Right to Purchase [______] shares of Common Stock of American Dairy, Inc. (subject to adjustment as provided herein) AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT
AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO AMERICAN DAIRY, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
Right
to
Purchase [______] shares of Common Stock
of
American Dairy, Inc.
(subject
to adjustment as provided herein)
AMENDED
AND RESTATED
|
No.
|
Issue
Date: November __, 2008
|
AMERICAN
DAIRY, INC., a corporation organized under the laws of the State of Utah
(the
"Company"),
hereby certifies that [_______________], whose address is
_________________________________________, or its assigns (the "Holder"),
is
entitled, subject to the terms set forth below, to purchase from the Company
at
any time after October 3, 2006 (the "Issue
Date"),
until
5:00 p.m., E.S.T on October 3, 2012 (the "Expiration Date"), up to [_____]
fully
paid and non-assessable shares of common stock of the Company, par value
$0.001
per share (the "Common
Stock"),
at a
per share price of $14.50. The aforedescribed price per share, as adjusted
from
time to time as herein provided, is referred to herein as the "Exercise
Price."
The
number and character of such shares of Common Stock and the Exercise Price
are
subject to adjustment as provided herein. The Company may reduce the Exercise
Price without the consent of the Holder. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in that certain
Subscription Agreement (the "Subscription
Agreement"),
dated
of October 2, 2006, entered into by the Company and the original holders
of the
Warrants.
This
Warrant amends and restates it is entirety that certain Warrant (the
“Existing
Warrant”)
between the parties dated October 2, 2006 (the “Closing
Date”),
it
being the intention of the parties that all of the terms of the Existing
Warrant, as amended hereby, are restated in and are replaced by the terms
of
this Warrant, but this Warrant shall not be deemed or construed to have been
issued in payment, satisfaction, cancellation or novation of the Existing
Warrant.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term
"Company"
shall
include American Dairy, Inc. and any corporation which shall succeed or assume
the obligations of American Dairy, Inc. hereunder.
(b) The
term
"Common
Stock"
includes (i) the Company's Common Stock, $0.001 par value per share, as
authorized on the date of the Subscription Agreement, and (ii) any other
securities into which or for which any of the securities described in (i)
may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) The
term
"Other
Securities"
refers
to any stock (other than Common Stock) and other securities of the Company
or
any other person (corporate or otherwise) which the holder of the Warrant
at any
time shall be entitled to receive, or shall have received, on the exercise
of
the Warrant, in lieu of or in addition to Common Stock, or which at any time
shall be issuable or shall have been issued in exchange for or in replacement
of
Common Stock or Other Securities pursuant to Section 2 or
otherwise.
1. Exercise
of Warrant.
1.1 Number
of Shares Issuable upon Exercise.
From
and after the Issue Date through and including the Expiration Date, the Holder
hereof shall be entitled to receive, upon exercise of this Warrant in whole
in
accordance with the terms of Sub-section 1.2 or upon exercise of this Warrant
in
part in accordance with Sub-section 1.3, the number of shares of Common Stock
of
the Company set forth in the first paragraph of this Warrant, subject to
adjustment pursuant to Section 2. No fractional shares will be issued;
therefore, in the event that the number of shares of Common Stock due hereunder
is not a whole number, the Company shall round up to the nearest whole share
the
number of such shares due.
1.2 Full
Exercise.
This
Warrant may be exercised in full by the Holder hereof by delivery of an original
or facsimile copy of the form of subscription attached as Exhibit
A hereto
(the "Subscription
Form")
duly
executed by such Holder and surrender of this Warrant to the Company at its
principal office or at the office of its Warrant Agent (as provided
hereinafter), accompanied by (subject to Sub-section 1.7) payment, in cash,
wire
transfer or by certified or official bank check payable to the order of the
Company, in the amount obtained by multiplying the number of shares of Common
Stock for which this Warrant is then exercisable by the Exercise Price then
in
effect.
1.3 Partial
Exercise.
This
Warrant may be exercised in part (but not for a fractional share) by surrender
of this Warrant in the manner and at the place provided in Sub-section 1.2
except that the amount payable by the Holder on such partial exercise shall
be
the amount obtained by multiplying (a) the number of whole shares of Common
Stock designated by the Holder in the Subscription Form by (b) the Exercise
Price then in effect. On any such partial exercise, the Company, at its expense,
will forthwith issue and deliver to or upon the order of the Holder hereof
a new
Warrant of like tenor, in the name of the Holder hereof or as such Holder
(upon
payment by such Holder of any applicable transfer taxes) may request, the
whole
number of shares of Common Stock remaining for which such Warrant may still
be
exercised.
1.4 Company
Acknowledgment.
The
Company will, at the time of the exercise of the Warrant, upon the request
of
the Holder hereof, acknowledge in writing its continuing obligation to afford
to
such Holder any rights to which such Holder shall continue to be entitled
after
such exercise in accordance with the provisions of this Warrant. If the Holder
shall fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such Holder any such
rights.
2
1.5 Trustee
for Warrant Holders.
In the
event that a bank or trust company shall have been appointed as trustee for
the
Holder of the Warrants pursuant to Sub-section 2.2, such bank or trust company
shall have all the powers and duties of a warrant agent (as hereinafter
described) and shall accept, in its own name for the account of the Company
or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
1.6 Delivery
of Stock Certificates, etc. on Exercise.
The
Company agrees that the shares of Common Stock purchased upon exercise of
this
Warrant shall be deemed to be issued to the Holder hereof as the record owner
of
such shares as of the close of business on the date on which this Warrant
shall
have been surrendered and payment made for such shares as provided for in
Sub-sections 1.2, 1.3 or 1.7. As soon as practicable after the exercise of
this
Warrant in full or in part, the Company, at its expense (including the payment
by it of any applicable issue taxes), will cause to be issued in the name
of and
delivered to the Holder hereof, or as such Holder (upon payment by such Holder
of any applicable transfer taxes) may direct in compliance with applicable
securities laws, a certificate or certificates for the number of duly and
validly issued, fully paid and non-assessable shares of Common Stock (or
Other
Securities or property) to which such Holder shall be entitled on such
exercise.
1.7 Cashless
Exercise.
(a) Notwithstanding
anything to the contrary in this Section 1, in lieu of making the payments
specified in accordance with Sub-sections 1.2
and
1.3 of this Warrant, the Holder may elect, in the Subscription Form, to exercise
without paying in cash (“Cashless
Exercise”)
all or
part of this Warrant and to receive, a number of shares of Common Stock equal
to
the number of shares of Common Stock that the Holder would receive had the
Holder paid the aggregate Exercise Price reduced by that number of shares
of
Common Stock equal to the quotient obtained by dividing (x) the aggregate
Exercise Price (assuming no Cashless Exercise) to be paid by (y) the Current
Market Price in effect on such day of election of Cashless Exercise under
this
Section 1.7 for one share of Common Stock.
(b) For
purposes of this Section 1.7, the following terms shall have the meaning
indicated:
(i) “Current
Market Price”
shall
mean the average of the daily Closing Sale Prices per share of Common Stock
for
the ten (10) consecutive Trading Days ending on the earlier of the Trading
Day
immediately preceding the relevant date and the day before the “ex” date. For
purpose of this paragraph, the term “ex” date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common Stock
trades,
regular way, on the relevant exchange or in the relevant market from which
the
Closing Sale Price was obtained without the right to receive such issuance
or
distribution, and (2) when used with respect to any subdivision or combination
of shares of Common Stock, means the first date on which the Common Stock
trades, regular way, on such
exchange or in such market after the time at which such subdivision or
combination becomes effective. If another issuance, distribution, subdivision
or
combination to which this Sub-section applies occurs during the period
applicable for calculating “Current Market Price”, “Current Market Price” shall
be calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such issuance, distribution, subdivision or combination
on the Closing Sale Price of the Common Stock during such period.
3
(ii) “Closing
Sale Price”
of
the
shares of Common Stock on any date means (i) if the Common Stock is primarily
traded on a national securities exchange, the last sale price on such national
securities exchange on the applicable day, or if no sale occurred on such
day,
the mean between the closing “bid” and “asked” prices on such day, (ii) if the
principal market for Common Stock is in the over-the-counter market, the
closing
sale price on the applicable day as published by The NASDAQ Stock Market,
Inc.
or similar organization, or if such price is not so published on such day,
the
mean between the closing “bid” and “asked” priced, if available on such day,
which prices may be obtained from any reputable pricing service, broker or
dealer, and (ii) if neither clause (i) nor clause (ii) is applicable, the
fair
market value as determined in good faith by the Board of Directors of the
Company. The Closing Sale Price shall be determined based on regular market
hours without reference to extended after hours trading or pre-market
trading.
(iii) “Trading
Day”
shall
mean (x) if the applicable security is quoted on NYSE Euronext or another
national securities exchange, a day on which NYSE Euronext, or other applicable
national securities exchange is open for business, or (y) if the applicable
security is not so listed, admitted for trading or quoted, any day other
than a
Saturday or Sunday or a day in which banking institutions in the State of
New
York are authorized or obligated by law or executive order to
close.
2. Adjustment
for Reorganization, Consolidation, Merger, etc.
2.1 Reorganization,
Consolidation, Merger, etc.
In case
at any time or from time to time, the Company shall (a) effect a reorganization,
(b) consolidate with or merge into any other person or (c) transfer all or
substantially all of its properties or assets to any other person under any
plan
or arrangement contemplating the dissolution of the Company, then, in each
such
case, as a condition to the consummation of such a transaction, notice shall
be
provided to the Holder of this Warrant as set forth in this Section 2.1 and
proper and adequate provision shall be made by the Company whereby the Holder
of
this Warrant, on the exercise hereof as provided in Section 1, at any time
after
the consummation of such reorganization, consolidation or merger or the
effective date of such dissolution, as the case may be, shall receive, in
lieu
of the Common Stock (or Other Securities) issuable on such exercise prior
to
such consummation or such effective date, the stock and Other Securities
and
property (including cash) to which such Holder would have been entitled upon
such consummation or in connection with such dissolution, as the case may
be, if
such Holder had so exercised this Warrant, immediately prior thereto, all
subject to further adjustment thereafter as provided in this Section 2. In
each
case of (a), (b) or (c) in this Section 2.1, the Company shall provide written
notice to the Holder in accordance with Section 9 hereof at the earliest
practicable time (in any event, not less than fifteen (15) days before any
record date or other date set for definitive action) of the date on which
the
books of the Company will close or a record will be taken for determining
holders of Common Stock entitled to participate in any such reorganization,
consolidation, merger, sale or dissolution, as the case may be.
4
2.2 Dissolution.
In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
Other Securities and property (including cash, where applicable) receivable
by
the Holder of this Warrant upon exercise of this Warrant after the effective
date of such dissolution pursuant to this Section 2, to a bank or trust company
(a "Trustee")
having
its principal office in New York, NY, as trustee for the Holder of the
Warrants.
2.3 Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 2, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable
to
the Other Securities and property receivable on the exercise of this Warrant
after the consummation of such reorganization, consolidation or merger or
the
effective date of dissolution following any such transfer, as the case may
be,
and shall be binding upon the issuer of any Other Securities, including,
in the
case of any such transfer, the person acquiring all or substantially all
of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in this Section 2.
In
the event this Warrant does not continue in full force and effect after the
consummation of the transaction described in this Section 2, then only in
such
event will the Company's securities and property (including cash, where
applicable) receivable by the Holder of the Warrants be delivered to the
Trustee
as contemplated by Sub-section 2.2.
2.4 Extraordinary
Events Regarding Common Stock.
(a) In
the event that the Company shall (i) issue additional shares of the Common
Stock
as a dividend or other distribution on outstanding Common Stock, (ii) subdivide
its outstanding shares of Common Stock, or (iii) combine its outstanding
shares
of the Common Stock into a smaller number of shares of the Common Stock,
then,
in each such event, the Exercise Price shall, simultaneously with the happening
of such event, be adjusted by multiplying the then Exercise Price by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the
number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Exercise Price then in effect.
The
Exercise Price, as so adjusted, shall be readjusted in the same manner upon
the
happening of any successive event or events described herein in this Sub-section
2.4.
(b) In
case
the Company shall issue rights or warrants to all holders of its outstanding
shares of Common Stock entitling them (for a period expiring within forty-five
(45) days after the date fixed for determination of shareholders entitled
to
receive such rights or warrants) to subscribe for or purchase shares of Common
Stock at a price per share less than the Exercise Price immediately preceding
the date such distribution is first publicly announced by the Company, the
Exercise Price shall be adjusted so that the same shall equal the rate
determined by multiplying the Exercise Price in effect immediately prior
to the
date fixed for determination of shareholders entitled to receive such rights
or
warrants by a fraction,
5
(i) the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for determination
of
shareholders entitled to receive such rights or warrants plus the number
of
shares that the aggregate offering price of the total number of shares so
offered would purchase at a price equal to the Exercise Price immediately
preceding the date such distribution is first publicly announced by the Company,
and
(ii) the
denominator of which shall be the number of shares of Common Stock outstanding
on the date fixed for determination of shareholders entitled to receive such
rights or warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase,
such
adjustment shall be successively made whenever any such rights or warrants
are
issued, and shall become effective immediately after the opening of business
on
the day following the date fixed for determination of shareholders entitled
to
receive such rights or warrants. If such rights or warrants are not so issued,
the Exercise Price shall again be adjusted to be the Exercise Price that
would
then be in effect if such date fixed for the determination of shareholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at a price less than the Exercise Price immediately
preceding the date such distribution is first publicly announced by the Company,
and in determining the aggregate offering price of such shares of Common
Stock,
there shall be taken into account any consideration received by the Company
for
such rights or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors of the Company.
Rights
or
warrants distributed by the Company to all holders of Common Stock entitling
the
holders thereof to subscribe for or purchase shares of the Company’s capital
stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (“Trigger
Event”):
(i)
are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
Common
Stock, shall be deemed not to have been distributed for purposes of this
Sub-section (and no adjustment to the Exercise Price under this Sub-section
will
be required) until the occurrence of the earliest Trigger Event, whereupon
such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Exercise Price shall be made under
this
Sub-section 2.4(b). If any such rights or warrants, including any such existing
rights or warrants distributed prior to the date of this Warrant, are subject
to
events, upon the occurrence of which such rights or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed
to be
the date of distribution and record date with respect to new rights or warrants
with such rights (and a termination or expiration of the existing rights
or
warrants without exercise by any of the holders thereof). In addition, in
the
event of any distribution (or deemed distribution) of rights or warrants,
or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Exercise Price under this Sub-section
was
made, (1) in the case of any such rights or warrants that shall all have
been
redeemed or repurchased without exercise by any holders thereof, the Exercise
Price shall be readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be, as though
it
were a cash distribution, equal to the per share redemption or repurchase
price
received by a holder or holders of Common Stock with respect to such rights
or
warrants (assuming such holder had retained such rights or warrants), made
to
all holders of Common Stock as of the date of such redemption or repurchase,
and
(2) in the case of such rights or warrants that shall have expired or been
terminated without exercise by any holders thereof, the Exercise Price shall
be
readjusted as if such rights and warrants had not been issued.
6
No
adjustment of the Exercise Price shall be made pursuant to this Sub-section
2.4(b) in respect of rights or warrants distributed or deemed distributed
on any
Trigger Event to the extent that such rights or warrants are actually
distributed, or reserved by the Company for distribution to holders of the
Company’s 7.75% Convertible Notes (the “Notes”)
upon
conversion by such holders of Notes to Common Stock.
(c)
If
the
Company shall issue or sell its Common Stock at a price per share less than
the
Exercise Price then in effect, or shall issue or sell any securities
convertible, exchangeable, or exercisable into Common Stock at a price per
share
less than the Exercise Price then
in
effect, the Exercise Price shall be decreased such that the Exercise Price
is
equal to the lowest price or per share at which the Company has issued or
sold
its Common Stock after October 1, 2008 such adjustment to take effect as
of the
date of the issuance or sale of such Common Stock; provided, however, that
no
adjustment shall he made to the Exercise Price for (i) the issuance of Common
Stock pursuant to the conversion or exercise of convertible or exercisable
securities issued or outstanding on or prior to October 1, 2008 or the Notes,
(ii) the issuance of Common Stock or any other securities exercisable into
shares of Common Stock pursuant to exercise of stock options granted or reserved
under the Company’s employee stock options existing on October 1, 2008 or
adopted thereafter, or (iii) the issuance, after October 1, 2008, of Common
Stock or any other securities exercisable into shares of Common Stock issued
or
granted to third-party consultants or employees of the Company and its
subsidiaries under the Company’s employee stock options or pursuant to written
contractual arrangements relating to the compensation for the services rendered
to the Company or its subsidiaries by such consultants or employees, to the
extent that all such shares or securities issued under subclauses (ii) or
(iii)
in this paragraph, in the aggregate, on a cumulative basis and without double
counting, do not exceed five percent (5%) of the Common Stock of the Company
issued and outstanding immediately prior to such issuance.
(d) The
Company may make such increases in the Exercise Price, in addition to those
required by Sub-section 2.4 as the Board of Directors considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights
to
purchase Common Stock resulting from any dividend or distribution of stock
(or
rights to acquire stock) or from any event treated as such for income tax
purposes.
(e)
The
Exercise Price, as so adjusted pursuant to Sub-section 2.4, shall be readjusted
in the same manner upon the happening of any successive event or events
described herein in this Sub-section 2.4. The number of shares of Common
Stock
that the Holder of this Warrant shall thereafter, on the exercise hereof
as
provided in Section 1, be entitled to receive shall be adjusted to a number
determined by multiplying the number of shares of Common Stock that would
otherwise (but for the provisions of this Sub-section 2.4) be issuable on
such
exercise by a fraction of which (a) the numerator is the Exercise Price that
would otherwise (but for the provisions of this Sub-section 2.4) be in effect,
and (b) the denominator is the Exercise Price in effect on the date of such
exercise.
7
(f) No
adjustment in the Exercise Price shall be required unless such adjustment
would
require an increase or decrease of at least one percent (1%) in such rate;
provided that any adjustments that by reason of this Sub-section 2.4 are
not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Sub-section 2.4 shall
be made
by the Company and shall be made to the nearest cent or to the nearest one-ten
thousandth (1/10,000) of a share, as the case may be. No adjustment need
be made
for rights to purchase Common Stock pursuant to a Company plan for reinvestment
of dividends or interest.
(g) Whenever
the Exercise Price is adjusted as herein provided, the Company shall follow
the
procedures for the issuance of a Certificate of Adjustments as set forth
below
in Sub-section 2.5.
(h) For
purposes of this Section, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company
but
shall include shares issuable in respect of scrip certificates issued in
lieu of
fractions of shares of Common Stock. The Company will not pay any dividend
or
make any distribution on shares of Common Stock held in the treasury of the
Company.
2.5 Certificate
as to Adjustments.
In each
case of any adjustment or readjustment in the shares of Common Stock (or
Other
Securities) issuable on the exercise of the Warrants, the Company at its
expense
will promptly cause its Chief Executive Officer or other appropriate designee
to
compute such adjustment or readjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is
based, including a statement of (a) the consideration received or receivable
by
the Company for any additional shares of Common Stock (or Other Securities)
issued or sold or deemed to have been issued or sold, (b) the number of shares
of Common Stock (or Other Securities) outstanding or deemed to be outstanding,
and (c) the Exercise Price and the number of shares of Common Stock to be
received upon exercise of this Warrant, in effect immediately prior to such
adjustment or readjustment and as adjusted or readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate
to the
Holder of the Warrant and any Warrant Agent of the Company (appointed pursuant
to Section 8 hereof).
3. Reservation
of Stock, etc. Issuable on Exercise of Warrant; Financial
Statements.
The
Company will at all times reserve and keep available, solely for issuance
and
delivery on the exercise of the Warrants, all shares of Common Stock (or
Other
Securities) from time to time issuable on the exercise of the Warrant. This
Warrant entitles the Holder hereof to receive copies of all financial and
other
information distributed or required to be distributed to the holders of the
Company's Common Stock.
4. Assignment;
Exchange of Warrant.
Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered holder hereof (a
"Transferor").
On
the surrender for exchange of this Warrant, with the Transferor's endorsement
in
the form of Exhibit
B
attached
hereto (the "Transferor
Endorsement Form"),
the
Company at its expense, but with payment by the Transferor of any applicable
transfer taxes, will issue and deliver to or on the order of the Transferor
thereof a new Warrant or Warrants of like tenor, in the name of the Transferor
and/or the transferee(s) specified in such Transferor Endorsement Form (each
a
"Transferee"),
calling in the aggregate on the face or faces thereof for the number of shares
of Common Stock called for on the face or faces of the Warrant so surrendered
by
the Transferor. No such transfers shall result in a public distribution of
the
Warrant.
8
5. Replacement
of Warrant.
On
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 of this Warrant, on delivery of an indemnity agreement
or
security reasonably satisfactory in form and amount to the Company or, in
the
case of any such mutilation, on surrender and cancellation of this Warrant,
the
Company at its expense, will execute and deliver, in lieu thereof, a new
Warrant
of like tenor.
6. Registration
Rights.
The
Holder of this Warrant has been granted certain registration rights by the
Company. These registration rights are set forth in the Subscription Agreement
and the Registration Rights Agreement. The terms of the Subscription Agreement
and the Registration Rights Agreement are incorporated herein by this
reference.
7. Warrant
Agent.
The
Company may, by written notice to the Holder of the Warrant, appoint an agent
(a
“Warrant
Agent”)
for
the purpose of issuing Common Stock (or other Securities) on the exercise
of
this Warrant pursuant to Section 1, exchanging this Warrant pursuant to Section
4, and replacing this Warrant pursuant to Section 5, or any of the foregoing,
and thereafter any such issuance, exchange or replacement, as the case may
be,
shall be made at such office by such Warrant Agent.
8. Transfer
on the Company's Books.
Until
this Warrant is transferred on the books of the Company, the Company may
treat
the registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
9. Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served or hand delivered, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by express courier service with charges
prepaid, or (iv) transmitted by facsimile, addressed as set forth below or
to
such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be given
hereunder shall be deemed effective (i) if personally served, when served,
or
upon hand delivery, (ii) if mailed, on the third business day after deposit
in
first class mail with postage prepaid and properly addressed, (iii) if by
express courier service, when received, and (iv) if by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address
or
number designated below, on the day transmitted (if delivered on a business
day
during normal business hours where such notice is to be received), or the
first
business day following such transmittal (if delivered other than on a business
day during normal business hours where such notice is to be received). The
addresses for such communications shall be: (i) if to the Company, to: American
Dairy, Inc., Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxxxx, 00, Jiuxianqiuo Road,
C-16th
Floor,
Chaoyang, Beijing, People's Republic of China, Attn: Xxxxxxxx Xxxx, Chief
Financial Officer, facsimile number: 86 10 6435 4831, with a copy by facsimile
only to: Xxxx X. Xxxxxx, Esq., Xxxxx Day, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, facsimile number: (000) 000-0000, or to such
other
address as may be hereafter notified in accordance with this Section 9 by
the
Company to the Holder; and (ii) if to the Holder, to the address and facsimile
number indicated
in the first paragraph of this Warrant, or to such other address as may be
hereafter notified in accordance with this Section 9 by the Holder to the
Company.
9
10. Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This Warrant
shall
be construed and enforced in accordance with and governed by the laws of
New
York. Each party hereto: (a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
jurisdiction of the courts of the State of New York in New York County, City
of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof; (b) consents that any
such
action or proceeding may be brought in such courts and waives any objection
that
it may now or hereafter have to the venue of any such action or proceeding
in
any such court and agrees not to plead or claim the same; and (c) agrees
that
nothing herein shall affect the right to effect service of process in any
manner
permitted by law or shall limit the right to xxx in any other jurisdiction.
The
headings in this Warrant are for purposes of reference only, and shall not
limit
or otherwise affect any of the terms hereof. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability
of
any other provision.
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REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
10
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
| Witness: | AMERICAN DAIRY, INC. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
11
