WARRANT TO PURCHASE SHARES OF COMMON STOCK of CHINA MEDIAEXPRESS HOLDINGS, INC. Void after January __, 2015
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE WARRANT UNDER SUCH ACT AND APPLICABLE LAWS OR SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
No.
W - ____________
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Warrant
to Purchase ______ Shares of
Common
Stock (subject to
adjustment)
|
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
of
Void
after January __, 2015
This
certifies that, for value received, Starr Investments Cayman II, Inc., or its
registered assigns (“Holder”) is entitled,
subject to the terms set forth below, to purchase from China MediaExpress
Holdings, Inc., a Delaware corporation (the “Company”), 1,545,455
shares (the “Warrant
Shares”) of the common stock, par value US$0.001 per share, of the
Company (the “Common
Stock”) as constituted on the date hereof (the “Warrant Issue Date”),
upon surrender hereof, at the principal office of the Company referred to below,
with the subscription form attached hereto duly executed, and simultaneous
payment therefor in lawful money of the United States or otherwise as
hereinafter provided, at the Warrant Exercise Price as set forth in Section 1.1
below. The number, character and Warrant Exercise Price of such shares of common
stock are subject to adjustment as provided below. The term “Warrant” as used
herein shall include this Warrant, and any warrants delivered in substitution or
exchange therefor as provided herein. This Warrant is issued in
connection with the transactions described in Section 2 of that certain
Securities Purchase Agreement between the Company, the Investor (as defined
therein) and the other parties thereto as described therein, dated as of January
12, 2010, as the same may from time to time be amended, modified or supplemented
(the “Purchase
Agreement”). The holder of this Warrant is subject to certain
restrictions set forth in the Purchase Agreement and shall be entitled to
certain rights and privileges set forth in the Purchase
Agreement. This Warrant evidences all of the Warrants referred to as
the “Purchased Warrants” in the Purchase Agreement.
All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Purchase Agreement.
1.2 Duration
of Warrants. Except as set forth in this Section 1.2, this Warrant
may be exercised, in whole or in part, during the period (“Exercise Period”)
commencing on the Warrant Issue Date, and terminating at 5:00 p.m., New York
city time on the earlier to occur of (a) the date five (5) years after the
Warrant Issue Date or (b) the date fixed for redemption of the Warrants as
provided in Section 4 of this Agreement (“Expiration Date”).
Each Warrant not exercised on or before the Expiration Date shall become void,
and all rights in respect thereof 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 any extension of the duration of the Warrants must apply equally to all of
the Warrants.
2.
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(i) a
proportionate share of any such dividend as if the shares of Common Stock
purchased upon exercise hereof by such registered holder had been purchased and
outstanding on the record date fixed for the determination of the holders of
Common Stock entitled to receive such dividend; or
(ii) an
adjustment of the Warrant Exercise Price in accordance with the formula as set
forth below:
E'
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=
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E
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X
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M - F
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M
|
where:
E'
|
=
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the
adjusted Warrant Exercise Price.
|
E
|
=
|
the
current Warrant Exercise Price.
|
M
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=
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the
volume-weighted average closing price of Common Stock for the thirty (30)
Trading Days immediately prior to the record
date
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F
|
=
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the
fair market value on the record date of the assets, securities, rights or
warrants applicable to one share of Common Stock. The board of
directors of the Company shall determine the fair market value in good
faith.
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The
adjustment shall be made successively whenever any such distribution is made and
shall become effective immediately after the record date for the determination
of the holders of Common Stock entitled to receive the
distribution.
3.5.1 The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the shares of Common Stock to be issued upon exercise hereof or conversion
thereof are being acquired solely for the Holder’s own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof or conversion thereof except under
circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the shares of Common Stock so purchased are being acquired solely for the
Holder’s own account and not as a nominee for any other party, for investment;
and not with a view toward distribution or resale.
3.5.2 This
Warrant and all shares of Common Stock issued upon exercise hereof or conversion
thereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities
laws):
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS. SUCH SECURITIES AND ANY SECURITIES ISSUED
HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND APPLICABLE
LAWS. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
4.
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5.1 No
Rights as Stockholder. Subject to Section 2 and 4.3 hereof, 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.
6.2.1 Whenever
the Warrant Exercise Price or number of shares purchasable hereunder shall be
adjusted pursuant to Section 2 hereof, the Company shall issue a
certificate signed by its Chief Financial Officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Warrant Exercise Price
and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
6.2.2.1
of the Company taking a record of the holders of its Common Stock (or other
stock or securities at the time receivable upon the exercise of this Warrant)
for the purpose of entitling them to receive any dividend or other distribution,
or any right to subscribe for or purchase any shares of stock of any class
or any other securities, or to receive any other right, or
6.2.2.2
of any capital reorganization of the Company, any reclassification of the
capital stock of the Company, any consolidation or merger of the Company with or
into another corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation, or
6.2.2.3
of any voluntary dissolution, liquidation or winding-up of the
Company,
then, and
in each such case, the Company will mail or cause to be mailed to the Holder or
Holders a notice specifying, as the case may be, (A) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, or (B)
the date on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record-of Common Stock
(or such stock or securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
6.2.3 All
such notices, advices and communications shall be deemed to have been received
(i) in the case of personal or overnight delivery, on the date of such delivery
or (ii) if sent by certified mail or private courier service within five days
after deposit of such notice, postage prepaid, in each case, addressed as
follows.
If to the
Company:
China
MediaExpress Holdings, Inc
Room
2805
Central
Plaza
Wanchai,
Hong Kong
Attention:
Xxxxx Xxxxx and Xxxxx Xxx
Facsimile:
x000.0000.0000
with a
copy to:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Attention: Xxxxxxxx
X. Xxxxxxxx / Xxxxx X. Xxxxxxxx
Facsimile: x0-000-000-0000
If to the
Holder:
Starr
Investments Cayman II, Inc.
Bermuda
Commercial Bank Building, 5th Floor
00 Xxx xx
Xxxxx Xxxx
Xxxxxxxx
XX 11
Bermuda
Attention:
Xxxxxx Xxxxxxxx / Xxxxx Xxxxxxx
With a
copy to:
Starr
Investments Cayman II, Inc.
c/o
Beijing X.X. Xxxxx Investment Advisors Limited Shanghai Branch
Suite
4609-0000X, Xxxxx XX, Xxxxx 00,
0000
Xxxxxxx Xxxx Xxxx,
Shanghai
200040 People’s Republic of China
Attention:
Xxxx Xxx / Xxxxxxx Xxxx
Facsimile:
+8621.6288.9773
with a
copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
30th Floor,
Tower 2, China World Trade Centre
Xx. 0
Xxxxxxxxxxxxx Xxxxxx
Beijing
100004 People’s Republic of China
Attention:
Xxx X Xxxxxxxxxxxx
Facsimile: +8610.6535.5577
6.3 Applicable
Law. The validity, interpretation, and performance of this Warrant
shall be governed in all respects by the laws of the State of New York, without
giving effect to the conflicts of law principle thereof. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Warrant 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
6.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
6.4.1 Any
term of this Warrant may be amended only with the written consent of the Company
and the Holder. Any amendment effected in accordance with this
Section 6.4 shall be binding upon such Holder, each future holder of the
Warrants, and the Company.
6.4.2 No
waivers of, or exceptions to, any term, condition or provision of this Warrant,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, China MediaExpress Holdings, Inc. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated:
_____________, 2010
By:
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Name:
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Title:
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STARR
INVESTMENTS CAYMAN II, INC.
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By:
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Name:
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Title:
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[Signature Page to
Warrant]
EXHIBIT
A
NOTICE
OF EXERCISE
1.
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The
undersigned hereby (A) elects to purchase ______ shares of Common Stock of
China MediaExpress Holdings, Inc, pursuant to the provisions of Section
1.3 of this Warrant, and tenders herewith payment of the purchase price
for such shares in full, and/or (B) elects to exercise this Warrant for
the purchase of _______ shares of Common Stock, by a cancellation of
indebtedness or other obligations pursuant to the provisions of Section
1.3 of this Warrant.
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2.
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In
exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of Common Stock are being acquired solely for the account
of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise
dispose of any such shares of Common Stock except under circumstances that
will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities
laws.
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3.
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Please
issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
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(Name)
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4.
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Please
issue a new Warrant for the unexercised portion of this Warrant in the
name of the undersigned or in such other name as is specified
below:
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Name:
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EXHIBIT
B
Date:
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns
and transfers unto the Assignee named below all of the rights of the undersigned
under the within Warrant, with respect to the number of shares of Common Stock
set forth below:
Name
of Assignee
|
Address
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No.
of Shares
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and does
hereby irrevocably constitute and appoint _____________ Attorney to make such
transfer on the books of China MediaExpress Holdings, Inc., maintained for the
purpose, with full power of substitution in the premises.
The
undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Name:
Dated: