Party Warrants for redemption without EBC’s consent unless the Company is also
simultaneously calling the Warrants, and (iii) provided the Placement Warrants
being purchased by EBC and the Third Party Purchasers are held by the initial
purchasers or their affiliates, the Company may only call the EBC Warrants and
the Third Party Warrants for redemption on a cash basis with the consent of EBC,
but the Company may call the Warrants for redemption on a cash basis and
simultaneously call the EBC Warrants and Third Party Warrants for redemption on
a cashless basis without EBC’s consent. Furthermore, in no event will the
EBC Warrants be exercisable more than five years from the effective date of the Registration Statement.
3.3 Restriction on
Transfer. The Purchasers hereby agree that the Placement
Warrants will not be sold or transferred by the Purchasers (except to (i) the
Insiders, EBC, or the Company’s or EBC’s officer’s, directors and/or employees,
(ii) an entity’s members upon its liquidation, (iii) by bona fide gift to a
member of a Purchaser’s immediate family or to a trust, the beneficiary of which
is a Purchaser or a member of a Purchaser’s immediate family for estate planning
purposes, (iv) by virtue of the laws of descent and distribution upon death, (v)
pursuant to a qualified domestic relations order) until after the Company has
completed an initial business combination (as described in the Registration
Statement). Additionally, the 450,000 EBC Warrants (and the 450,000 underlying
shares) are subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of the
FINRA Manual. Furthermore, the EBC Warrants may not be sold, transferred,
assigned, pledged or hypothecated for a one-year period (including the foregoing
180-day period) f ollowing the effective date of the Registration Statement
except to any selected dealer participating in the offering and the bona fide
officers or partners of EBC and any such participating selected
dealer.
4. Representations and
Warranties of the Purchasers. Each Purchaser hereby represents and
warrants to the Company that:
4.1 The
execution and delivery by the Purchaser of this Agreement and the fulfillment of
and compliance with the respective terms hereof by the Purchaser does not and
shall not as of the Closing conflict with or result in a
breach of the terms, conditions or provisions of any other agreement,
instrument, order, judgment or decree to which the Purchaser is subject
to.
4.2 The
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
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4.3 The
Placement Warrants are being acquired for the Purchaser’s own account, only for
investment purposes and not with a view to, or for resale in connection with,
any distribution or public offering thereof within the meaning of the Securities
Act.
4.4 The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
4.5 The
Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Placement Warrants or the fairness or suitability of the
investment in the Placement Warrants nor have such authorities passed upon or
endorsed the merits of the offering of the Placement Warrants.
5. Registration Rights.
The Purchasers shall have registration rights pursuant to that certain
Registration Rights Agreement, dated as of the date hereof, by and among the
Company and the Purchasers listed on the signature page thereto substantially in
the form filed as an exhibit to the Registration Statement.
6. Waiver of Claims Against
Trust Account. Each Purchaser of Placement Warrants hereby waives any and
all right, title, interest or claim of any kind in or to any distributions from
the trust account maintained by the Company’s transfer agent, acting as trustee
(the “Trust Account”) with respect to any Ordinary Shares acquired by such
Purchaser in connection with the exercise of the Placement Warrants purchased
pursuant to this Agreement ("Claim") and hereby waives any Claim the undersigned
may have in the future as a result of, or arising out of, any contracts or
agreements with the Company and will not seek recourse against the Trust Account
for any reason whatsoever.
7. Legends;
Denominations. The Placement Warrants, and the Ordinary Shares
underlying such Placement Warrants, will bear the following legend and
appropriate "stop transfer" instructions:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
8. Waiver and
Indemnification. Each Purchaser hereby waives any and all rights to
assert any present or future claims, including any right of rescission, against
the Company with respect to their purchase of the Placement Warrants, and each
Purchaser agrees to indemnify and hold the Company harmless from all losses,
damages or expenses that relate to claims or proceedings brought against the
Company by such Purchaser of the Placement Warrants. Additionally,
each Insider and Third Party Purchaser hereby waives any and all rights to
assert any present or future claims, including any right of rescission, against
EBC with respect to their purchase of the Placement Warrants, and each Insider
and Third Party Purchaser agrees to indemnify and hold EBC harmless from all
losses, damages or expenses that relate to claims or proceedings brought against
EBC by such Insider or Third Party Purchaser of the Placement
Warrants.
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9. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. This
Agreement or any counterpart may be executed via facsimile transmission, and any
such executed facsimile copy shall be treated as an original.
10.
Governing
Law. This Agreement shall for all purposes be deemed to be made under and
shall be construed in accordance with the laws of the State of New York. Each of
the parties hereby agrees that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be resolved
through final and binding arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitration shall be brought before the AAA
International Center for Dispute Resolution’s offices in New York City, New
York, will be conducted in English and will be decided by a panel of three
arbitrators selected from the AAA Commercial Disputes Panel and that the
arbitrator panel’s decision shall be final and enforceable by any court having
jurisdiction over the party from whom enforcement is sought. Each of
the parties hereby waives any objection to such exclusive jurisdiction and that
such arbitration represents an inconvenient forum.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____day
of ______________, 2011.
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By:
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Name:
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Title:
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PURCHASERS:
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EARLYBIRDCAPITAL,
INC.
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By:
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Name:
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Title:
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INSIDERS:
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Xxx
Xx
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Ye
(Sophie) Tao
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Xxxxxx
Xxx
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[Signature
Page to
Warrant
Purchase
Agreement]
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THIRD
PARTY PURCHASERS:
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XXXXX
X. XXXX GRANDCHILREN’S
TRUST
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By:
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Name:
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Title:
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[Signature
Page to
Warrant
Purchase
Agreement]
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THIRD
PARTY PURCHASERS:
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Xxxx
X. Xxxxxx
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[Signature
Page to
Warrant
Purchase
Agreement]
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THIRD
PARTY PURCHASERS:
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XXXXXXX
CAPITAL MANAGEMENT LLC
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By:
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Name:
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Title:
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[Signature
Page to
Warrant
Purchase
Agreement]
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SCHEDULE
A
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Purchaser
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Placement Warrants
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Purchase Price
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EarlyBirdCapital,
Inc.
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450,000 | $ | 157,500.00 | |||||
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Xxxxx
X. Xxxx Grandchildren’s Trust
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285,714 | $ | 99,999.90 | |||||
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Xxxx
X. Xxxxxx
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57,142 | $ | 19,999.70 | |||||
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Xxxxxxx
Capital Management LLC
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350,000 | $ | 122,500.00 | |||||
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Xxx
Xx
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500,000 | $ | 175,000.00 | |||||
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Ye
(Sophie) Tao
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500,000 | $ | 175,000.00 | |||||
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Xxxxxx
Xxx
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500,000 | $ | 175,000.00 | |||||
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Total:
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2,642,856 | $ | 924,999.60 | |||||
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