made as of _____________________, 2008 between New Asia Partners China I
Corporation, a Delaware corporation, with offices at 1401-02 China Insurance
Building, 166 Lu Jia Zui Dong Lu, Pudong, Shanghai, 200120 China (“Company”),
and Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 17 Battery Place, New York, New York 10004 (“Warrant
the Company has received binding commitments from New Asia Partners Limited,
Capital TEN Partners, LLC, Ladenburg Thalmann & Co. Inc. (“Ladenburg”)
Joseph & Co. Inc. (“Morgan Joseph” and, collectively, in their capacity
as holders of Insider Warrants “the Insiders” to purchase an
aggregate of 2,200,000 warrants (“Insider Warrants”) for $1.00 per Insider
the Company is engaged in a public offering (“Public Offering”) of Units and, in
connection therewith, has determined to issue and deliver up to (i) 5,750,000
Warrants to the public investors (collectively, “Public Warrants”), and (ii)
440,000 Warrants to Ladenburg and
Morgan Joseph (together with Ladenburg, the “Representatives”) or their
designees (“Representatives’ Warrants,” and collectively with the Insider
Warrants and the Public Warrants, the “Warrants”),
such 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
$5.00, subject to adjustment as described herein; and
the Company has filed with the Securities and Exchange Commission a Registration
Statement on Form S-1, No. 333-148612 (“Registration Statement”), for the
registration, under the Securities Act of 1933, as amended (“Act”) of, among
other securities, the Warrants and the Common Stock issuable upon exercise
the Warrants; and
the Company desires the Warrant Agent to act on behalf of the Company, and
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
the Company desires to provide for the form and provisions of the Warrants,
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
holders of the Warrants; and
all acts and things have been done and performed which are necessary to make
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
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
of Warrant Agent.
Company hereby appoints 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
Warrant shall be issued in registered form only, shall be in substantially
form of Exhibit A hereto, the provisions of which are incorporated herein and
signed by, or bear the facsimile signature of, the Chairman of the Board or
Chief Executive Officer and Treasurer or Secretary of the Company and shall
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
at the date of issuance. The warrant certificate for the Insider Warrants shall
bear the legend set forth in Exhibit B herein.
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
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
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
due presentment for registration of transfer of any Warrant, the Company and
Warrant Agent may deem and treat the person in whose name such Warrant shall
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
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.
of Warrants. The
securities comprising the Units will begin separate trading five business days
following the earlier to occur of expiration of the Representatives’
over-allotment option, their exercise in full or the announcement by the
Representatives of their intention not to exercise all or any portion of the
over-allotment option unless the Representatives inform the Company of its
decision to allow earlier separate trading, but in no event will the
Representatives allow separate trading of the securities comprising the Units
until the Company files a Current Report on Form 8-K which includes an audited
balance sheet reflecting the receipt by the Company of the gross proceeds of
Public Offering including the proceeds received by the Company from the exercise
of the Representatives’ over-allotment option, if the over-allotment option is
exercised prior to the filing of the Form 8-K.
Insider Warrants will be issued in the same form as the Public Warrants and
Representatives’ Warrants but they (i) will not be transferable or salable until
the later of ___________, 2009 or thirty (30) days after the date on which
Company completes a business combination,
(A) if the Insider is an entity, to such Insider’s members or owners in
proportion to their membership interest or upon its liquidation, (B) if the
Insider is an individual, by gift to a member of such Insider’s immediate family
or to a trust, the beneficiary of which is the Insider or a member of his or
immediate family, (C) by virtue of the laws of descent and distribution upon
death of an Insider, (D) pursuant to a qualified domestic relations order or
in the case of Ladenburg and Morgan Joseph, to their respective officers,
partners, employees or other affiliates; provided, however, that such transfers
may be implemented only upon the respective transferee’s written agreement to be
bound by the terms and conditions of this agreement and of the Insider Letter
signed by the undersigned, and (ii) will be exercisable on a cashless
basis and will not be redeemable by the Company if they are still held by the
Insiders or their affiliates or permitted transferees.
and Exercise of Warrants.
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
at the price of $5.00 per whole share, subject to the adjustments provided
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
its sole discretion may lower the Warrant Price at any time prior to the
Expiration Date for a period of not less than 10 business days; provided,
however, that any such reduction shall be identical in percentage terms among
all of the Warrants.
Warrant may be exercised only during the period (“Exercise Period”) commencing
on the later of (i) the consummation by the Company of a merger, capital stock
exchange, asset acquisition or other similar business combination (“Business
Combination”) (as described more fully in the Company’s Amended and Restated
Certificate of Incorporation) and (ii) __________, 2009, and terminating at
5:00 p.m., New York City time on the earlier to occur of (i) 2013 or (ii) the
date fixed for redemption of the Warrants as provided in Section 6 of this
Agreement (“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 under this Agreement shall cease
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
the Warrants of such extension of not less than 20 days prior to such
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 the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all applicable taxes
in connection with the exercise of the Warrant, as follows:
good certified check or good bank draft payable to the order of the Company
as otherwise agreed to by the Company); or
respect to any Insider Warrants, by surrendering such Insider Warrants for
number of shares of Common Stock equal to the quotient obtained by dividing
the product of the number of shares of Common Stock underlying the Warrants,
multiplied by the difference between the exercise price of the Warrants and
“Fair Market Value” (defined below) by (y) the Fair Market Value; provided,
however, that the Fair Market Value is greater than the exercise price of the
Warrants. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value”
shall mean the average reported last sale price of the Common Stock for the
trading days ending on the trading day prior to the date on which the Insider
Warrants are exercised.
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
Stock to which such holder is entitled, registered in such name or names as
be directed by him, her or it, and if such Warrant shall not have been exercised
in full, a new countersigned Warrant for the number of shares 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 Public Warrant or the Representatives’ Warrants and shall have no
obligation to settle the Warrant exercise unless a registration statement under
the Act with respect to the Common Stock to be issued upon exercise of such
Warrant is effective and a prospectus thereunder relating to such Common Stock
is current, subject to the Company’s satisfying its obligations under Section
7.4 to use its best efforts. In the event that a registration statement with
respect to the Common Stock underlying a Public Warrant or a Representatives’
Warrant is not effective under the Act, the holder of such Public Warrant or
Representatives’ Warrant shall not be entitled to exercise such Warrant and such
Warrant may have no value and expire worthless. In no event will the Company
required to net cash settle the Warrant exercise. Public Warrants and
Representatives’ Warrants may not be exercised by, or securities issued to, any
registered holder in any state in which such exercise would be unlawful. The
shares of Common Stock issuable upon exercise of Insider Warrants shall be
unregistered shares and certificates for such shares shall bear the legend
forth in Exhibit C herein. In the event that a registration statement is not
effective for the exercised Public Warrants and Representatives’ Warrants, the
purchaser of a Unit containing such Warrant, will have paid the full purchase
price for the Unit solely for the shares included in such Unit.
shares of Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
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
deemed to have become the holder of such shares at the close of business on
next succeeding date on which the stock transfer books are open.
Dividends - Split-Ups.
after the date hereof, and subject to the provisions of Section 4.6 below,
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
outstanding shares of Common Stock.
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
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
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
the Warrants immediately prior to such adjustment, and (y) the denominator
which shall be the number of shares of Common Stock so purchasable immediately
of Securities upon Reorganization, etc.
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
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 the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise
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
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
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
of Changes in Warrant.
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, 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 Sections
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
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.
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,
holder of any Warrant would be entitled, upon the exercise of such Warrant,
receive a fractional interest in a share, the Company shall, upon such exercise,
round up or down to the nearest whole number the number of the shares of Common
Stock to be issued to the Warrant holder.
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
sole discretion make any change in the form of Warrant that the Company may
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
outstanding Warrant or otherwise, may be in the form as so changed.
and Exchange of Warrants.
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
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
be delivered by the Warrant Agent to the Company from time to time upon
Insider Warrants may not be sold or transferred (except in certain cases) until
30 days after the Company consummates a Business Combination.
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
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, that in the event that 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
received an opinion of counsel for the Company stating that such transfer may
made and indicating whether the new Warrants must also bear a restrictive
Warrant Agent shall not be required to effect any registration of transfer
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
service charge shall be made for any exchange or registration of transfer of
Execution and Countersignature.
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
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.
to Section 6.4 hereof, the Public Warrants and Representatives’
may be redeemed, at the option of the Company in whole or in part, at any time
after they become exercisable and prior to their expiration, at the office
the Warrant Agent, upon the notice referred to in Section 6.2, at the price
$.01 per the Public Warrants and Representatives’
(“Redemption Price”), provided that the last sales price of the Common Stock has
been at least $11.50 per share, on each of twenty (20) trading days within
thirty (30) trading day period ending on the third business day prior to the
date on which notice of redemption is given. Notwithstanding anything to the
contrary contained herein, the Company shall not call the Warrants for
redemption unless there is an effective registration statement under the Act
relating to the shares of Common Stock issuable upon exercise of the
Warrants and Representatives’
Warrants and a current prospectus is available for use throughout the “30-day
redemption period” (defined below).
Fixed for, and Notice of Redemption.
event the Company shall elect to redeem all of the Public Warrants and
the Company shall fix a date for the redemption. Notice of redemption shall
mailed by first class mail, postage prepaid, by the Company not less than 30
days prior to the date fixed for redemption (“30-day redemption period”) to the
registered holders of the Public Warrants and Representatives’
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
After Notice of Redemption.
Public Warrants and Representatives’
may be exercised, for cash 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
holders of such Warrants shall have no further rights except to receive, upon
surrender of the Public Warrants and Representatives’
the Redemption Price.
of Certain Warrants.
Company understands that the redemption rights provided for by this Section
apply only to outstanding Public Warrants and Representatives’
To the extent a person holds rights to purchase such Warrants, such purchase
rights shall not be extinguished by redemption. However, once such purchase
rights are exercised, the Company may redeem the Public Warrants and
issued upon such exercise provided that the criteria for redemption is met.
provisions of this Section 6.4 may not be modified, amended or deleted without
the prior written consent of the Representatives.
Provisions Relating to Rights of Holders of Warrants.
Rights as Stockholder.
Warrant does not entitle the registered holder thereof to any of the rights
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
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
Stolen, Mutilated, Destroyed Warrants.
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
surrender thereof), issue a new Warrant of like denomination, tenor, and date
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
enforceable by anyone.
of Common Stock.
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
of Common Stock.
Company agrees that prior to the commencement of the Exercise Period, it shall
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, and it shall use its best efforts to take
action as is necessary to qualify for sale, in those states in which the Public
Warrants and Representatives’
were initially offered by the Company, the Common Stock issuable upon exercise
of the Public Warrants and Representatives’
In either case, the Company will use its best efforts to cause the same to
become effective and to maintain the effectiveness of such registration
statement until the expiration of the Public Warrants and Representatives’
in accordance with
provisions of this Agreement. The provisions of this Section 7.4 may not be
modified, amended or deleted without the prior written consent of the
the Warrant Agent and Other Matters.
Company will from time to time promptly pay all taxes and charges that may
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.
Consolidation, or Merger of Warrant Agent.
of Successor Warrant Agent.
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
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
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
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
the State of New York, in good standing and having its principal office in
Borough of Manhattan, City and State of New York, and authorized under such
to exercise corporate trust powers and subject to supervision or examination
federal or state authority. After appointment, any successor Warrant Agent
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.
of Successor Warrant Agent.
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
Common Stock not later than the effective date of any such
or Consolidation of Warrant Agent.
corporation into which the Warrant Agent may be merged or with which it may
consolidated or any corporation resulting from any merger or consolidation
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
and Expenses of Warrant Agent.
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.
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
of Warrant Agent.
on Company Statement.
in the performance of its duties under this Warrant Agreement, the Warrant
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
provisions of this Agreement.
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
save it harmless against any and all liabilities, including judgments, costs
reasonable counsel fees, for anything done or omitted by the Warrant Agent
the execution of this Agreement except as a result of the Warrant Agent’s
negligence, willful misconduct, or bad faith.
Warrant Agent shall have no responsibility with respect to the validity of
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
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
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
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
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
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
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.
notice, statement or demand authorized by this Warrant Agreement to be given
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
China Insurance Building
Jia Zui Dong Lu
Shanghai, 200120, China
Chief Executive Officer
notice, statement or demand authorized by this Agreement to be given or made
the holder of any Warrant or by the Company to or on the Warrant Agent shall
sufficiently given when so delivered if by hand or overnight delivery or if
by certified mail or private courier service within five days after deposit
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Stock Transfer & Trust Company
copy in each case to:
Robert J. Mittman, Esq.
New York 10174
David Alan Miller, Esq.
Thalmann & Co. Inc.
Joseph & Co. Inc.
New York 10020
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 conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. 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
binding upon the Company in any action, proceeding or claim.
Having Rights under this Agreement.
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 6.4, 7.4 and 9.2
hereof, Ladenburg or Morgan Joseph, 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 third
party beneficiaries of this Agreement with respect to Sections 6.4, 7.4 and
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
7.4 and 9.2 hereof) and their successors and assigns and of the registered
holders of the Warrants.
of the Warrant Agreement.
of this Agreement shall be available at all reasonable times at the office
the Warrant Agent in the Borough of Manhattan, City and State of New York,
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
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
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
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
parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase
Warrant Price or shorten the Exercise Period, shall require the written consent
of the registered holders of a majority of the then outstanding Warrants.
Notwithstanding the foregoing, the Company may lower the Warrant Price (provided
that any such price reduction shall be in effect for at least ten (10) business
days) or extend the duration of the Exercise Period pursuant to Sections 3.1
3.2, respectively, without the consent of the registered holders.
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
of the day and year first above written.
ASIA PARTNERS CHINA I
STOCK TRANSFER &
for Insider Warrants
SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING THE SHARES OF COMMON
OF THE COMPANY ISSUABLE UPON EXERCISE OF SUCH SECURITIES) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS
for Common Stock Issuable Upon Exercise of Insider
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES LAWS, AND MAY NOT
OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS
AN EXEMPTION FROM REGISTRATION IS AVAILABLE.