Exhibit 4.4
WARRANT AGREEMENT
This Warrant Agreement (this "Agreement") made as of ____ __, 2007 between
China Resources Ltd., a Delaware corporation, with offices at Xxxx Xxxx China
Xxx Xxx Trading Co., Ltd., Room 921, Block A, Golden Central Tower, Jintian
Road, Futian District, Shenzhen, P.R. China. (the "Company"), and American Stock
Transfer & Trust Company, a New York corporation, with offices at 00 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public Offering")
of Units ("Units") and, in connection therewith, has determined to issue and
deliver up to (i) 4,600,000 Warrants ("Public Warrants") to investors in the
Public Offering, each of such Public Warrants evidencing the right of the holder
thereof to purchase one share of the Company's common stock, par value $.0001
per share ("Common Stock"), for $7.50, subject to adjustment as described herein
and (ii) 280,000 warrants to Maxim Group LLC ("Maxim" or the "Representative"),
as representative of the underwriters, or its designees (the "Representative's
Warrants"), with each of such Representative's Warrants evidencing the right of
the holder thereof to purchase one share of Common Stock for $7.50; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
a Registration Statement, No. 333-____ on Form S-1 ("Registration Statement"),
for the registration, under the Securities Act of 1933, as amended ("Act") of,
among other securities, the Public Warrants and the Common Stock issuable upon
exercise of the Public Warrants; and
WHEREAS, the Company is issuing 2,600,000 warrants, in a private placement
prior to the Public Offering, which Warrants (the "Private Warrants," together
with the Public Warrants and the Representative's Warrants shall be referred to
collectively as the "Warrants") will be identical to the Public 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 American
Stock Transfer & Trust Company, the Warrant Agent to act as agent for the
Company 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, and shall be in substantially the form of Exhibit A-1 hereto, the
provisions of which are incorporated herein 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.
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.
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 or 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.
2.4 Trading The Common Stock and Warrants comprising the Units
represented by a Unit certificate will begin separate trading five (5) business
days following the earlier to occur of the expiration of the underwriters'
over-allotment option in the Public Offering or its exercise in full, subject to
the Company having filed a Current Report on Form 8-K, which includes an audited
balance sheet reflecting the receipt by the Company of the gross proceeds of the
Public Offering including the proceeds received by the Company from the exercise
of the underwriters' over-allotment option, if any, and having issued a press
release announcing when such separate trading will begin.
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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 $7.50 per whole
share, subject to the adjustments provided in Section 4 hereof and in the last
sentence of this Section 3.1. The term "Warrant Price" as used in this Warrant
Agreement refers to the price per share at which Common Stock may be purchased
at the time a Warrant is exercised. The Company in its sole discretion may lower
the Warrant Price at any time prior to the Expiration Date for a period of not
less than ten business days; provided, that any such reduction shall be
identical among all of the Warrants.
3.2 Duration of Warrants. A Warrant may be exercised only during the
period commencing on the later of (i) the completion by the Company of a
Business Combination (as defined below) and (ii) ___, 2008, ("Exercise Period")
and terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
___, 2011, or (ii) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement (as applicable, "Expiration Date"). Except with
respect to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof,
whether or not under this Agreement, shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the duration of
the Warrants by delaying the Expiration Date; provided, however, that the
Company will provide notice to registered holders of the Warrants of such
extension not less than 20 days prior to the applicable Expiration Date;
provided, further, that any such extension shall be identical in duration among
all of the Public and Private Warrants, as applicable.
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
Borough of Manhattan, 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, by 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 after
the exercise of any Warrant and the clearance of the funds in payment of the
Warrant Price, the Company shall issue to the registered holder of such Warrant
a certificate or certificates for the number of full shares of Common Stock to
which he is entitled, 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 exercisable for the number of shares of Common Stock as to
which such Warrant shall not have been exercised. Notwithstanding the foregoing,
the Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant and shall have no obligation to settle any Warrant
exercise unless a registration statement under the Act with respect to the
Common Stock underlying such Warrant is effective, subject to the Company
satisfying its obligations under Section 7.4 to use its best efforts. In the
event a registration statement with respect to the Common Stock underlying a
Warrant is not effective under the Act, the holder of such Warrant shall not be
entitled to exercise such Warrant. Notwithstanding anything to the contrary
contained in this Warrant Agreement, under no circumstances will the Company be
required to net cash settle the exercise of the Warrants. Warrants may not be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful. As a result of the provisions of this
Section 3.3.2, any or all of the Warrants may expire unexercised.
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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.
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 Private Warrants. The Private Warrants may not be transferred
until the earlier of (i) the consummation of a Business Combination or (ii) the
Company's dissolution and liquidation. A "Business Combination" shall mean any
acquisition, through a merger, capital stock exchange, asset acquisition, stock
purchase or similar business combination, of an unidentified operating business
that has its principal operations in the People's Republic of China with
activities in the energy or natural resources sectors (as described more fully
in the Registration Statement).
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.
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.
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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 Section 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 Section 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 shares of Common Stock 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
Section 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.
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 and the
Representatives, 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 Section 4.1,
4.2, 4.3 or 4.4, then, in any such event, the Company shall give written notice
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, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant holder.
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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 the Company may deem appropriate and which 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.
4.8 Notice of Certain Transactions. In the event the Company shall
propose to (a) 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, (b) issue any
rights, options or warrants entitling the holders of Common Stock to subscribe
for shares of Common Stock or (c) make a tender offer or exchange offer with
respect to the Common Stock, the Company shall send to the Warrant holders a
notice of such proposed action or offer. Such notice shall be mailed to the
registered holders at their addresses as they appear in the Warrant Register,
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 Warrant Price
after giving effect to any adjustment pursuant to this Article 4 which would be
required as a result of such action. Such notice shall be given as promptly as
practicable after the Board of Directors of the Company (the "Board") has
determined to take any such action and (x) in the case of any action covered by
clause (a) or (b) above at least 10 days prior to the record date for
determining the holders of the Common Stock for purposes of such action or (y)
in the case of any other such action at least 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.
4.9 Other Events. If any event occurs as to which the foregoing
provisions of this Article 4 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board, fairly and
adequately protect the purchase rights of the registered holders of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board, to protect such purchase
rights as aforesaid.
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.
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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, in the
event 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 such transfer may be made and indicating whether the new Warrants must
also bear a restrictive legend.
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 after they become exercisable 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 $.01 per Warrant ("Redemption Price"), provided that the last sales price of
the Common Stock has been at least $14.25 per share, on each of twenty (20)
trading days within any thirty (30) trading day period ending on the third
business day prior to the date on which notice of redemption is given and
provided that the Warrants and shares of Common Stock underlying the Warrants
are covered by a registration statement that is effective under the Act. Because
redemption is at the option of the Company and because such redemption is
subject to conditions, any or all of the Warrants may expire unredeemed. The
provisions of this Section 6.1 may not be modified, amended or deleted without
the prior written consent of the Representatives.
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 30 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.
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6.3 Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the time and date fixed for 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 and only during the Exercise Period. 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 is met, including the opportunity of the Warrant holder to exercise
prior to redemption pursuant to Section 6.3. The provisions of this Section 6.4
may not be modified, amended or deleted without the prior written consent of the
Representatives.
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.
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 agrees that prior to
the commencement of the Exercise Period, it shall use its best efforts to
prepare and file with the Securities and Exchange Commission a post-effective
amendment to the Registration Statement, or a new registration statement, for
the registration, under the Act, of all shares of Common Stock issuable upon
exercise of the Warrants, and it shall use its best efforts to take such action
as is necessary to qualify for sale in those states in which the Warrants were
initially offered by the Company and the Common Stock issuable upon exercise of
the Warrants. In either case, the Company will use its best efforts to cause the
same to become effective on or prior to the commencement of the Exercise Period
and use its best efforts to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement; provided, however, that the Company shall not be obligated to
deliver securities and shall not have penalties for failure to deliver
securities, if a registration statement is not effective at the time of exercise
by the holder. The provisions of this Section 7.4 may not be modified, amended
or deleted without the prior written consent of the Representatives. In
addition, the Company agrees to use its best efforts to register such securities
under the blue sky laws of the states of residence of the exercising warrant
holders to the extent an exemption is not available.
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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.
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 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 Borough of
Manhattan, 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.
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 Representatives and the predecessor Warrant Agent and the
transfer agent for the Common Stock not later than the effective date of any
such appointment.
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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 on the part of the Company or the
Warrant Agent.
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.
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 fact or 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 follows:
China Resources Ltd.
Xxxx Xxxx China Xxx Xxx Trading Co., Ltd.
Xxxx 000, Xxxxx X, Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxx
Futian District, Shenzhen, P.R. China
Attn: Xxxx Xxxx, President and Chief Executive Officer
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 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:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
Xxxxx & Xxx Xxxxxx
Three Park Avenue, 16th floor
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx XxXxxx, Esq.
and
Ellenoff Xxxxxxxx & Schole LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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and
Maxim Group LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Managing Director
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 conflict of laws. 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 2.4, 3.3.5, 6.1, 6.4, 7.4, 9.2
and 9.8 hereof, the Representatives, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. The Representatives shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 2.4, 3.3.5
6.1, 6.4, 7.4, 9.2 and 9.8 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 Representatives with
respect to the Sections 2.4, 3.3.5, 6.1, 6.4, 7.4, 9.2 and 9.8 hereof) and their
successors and assigns and of the registered holders of the Warrants. This
Section 9.4 shall not be modified or amended without the prior written consent
of the Representatives.
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 Borough of Manhattan, 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
original or facsimile 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.
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9.8 Amendments. This Agreement may be amended by the parties hereto
without the consent of any registered holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with respect to
matters or questions arising under this Agreement as the parties may deem
necessary or desirable and that the parties deem shall not adversely affect the
interest of the registered holders. All other modifications or amendments,
including any amendment to increase the Warrant Price or shorten the Exercise
Period, shall require the written consent of each of the Representatives and the
registered holders of a majority of the then outstanding Warrants.
Notwithstanding the foregoing, the Company may lower the Warrant Price or extend
the duration of the Exercise Period in accordance with Sections 3.1 and 3.2,
respectively, without such consent.
9.9 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
(Remainder of the document intentionally left blank. Signature page to follow)
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Attest: CHINA RESOURCES LTD.
________________________________ By: _____________________________________
Name: Xxxx Xxxx
Title: President and Chief Executive Officer
Attest: AMERICAN STOCK TRANSFER & TRUST COMPANY
________________________________ By: _____________________________________
Name: _____________________________________
Title: _____________________________________
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