Attached files
FORM
OF WARRANT
THESE
SECURITIES, INCLUDING THE COMMON STOCK ACQUIRABLE UNDER THIS WARRANT, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
SHARES ACQUIRABLE UNDER THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES
ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION; HEDGING
TRANSACTIONS INVOLVING THE SHARES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.
Warrant
To Purchase Common Stock
SinoCoking
Coal and Coke Chemical Industries, Inc.
Warrant
No.: [__________]
Issuance
Date: [__________]
(“Issuance
Date”)
Warrant
Shares: [__________]
Exercise
Price: $12.00
per share
SinoCoking
Coal and Coke Chemical Industries, Inc., a Florida corporation, hereby certifies
that for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, [NAME OF PURCHASER], the registered holder hereof or
its permitted assigns (the “Holder”), is entitled, subject
to the terms set forth below, to purchase from the Company, at an exercise price
of Twelve Dollars ($12.00) per share (subject to adjustment as provided below),
upon surrender of this Warrant to Purchase Common Stock (including any Warrants
to Purchase Common Stock issued in exchange, transfer or replacement hereof, the
“Warrant”), at any time
or times on or after the date hereof, but not after 11:59 p.m., Pacific Time, on
December __, 20__ (the “Expiration Date”), the number
of fully paid nonassessable shares of Common Stock determined in accordance with
Section 1(a) below which shall upon initial issuance of this Warrant equal 50%
times the number of shares of Common Stock purchased by the Holder under the
Securities Purchase Agreement (the “Warrant
Shares”). Capitalized terms used in this Warrant that are not
defined herein shall have the same meanings as set forth in the Securities
Purchase Agreement. This Warrant is one of a series of warrants to
purchase Common Stock (the “Warrants”) issued pursuant to
Section 1 of that certain Securities Purchase Agreement, dated as of [insert date] (the “Subscription Date”), by and
among the Company and the Purchasers who are signatories thereto (the “Purchasers”) referred to
therein (the “Securities
Purchase Agreement”).
1. EXERCISE
OF WARRANT.
(a) Warrant Shares. This
Warrant shall be exercisable for up to __________ shares of Common Stock until
the Expiration Date.
(b) Mechanics of
Exercise. Subject to the terms and conditions hereof
(including, without limitation, the limitations set forth in Section 1(g)), this
Warrant may be exercised by the Holder on any day on or after the date hereof,
in whole or in part, by (i) delivery of a written notice, in the form
attached hereto as Exhibit A (the “Exercise Notice”), of the
Holder’s election to exercise this Warrant and (ii) payment to the Company
of an amount equal to the applicable Exercise Price multiplied by the number of
Warrant Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in
cash or by wire transfer of immediately available funds. The Holder
shall not be required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Exercise Notice
with respect to less than all of the Warrant Shares shall have the same effect
as cancellation of the original Warrant and issuance of a new Warrant evidencing
the right to purchase the remaining number of Warrant Shares. On or
before the first Business Day following the date on which the Company has
received each of the Exercise Notice and the Aggregate Exercise Price (the
“Exercise Delivery
Documents”), the Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of the Exercise Delivery Documents to the Holder and the
Company’s transfer agent (the “Transfer
Agent”). On or before the third Business Day following the
date on which the Company has received all of the Exercise Delivery Documents
(the “Share Delivery
Date”), the Company shall issue and dispatch by overnight courier to the
address as specified in the Exercise Notice, a certificate, registered in the
Company’s share register in the name of the Holder or its designee, for the
number of shares of Common Stock to which the Holder is entitled pursuant to
such exercise. Upon delivery of the Exercise Notice and Aggregate
Exercise Price referred to in clause (ii) above, the Holder shall be deemed for
all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date
of delivery of the certificates evidencing such Warrant Shares. If
this Warrant is submitted in connection with any exercise pursuant to this
Section 1(b) and the number of Warrant Shares represented by this Warrant
submitted for exercise is greater than the number of Warrant Shares being
acquired upon an exercise, then the Company shall as soon as practicable and in
no event later than three Business Days after any exercise and at its own
expense, issue a new Warrant (in accordance with Section 7(d)) representing the
right to purchase the number of Warrant Shares purchasable immediately prior to
such exercise under this Warrant, less the number of Warrant Shares with respect
to which this Warrant is exercised. This Warrant may not be exercised
for less than 100 shares (as appropriately adjusted for stock splits,
combinations and similar events). No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant, but rather the number
of shares of Common Stock to be issued shall be rounded up to the nearest whole
number. The Company shall pay any and all taxes which may be payable
with respect to the issuance and delivery of Warrant Shares upon exercise of
this Warrant.
-2-
Common
Stock Warrant – SinoCoking
(c) Exercise
Price. For purposes of this Warrant, “Exercise Price” means Twelve
U.S. Dollars ($12.00) per share, subject to adjustment as provided
herein.
(d) Disputes. In
the case of a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall promptly issue
to the Holder the number of Warrant Shares that are not disputed and resolve
such dispute in accordance with Section 12.
2. ADJUSTMENT OF EXERCISE PRICE
AND NUMBER OF WARRANT SHARES. The Exercise Price and the
number of Warrant Shares shall be adjusted from time to time as
follows:
(a) Adjustment upon Subdivision
or Combination of Common Stock. If the Company at any time on
or after the Closing Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the
number of Warrant Shares will be proportionately increased. If the
Company at any time on or after the Closing Date combines (by combination,
reverse stock split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately increased and the
number of Warrant Shares will be proportionately decreased. Any
adjustment under this Section 2(a) shall become effective at the close of
business on the date the subdivision or combination becomes
effective.
3. NONCIRCUMVENTION. The
Company hereby covenants and agrees that the Company will not, by amendment of
its Articles of Incorporation, Bylaws or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale
of securities, or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, and will at all
times in good faith carry out all the provisions of this Warrant and take all
action as may be required to protect the rights of the
Holder. Without limiting the generality of the foregoing, the Company
(i) shall not increase the par value of any shares of Common Stock
receivable upon the exercise of this Warrant above the Exercise Price then in
effect, (ii) shall take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant, and
(iii) shall, so long as any of the Warrants are outstanding, take all action
necessary to reserve and keep available out of its authorized and unissued
shares of Common Stock, solely for the purpose of effecting the exercise of the
Warrants, a sufficient number of shares of Common Stock as shall from time to
time be necessary
to effect the exercise of the Warrants then outstanding (without regard to any
limitations on exercise).
-3-
Common
Stock Warrant – SinoCoking
4. WARRANT HOLDER NOT DEEMED A
SHAREHOLDER. Except as otherwise specifically provided herein,
the Holder, solely in such Person’s capacity as a holder of this Warrant, shall
not be entitled to vote or receive dividends or be deemed the holder of share
capital of the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in such Person’s capacity
as the Holder of this Warrant, any of the rights of a shareholder of the Company
or any right to vote, give or withhold consent to any corporate action (whether
any reorganization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings, receive dividends
or subscription rights, or otherwise, prior to the issuance to the Holder of the
Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this
Warrant shall be construed as imposing any liabilities on the Holder to purchase
any securities (upon exercise of this Warrant or otherwise) or as a shareholder
of the Company, whether such liabilities are asserted by the Company or by
creditors of the Company. Notwithstanding this Section 4, the Company
shall provide the Holder with copies of the same notices and other information
given to the shareholders of the Company generally, contemporaneously with the
giving thereof to the shareholders.
5. REISSUANCE OF
WARRANTS.
(a) Transfer of
Warrant. If this Warrant is to be transferred, the Holder
shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the Holder a new Warrant (in
accordance with Section 5(d)), registered as the Holder may request,
representing the right to purchase the number of Warrant Shares being
transferred by the Holder and, if less then the total number of Warrant Shares
then underlying this Warrant is being transferred, a new Warrant (in accordance
with Section 5(d)) to the Holder representing the right to purchase the number
of Warrant Shares not being transferred. Applicable transfer taxes,
if any, shall be paid by the Holder.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and, in the case of loss, theft or destruction, of any
indemnification undertaking by the Holder to the Company in customary form and,
in the case of mutilation, upon surrender and cancellation of this Warrant, the
Company shall execute and deliver to the Holder a new Warrant (in accordance
with Section 5(d)) representing the right to purchase the Warrant Shares then
underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender
hereof by the Holder at the principal office of the Company, for a new Warrant
or Warrants (in accordance with Section 5(d)) representing in the aggregate the
right to purchase the number of Warrant Shares then underlying this Warrant, and
each such new Warrant will represent the right to purchase such portion of such
Warrant Shares as is designated
by the Holder at the time of such surrender; provided, however, that no Warrants
for fractional shares of Common Stock shall be given.
-4-
Common
Stock Warrant – SinoCoking
(d) Issuance of New
Warrants. Whenever the Company is required to issue a new
Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of
like tenor with this Warrant, (ii) shall represent, as indicated on the face of
such new Warrant, the right to purchase the Warrant Shares then underlying this
Warrant (or in the case of a new Warrant being issued pursuant to Section 5(a)
or Section 5(c), the Warrant Shares designated by the Holder which, when added
to the number of shares of Common Stock underlying the other new Warrants issued
in connection with such issuance, does not exceed the number of Warrant Shares
then underlying this Warrant), (iii) shall have an issuance date, as indicated
on the face of such new Warrant which is the same as the Issuance Date, and (iv)
shall have the same rights and conditions as this Warrant.
6. NOTICES. Whenever
notice is required to be given under this Warrant, unless otherwise provided
herein, such notice shall be given in accordance with Section 9(a) of the
Securities Purchase Agreement. The Company shall provide the Holder
with prompt written notice of all actions taken pursuant to this Warrant,
including in reasonable detail a description of such action and the reason
therefore. Without limiting the generality of the foregoing, the
Company will give written notice to the Holder (i) immediately upon any
adjustment of the Exercise Price, setting forth in reasonable detail, and
certifying, the calculation of such adjustment and (ii) at least fifteen days
prior to the date on which the Company closes its books or takes a record with
respect to any dividend or distribution upon the shares of Common
Stock.
7. AMENDMENT AND
WAIVER. Except as otherwise provided herein, the provisions of
this Warrant may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company has obtained the written consent of the Required Holders;
provided that no such action may increase the exercise price of any Warrants
issued under the Securities Purchase Agreement or decrease the number of shares
or class of stock obtainable upon exercise of any Warrants issued under the
Securities Purchase Agreement without the written consent of the
Holder. No such amendment shall be effective to the extent that it
applies to less than all of the holders of the Warrants then
outstanding.
8. GOVERNING
LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California without regard to
the choice of law principles thereof.
9. CONSTRUCTION;
HEADINGS. This Warrant shall be deemed to be jointly drafted
by the Company and all the Holders and shall not be construed against any person
as the drafter hereof. The headings of this Warrant are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Warrant.
-5-
Common
Stock Warrant – SinoCoking
10. DISPUTE
RESOLUTION. In the case of a dispute as to the determination
of the Exercise Price or the arithmetic calculation of the Warrant Shares, the
Company shall submit the disputed determinations or arithmetic calculations via
facsimile within two Business Days of receipt of the Exercise Notice giving rise
to such dispute, as the case may be, to the Holder. If the Holder and
the Company are unable to agree upon such determination or calculation of the
Exercise Price or the Warrant Shares within three Business Days of such disputed
determination or arithmetic calculation being submitted to the Holder, then the
Company shall, within two Business Days submit via facsimile (a) the disputed
determination of the Exercise Price to an independent, reputable investment bank
selected by the Company and approved by the Holder or (b) the disputed
arithmetic calculation of the Warrant Shares to the Company’s independent,
outside accountant. The Company shall cause at its expense the
investment bank or the accountant, as the case may be, to perform the
determinations or calculations and notify the Company and the Holder of the
results no later than ten Business Days from the time it receives the disputed
determinations or calculations. Such investment bank’s or
accountant’s determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
11. TRANSFER. This
Warrant may be offered for sale, sold, transferred or assigned without the
consent of the Company, except as may otherwise be prohibited by U.S. or other
applicable securities laws, or by Section 2 of the Securities Purchase
Agreement.
12. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms
shall have the following meanings:
(a) “Business Day” means any day
other than Saturday, Sunday or other day on which commercial banks in the City
of Los Angeles are authorized or required by law to remain closed.
(b) “Common Stock” means
(i) the Company’s shares of Common Stock, par value $0.001 per share, and
(ii) any share capital into which such Common Stock shall have been changed
or any share capital resulting from a reclassification of such Common
Stock.
(c) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and a government or any
department or agency thereof.
(d) “Required Holders” means the
holders of the Warrants representing at least a majority of shares of Common
Stock underlying the Warrants then outstanding.
(e) “Securities” means Common Stock
and the Warrants issued pursuant to the Securities Purchase
Agreement.
-6-
Common
Stock Warrant – SinoCoking
13. REGISTRATION
RIGHTS. If the Company at any time proposes to register any of
its common stock under the Securities Act of 1933, as amended (“1933 Act”) for sale to the
public, whether for its own account or for the account of other security holders
or both, except with respect to registration statements on Forms S-4, S-8 or
another form not available for registering the common stock for sale to the
public, provided such shares are not otherwise registered for resale by the
Holder pursuant to an effective registration statement, the Company will cause
the common stock issuable to the Holder hereunder (the “Registrable Warrant Shares”)
to be included with the securities to be covered by the registration statement
proposed to be filed by the Company. In the event that any
registration pursuant to this Section 13 shall be, in whole or in part, an
underwritten public offering of common stock of the Company, the number of
shares of Registrable Warrant Shares to be included in such an underwriting may
be reduced by the managing underwriter if and to the extent that the Company and
the underwriter shall reasonably be of the opinion that such inclusion would
adversely affect the marketing of the securities by the Company
therein. Notwithstanding the foregoing provisions, the Company may
withdraw or delay or suffer a delay of any registration statement referred to in
this Section 13 without thereby incurring any liability to the Holder due to
such withdrawal or delay.
[Signature Page
Follows]
-7-
Common
Stock Warrant – SinoCoking
IN WITNESS WHEREOF, the Company has
caused this Warrant to Purchase Common Stock to be duly executed as of the
Issuance Date set out above.
SINOCOKING
COAL AND COKE CHEMICAL INDUSTRIES, INC.
|
|
By: ____________________________________
Jianhua Lv
Chief Executive Officer
-8-
Common
Stock Warrant – SinoCoking
EXHIBIT
A
EXERCISE
NOTICE
TO
BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE COMMON STOCK
OF
SINOCOKING
COAL AND COKE CHEMICAL INDUSTRIES, INC.
The undersigned holder hereby exercises
the right to purchase _________________ of the shares of Common Stock (“Warrant Shares”) of SinoCoking
Coal and Coke Chemical Industries, Inc., a Florida corporation (the “Company”), evidenced by the
attached Warrant to Purchase Common Stock (the “Warrant”). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Warrant.
1. Exercise
Price. The Holder hereby elects to exercise the Warrant to
purchase ________________ Warrant Shares for an aggregate cash exercise price of
$____________, and a copy of documents evidencing of the payment of such amount
to the Company is included with this Exercise notice.
2. Delivery of Warrant
Shares. The Company shall deliver the foregoing Warrant Shares
to the holder in accordance with the terms of the Warrant.
Date:
_______________ __, ______
Name
of Registered Holder
By:
Name:
Title:
-9-
Common
Stock Warrant – SinoCoking
ACKNOWLEDGMENT
The Company hereby acknowledges this
Exercise Notice and hereby directs [Insert Name of Transfer
Agent] to issue the above indicated number of shares of Common Stock in
accordance with the Transfer Agent Instructions dated _______________ from the
Company and acknowledged and agreed to by [Insert Name of Transfer
Agent].
SINOCOKING
COAL AND COKE CHEMICAL INDUSTRIES, INC.
|
|
By: ____________________________________
Name:
Title:
-10-
Common
Stock Warrant – SinoCoking