WARRANT
EXHIBIT
4.7
WARRANT
NEITHER
THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF
THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES
ACT”).
THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT
BE
OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
THE
SECURITIES ACT OR UNLESS SUCH OFFER, SALE OR TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
SERIES
F
WARRANT TO PURCHASE
SHARES
OF
COMMON STOCK
OF
Expires
October 2, 2012
|
No.:
W- F -
|
Number
of Shares: _________
|
|
Date
of Issuance: October 3, 2007
|
VICTORY
DIVIDE MINING COMPANY,
a
Nevada corporation (the “Company”),
hereby certifies that ______________________,
its permissible
transferees, designees, successors and assigns (collectively, the “Holder”),
for
value received, is entitled to purchase from the Company at any time commencing
on the Effective Date (as hereinafter defined), and terminating on the fifth
anniversary of the Date of Issuance of this Warrant (the “Termination
Date”)
_________________
shares
(each, a “Share”
and
collectively the “Shares”)
of the
Company’s common stock, $.001 par value per Share (the “Common
Stock”),
at an
exercise price $3.01 per Share (the “Exercise
Price”).
The
number of Shares purchasable hereunder and the Exercise Price are subject
to
adjustment as provided in Section 4 hereof.
|
1.
|
Exercise
of Warrant.
|
The
purchase right represented by this Common Stock Warrant (this "Warrant")
is
exercisable, in whole or in part, at any time and from time to time from
and
after the Effective Date through and including the Termination
Date.
Upon
presentation and surrender of this Warrant, accompanied by a completed Election
to Purchase in the form attached hereto as Exhibit
A
(the
“Election
to Purchase”)
duly
executed, at the principal office of the Company (or such other office or
agency
of the Company as the Company may designate to the Holder) together with
a check
payable to, or wire transfer to, the Company in the amount of the Exercise
Price
multiplied by the number of Shares being purchased, the Company or the Company’s
transfer agent, as the case may be, shall within three (3) business days
deliver
to the Holder hereof certificates of fully paid and non-assessable Common
Stock
which in the aggregate represent the number of Shares being purchased. The
certificates so delivered shall be in such denominations as may be requested
by
the Holder and shall be registered in the name of the Holder or such other
name
as shall be designated by the Holder. All or less than all of the purchase
rights represented by this Warrant may be exercised and, in case of the exercise
of less than all, the Company, upon surrender hereof, will at the Company’s
expense deliver to the Holder a new warrant entitling said holder to purchase
the number of Shares represented by this Warrant which have not been exercised.
This Warrant may only be exercised to the extent the Company has a sufficient
number of Shares of Common Stock available for issuance at the time of any
exercise.
|
2.
|
Warrant.
|
a. Exchange,
Transfer and Replacement.
At any
time prior to the exercise hereof, this Warrant may be exchanged upon
presentation and surrender to the Company, alone or with other warrants of
like
tenor of different denominations registered in the name of the same Holder,
for
another warrant or warrants of like tenor in the name of such Holder exercisable
for the aggregate number of Shares as the warrant or warrants
surrendered.
b. Replacement
of Warrant.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and substance to the Company, or, in the case of any
such
mutilation, upon surrender and cancellation of this Warrant, the Company,
at its
expense, will execute and deliver in lieu thereof, a new Warrant of like
tenor.
c. Cancellation;
Payment of Expenses.
Upon
the surrender of this Warrant in connection with any transfer, exchange or
replacement as provided in this Section 2, this Warrant shall be promptly
canceled by the Company. The Holder shall pay all taxes and all other expenses
(including legal expenses, if any, incurred by the Holder or transferees)
and
charges payable in connection with the preparation, execution and delivery
of
Warrants pursuant to this Section 2.
d. Warrant
Register.
The
Company shall maintain, at its principal executive offices (or at the offices
of
the transfer agent for the Warrant or such other office or agency of the
Company
as it may designate by notice to the holder hereof), a register for this
Warrant
(the “Warrant Register”), in which the Company shall record the name and address
of the person in whose name this Warrant has been issued, as well as the
name
and address of each transferee and each prior owner of this
Warrant.
|
3.
|
Rights
and Obligations of Holders of this Warrant.
The Holder of this Warrant shall not, by virtue hereof, be entitled
to any
rights of a stockholder in the Company, either at law or in equity;
provided,
however,
that in the event any certificate representing shares of Common
Stock or
other securities is issued to the holder hereof upon exercise of
this
Warrant, such holder shall, for all purposes, be deemed to have
become the
holder of record of such Common Stock on the date on which this
Warrant,
together with a duly executed Election to Purchase, was surrendered
and
payment of the aggregate Exercise Price was made, irrespective
of the date
of delivery of such Common Stock
certificate.
|
|
4.
|
Adjustments.
|
a. Stock
Dividends, Reclassifications, Recapitalizations, Etc.
In the
event that after the Effective Date the Company: (i) pays a dividend in
Common Stock or makes a distribution in Common Stock, (ii) subdivides its
outstanding Common Stock into a greater number of shares, (iii) combines
its outstanding Common Stock into a smaller number of shares or
(iv) increases or decreases the number of shares of Common Stock
outstanding by reclassification of its Common Stock (including a
recapitalization in connection with a consolidation or merger in which the
Company is the continuing corporation), then (1) the Exercise Price on the
record date of such division or distribution or the effective date of such
action shall be adjusted by multiplying such Exercise Price by a fraction,
the
numerator of which is the number of shares of Common Stock outstanding
immediately before such event and the denominator of which is the number
of
shares of Common Stock outstanding immediately after such event, and
(2) the number of shares of Common Stock for which this Warrant may be
exercised immediately before such event shall be adjusted by multiplying
such
number by a fraction, the numerator of which is the Exercise Price immediately
before such event and the denominator of which is the Exercise Price immediately
after such event.
b. Cash
Dividends and Other Distributions.
In the
event that at any time or from time to time the Company shall distribute
to all
holders of Common Stock (i) any dividend or other distribution of cash,
evidences of its indebtedness, shares of its capital stock or any other
properties or securities or (ii) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than in each case,
(w) the issuance of any rights under a shareholder rights plan,
(x) any dividend or distribution described in Section 4(a), (y) any
rights, options, warrants or securities described in Section 4(c) and (z)
any
cash dividends or other cash distributions from current or retained earnings),
then the number of shares of Common Stock issuable upon the exercise of this
Warrant shall be increased to a number determined by multiplying the number
of
shares of Common Stock issuable upon the exercise of this Warrant immediately
prior to the record date for any such dividend or distribution by a fraction,
the numerator of which shall be such Current Market Value (as hereinafter
defined) per share of Common Stock on the record date for such dividend or
distribution, and the denominator of which shall be such Current Market Value
per share of Common Stock on the record date for such dividend or distribution
less the sum of (x) the amount of cash, if any, distributed per share of
Common
Stock and (y) the fair value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be evidenced by a board
resolution, a copy of which will be sent to the Holders upon request) of
the
portion, if any, of the distribution applicable to one share of Common Stock
consisting of evidences of indebtedness, shares of stock, securities, other
property, warrants, options or subscription or purchase rights; and the Exercise
Price shall be adjusted to a number determined by dividing the Exercise Price
immediately prior to such record date by the above fraction. Such adjustments
shall be made whenever any distribution is made and shall become effective
as of
the date of distribution, retroactive to the record date for any such
distribution. No adjustment shall be made pursuant to this Section 4(b) which
shall have the effect of decreasing the number of shares of Common Stock
issuable upon exercise of this Warrant or increasing the Exercise Price.
c. Combination;
Liquidation.
(i) In the event of a Combination (as defined below), each Holder shall
have the right to receive upon exercise of the Warrant the kind and amount
of
shares of capital stock or other securities or property which such Holder
would
have been entitled to receive upon or as a result of such Combination had
such
Warrant been exercised immediately prior to such event (subject to further
adjustment in accordance with the terms hereof). Unless paragraph (ii) is
applicable to a Combination, the Company shall provide that the surviving
or
acquiring Person (the “Successor Company”) in such Combination will assume by
written instrument the obligations under this Section 4 and the obligations
to deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to acquire.
“Combination”
means
an event in which the Company consolidates with, mergers with or into, or
sells
all or substantially all of its assets to another Person, where “Person” means
any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity;
(ii) In the event of (x) a Combination where consideration to the holders of
Common Stock in exchange for their shares is payable solely in cash or (y)
the
dissolution, liquidation or winding-up of the Company, the Holders shall
be
entitled to receive, upon surrender of their Warrant, distributions on an
equal
basis with the holders of Common Stock or other securities issuable upon
exercise of the Warrant, as if the Warrant had been exercised immediately
prior
to such event, less the Exercise Price. In case of any Combination described
in
this Section 4, the surviving or acquiring Person and, in the event of any
dissolution, liquidation or winding-up of the Company, the Company, shall
deposit promptly with an agent or trustee for the benefit of the Holders
of the
funds, if any, necessary to pay to the Holders the amounts to which they
are
entitled as described above. After such funds and the surrendered Warrant
are
received, the Company is required to deliver a check in such amount as is
appropriate (or, in the case or consideration other than cash, such other
consideration as is appropriate) to such Person or Persons as it may be directed
in writing by the Holders surrendering such Warrant.
d. Notice
of Certain Transactions.
In the
event that the Company shall propose (a) to pay any dividend payable in
securities of any class to the holders of its Common Stock or to make any
other
non-cash dividend or distribution to the holders of its Common Stock,
(b) to offer the holders of its Common Stock rights to subscribe for or to
purchase any securities convertible into shares of Common Stock or shares
of
stock of any class or any other securities, rights or options, (c) to
effect any capital reorganization, reclassification, consolidation or merger
affecting the class of Common Stock, as a whole, or (d) to effect the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
the Company shall, within the time limits specified below, send to each Holder
a
notice of such proposed action or offer. Such notice shall be mailed to the
Holders at their addresses as they appear in the Warrant Register (as defined
in
Section 2(d)),
which
shall specify the record date for the purposes of such dividend, distribution
or
rights, or the date such issuance or event is to take place and the date
of
participation therein by the holders of Common Stock, if any such date is
to be
fixed, and shall briefly indicate the effect of such action on the Common
Stock
and on the number and kind of any other shares of stock and on other property,
if any, and the number of shares of Common Stock and other property, if any,
issuable upon exercise of each Warrant and the Exercise Price after giving
effect to any adjustment pursuant to Section 4 which will be required as a
result of such action. Such notice shall be given as promptly as possible
and
(x) in the case of any action covered by clause (a) or (b) above, at least
ten
(10) days prior to the record date for determining holders of the Common
Stock
for purposes of such action or (y) in the case of any other such action,
at
least twenty (20) days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of Common Stock, whichever
shall be the earlier.
e. Current
Market Value.“Current
Market Value”
per
share of Common Stock or any other security at any date means (i) if the
security is not registered under the Securities Exchange Act of 1934 and/or
traded on a national securities exchange, quotation system or bulletin board,
as
amended (the “Exchange
Act”),
(a)
the value of the security, determined in good faith by the Board of Directors
of
the Company and certified in a board resolution, based on the most recently
completed arm’s-length transaction between the Company and a Person other than
an affiliate of the Company or between any two such Persons and the closing
of
which occurs on such date or shall have occurred within the six-month period
preceding such date, or (b) if no such transaction shall have occurred within
the six-month period, the value of the security as determined by an independent
financial expert or an agreed upon financial valuation model or (ii) if the
security is registered under the Exchange Act and/or traded on a national
securities exchange, quotation system or bulletin board, the average of the
daily closing bid prices (or the equivalent in an over-the-counter market)
for
each day on which the Common Stock is traded for any period on the principal
securities exchange or other securities market on which the common Stock
is
being traded (each, a “Trading
Day”)
during
the period commencing thirty (30) days before such date and ending on the
date
one day prior to such date.
|
5.
|
Fractional
Shares.
In lieu of issuance of a fractional share upon any exercise hereunder,
the
Company will pay the cash value of that fractional share, calculated
on
the basis of the Exercise Price.
|
|
6.
|
Legends.
Prior to issuance of the shares of Common Stock underlying this
Warrant,
all such certificates representing such shares shall bear a restrictive
legend to the effect that the Shares represented by such certificate
have
not been registered under the 1933 Act, and that the Shares may
not be
sold or transferred in the absence of such registration or an exemption
therefrom, such legend to be substantially in the form of the bold-face
language appearing at the top of Page 1 of this Warrant.
|
|
7.
|
Disposition
of Warrants or Shares.
The Holder of this Warrant, each transferee hereof and any holder
and
transferee of any Shares, by his or its acceptance thereof, agrees
that no
public distribution of Warrants or Shares will be made in violation
of the
provisions of the Securities Act of 1933, as amended. Furthermore,
it
shall be a condition to the transfer of this Warrant that any transferee
thereof deliver to the Company his or its written agreement to
accept and
be bound by all of the terms and conditions contained in this Warrant.
All
Warrants issued on transfers or exchanges shall be dated the Date
of
Issuance of this Warrant and shall be identical with this Warrant
except
as to the number of shares of Warrant Stock issuable pursuant thereto.
“Warrant
Stock”
means Common Stock issuable upon exercise of any Warrant or Warrants
or
otherwise issuable pursuant to any Warrant or
Warrants.
|
|
8.
|
Merger
or Consolidation.
The Company will not merge or consolidate with or into any other
corporation, or sell or otherwise transfer its property, assets
and
business substantially as an entirety to another corporation, unless
the
corporation resulting from such merger or consolidation (if not
the
Company), or such transferee corporation, as the case may be, shall
assume
the performance and observance of this Warrant to be performed
and
observed by the Company.
|
|
9.
|
Notices.
Any and all notices or other communications or deliveries required
or
permitted to be provided hereunder shall be in writing and shall
be deemed
given and effective on the earlier of (i) the date of transmission,
if
such notice or communication is delivered via facsimile at the
facsimile
telephone number specified for notice prior to 5:00 p.m., eastern
time, on
a Trading Day, (ii) the Trading Day after the date of transmission,
if
such notice or communication is delivered via facsimile at the
facsimile
telephone number specified for notice later than 5:00 p.m., eastern
time,
on any date and earlier than 11:59 p.m., eastern time, on such
date, (iii)
the Trading Day following the date of mailing, if sent by overnight
delivery by a nationally recognized overnight courier service or
(iv)
actual receipt by the party to whom such notice is required to
be given.
The addresses for such communications shall be with respect to
the Holder
of this Warrant or of Warrant Stock issued pursuant hereto, addressed
to
such Holder at its last known address or facsimile number appearing
on the
books of the Issuer maintained for such purposes, or with respect
to the
Issuer, addressed to::
|
If
to the Company:
c/o
Heilongjiang Yanglin Soybean Group
Xx.
00
Xxxxxxx Xxxxxx
Jixian
Town Heilongjiang
People’s
Republic of China 155900
Fax:
00-000-000-0000
Email: xxxxxxxx0@000.xxx
with
a
copy (which copy shall not constitute notice to the Issuer) to:
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
New
York,
New York 10022
Attention:
Xxxxxx Xxxxxx
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
Any
party
hereto may from time to time change its address for notices by giving at
least
ten (10) days written notice of such changed address to the other party hereto.
Notwithstanding the time of effectiveness of notices set forth in this Section,
an Election to Purchase shall not be deemed effectively given until it has
been
duly completed and submitted to the Company together with this original Warrant
and payment of the Exercise Price in a manner set forth in this
Section.
|
10.
|
|
11.
|
Successors
and Assigns.
This Warrant shall be binding upon and shall inure to the benefit
of the
parties hereto and their respective successors and
assigns.
|
|
12.
|
Headings.
The headings of various sections of this Warrant have been inserted
for
reference only and shall not affect the meaning or construction
of any of
the provisions hereof.
|
|
13.
|
Severability.
If any provision of this Warrant is held to be unenforceable under
applicable law, such provision shall be excluded from this Warrant,
and
the balance hereof shall be interpreted as if such provision were
so
excluded.
|
|
14.
|
Modification
and Waiver.
This Warrant and any provision hereof may be amended, waived, discharged
or terminated only by an instrument in writing signed by the Company
and
the Holder.
|
|
15.
|
Specific
Enforcement.
The Company and the Holder acknowledge and agree that irreparable
damage
would occur in the event that any of the provisions of this Warrant
were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to
an injunction or injunctions to prevent or cure breaches of the
provisions
of this Warrant and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which either
of them
may be entitled by law or equity.
|
|
16.
|
Assignment.
Subject to prior written approval by the Company, this Warrant
may be
transferred or assigned, in whole or in part, at any time and from
time to
time by the then Holder by submitting this Warrant to the Company
together
with a duly executed Assignment in substantially the form and substance
of
the Form of Assignment which accompanies this Warrant, as Exhibit B
hereto, and, upon the Company’s receipt hereof, and in any event, within
three (3) business days thereafter, the Company shall issue a warrant
to
the Holder to evidence that portion of this Warrant, if any as
shall not
have been so transferred or assigned.
|
(signature
page immediately follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed,
manually or by facsimile, by one of its officers thereunto duly
authorized.
|
Date:
October 3, 2007
|
By:
/s/
Xxxxxx Xxx__________
Name: Xxxxxx
Xxx
Title: Chief
Executive Officer
|
