Exhibit 4.4
WARRANT AGREEMENT
Agreement made as of [_____], 2007 between China Pacific Acquisition Corp.,
a Delaware corporation, with offices at 00/X Xxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxxx,
Xxxx Xxxx, Xxxxx ("COMPANY"), and Continental Stock Transfer & Trust Company, a
New York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("WARRANT AGENT").
WHEREAS, the Company has determined to issue and deliver to its directors
(collectively, the "DIRECTORS") in a private placement Warrants (the "DIRECTORS
WARRANTS") to acquire an aggregate of 1,200,000 shares of common stock, par
value $0.0005 per share (the "COMMON STOCK"), each of such Directors Warrants
evidencing the right of the holder thereof to purchase one share of common stock
for $6.00, subject to adjustment as provided herein;
WHEREAS, the Company is engaged in a public offering ("PUBLIC OFFERING") of
Units ("UNITS") and, in connection therewith, has determined to issue and
deliver up to 8,625,000 Warrants (the "PUBLIC WARRANTS" and, together with the
Directors Warrants, the "WARRANTS") to the public investors, each of such Public
Warrants evidencing the right of the holder thereof to purchase one share of
Common Stock, for $6.00, subject to adjustment as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange Commission a
Registration Statement, No. [________] on Form S-1 ("REGISTRATION STATEMENT")
for the registration, under the Securities Act of 1933, as amended (the "ACT"),
of, among other securities, the Warrants and the Common Stock issuable upon
exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption exercise and cancellation
of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1. APPOINTMENT OF A WARRANT AGENT. The Company hereby appoints the Warrant
Agent to act as agent for the Company with respect to the Warrants, and the
Warrant Agent hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this Agreement.
2. WARRANTS.
2.1 FORM OF WARRANT. Each Warrant shall be issued in registered form
only, shall be in substantially the form of EXHIBIT A hereto, the provisions of
which are incorporated herein and shall be signed by, or bear the facsimile
signature of, the Chairman of the Board or President and Treasurer or Secretary
of the Company and shall bear a facsimile of the Company's seal. In the event
the person whose facsimile signature has been placed upon any Warrant shall have
ceased to serve in the capacity in which such person signed the Warrant before
such Warrant is issued, it may be issued with the same effect as if he or she
had not ceased to be such at the date of issuance.
2.2 EFFECT OF COUNTERSIGNATURE. Unless and until countersigned by
the Warrant Agent in accordance with this Agreement, a Warrant shall be invalid
and of no effect and may not be exercised by the holder thereof.
2.3 REGISTRATION.
2.3.1 WARRANT REGISTER. The Warrant Agent shall maintain books
("WARRANT REGISTER"), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2 REGISTERED HOLDER. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register ("REGISTERED HOLDER"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.3.3 DETACHABILITY OF WARRANTS. The securities comprising the
Units will begin separate trading on the 90th day after the date of the
Registration Statement unless the underwriters determine that an earlier date is
acceptable (the "DETACHMENT DATE"), subject in either case to filing by the
Company of a Current Report on Form 8-K with the Securities and Exchange
Commission containing an audited balance sheet reflecting the receipt by the
Company of the gross proceeds of the Public Offering and issuing a press release
announcing when such separate trading will begin.
2.3.4 DIRECTORS WARRANTS. The Directors Warrants shall have
the same terms and be in the same form as the Public Warrants except with
respect to the transferability of the Warrants as set forth in Section 5.1.2.
3. TERMS AND EXERCISE OF WARRANT.
3.1 WARRANT PRICE. Each Warrant shall, when countersigned by the
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Public Warrant and of this Warrant Agreement, to purchase from the
Company the number of shares of Common Stock stated therein, at the price of
$6.00 per whole share, subject to the adjustments provided in Section 4 hereof
and in the last sentence of this Section 3.1. The term "WARRANT PRICE" as used
in this Warrant Agreement refers to the price per whole share at which Common
Stock may be purchased at the time a Warrant is exercised. The Company in its
sole discretion may lower the Warrant Price at any time prior to the Expiration
Date for a period of not less than 10 business days; provided, that any such
reduction shall apply equally to all the Warrants.
3.2 DURATION OF WARRANTS. A 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, stock purchase, asset
acquisition or other similar business combination having collectively, a fair
market value (as calculated in accordance with the requirements set forth in the
Company's Certificate of Incorporation) of at least 80% of the Company's net
assets (excluding the underwriters' deferred discounts and commissions) at the
time of such acquisition ("BUSINESS COMBINATION") (as described more fully in
the Company's Registration Statement) and (ii) [_________], 2009 [ONE YEAR FROM
THE DATE OF THE PROSPECTUS], and terminating at 5:00 p.m., New York City time on
the earlier to occur of (a) [________], 2013 [FIVE YEARS FROM THE DATE OF THE
PROSPECTUS] or (b) 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 at the close of business on the Expiration Date. The Company in its
sole discretion may extend the duration of the Warrants by delaying the
Expiration Date; provided, however, that the Company will provide notice to
registered holders of the Warrants of such extension of not less than 20 days;
provided, further, that any such extension shall be identical in duration among
all of the Warrants. Should the Company wish to extend the Expiration Date of
the Warrants, the Company shall provide advance notice to the American Stock
Exchange as required by the American Stock Exchange.
3.3 EXERCISE OF WARRANTS.
3.3.1 PAYMENT. Subject to the provisions of the Warrant and
this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by
the registered holder thereof by surrendering it, at the office of the Warrant
Agent, or at the office of its successor as Warrant Agent, in the Borough of
Manhattan, City and State of New York, with the subscription form, as set forth
in the Warrant, duly executed, and by paying in full, in lawful money of the
United States, in cash, good certified check or good bank draft payable to the
order of the Company (or as otherwise agreed to by the Company) or by cashless
exercise (as set forth in the Warrant), the Warrant Price for each whole share
of Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2 ISSUANCE OF CERTIFICATES. As soon as practicable after
the exercise of any Warrant and the clearance of the funds in payment of the
Warrant Price (if applicable), the Company shall issue to the registered holder
of such Warrant a certificate or certificates for the number of full shares of
Common Stock to which he, she or it is entitled, registered in such name or
names as may be directed by him, her or it, and if such Warrant shall not have
been exercised in full, a new countersigned Warrant 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 Warrant and shall have no obligation to settle the Warrant
exercise unless a registration statement under the Act with respect to the
Common Stock is effective. In no event will the registered holder of the Warrant
be entitled to receive a net-cash settlement, securities or other consideration
in lieu of physical settlement in shares of Common Stock, regardless of whether
the Common Stock underlying the Warrants is registered pursuant to an effective
registration statement.
3.3.3. LIMITATIONS. Notwithstanding the foregoing, the Company
shall not be obligated to deliver any Shares pursuant to the exercise of a
Warrant and shall have no obligation to settle the Warrant exercise unless a
registration statement under the Act, with respect to the Shares is effective
and a current Prospectus (as defined below) is on file with the Commission. In
the event that a registration statement with respect to the Shares underlying a
Warrant is not effective under the Securities Act or a current Prospectus is not
on file with the Commission, the holder of such Warrant, including for the
avoidance of doubt, the Directors Warrants, shall not be entitled to exercise
such Warrant. Notwithstanding anything to the contrary in this Warrant
Agreement, under no circumstances will the Company be required to net cash
settle the Warrant exercise. Warrants may not be exercised by, or Shares issued
to, any registered holder in any state in which such exercise or issuance would
be unlawful. For the avoidance of doubt, as a result of this Section 3.3.3, any
or all of the Warrants may expire unexercised. In no event shall the registered
holder of a Warrant be entitled to receive any monetary damages if the Common
Stock underlying the Warrants have not been registered by the Company pursuant
to an effective registration statement or if a current prospectus is available
for delivery by the Warrant Agent, provided the Company has fulfilled its
obligation to use its best efforts to effect such registration and ensure a
current prospectus is available for delivery by the Warrant Agent. 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 Directors Warrants shall be
unregistered shares. In the event that a registration statement is not effective
for the exercised 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.
3.3.4 VALID ISSUANCE. All shares of Common Stock issued upon
the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.5 DATE OF ISSUANCE. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
4. ADJUSTMENTS.
4.1.1 STOCK DIVIDENDS; SPLIT-UPS. If after the date hereof, and
subject to the provisions of Section 4.6 below, the number of outstanding shares
of Common Stock is increased by a stock dividend payable in shares of Common
Stock, or by a split-up of shares of Common Stock, or other similar event, then,
on the effective date of such stock dividend, split-up or similar event, the
number of shares of Common Stock issuable on exercise of each Warrant shall be
increased in proportion to such increase in outstanding shares of Common Stock.
4.1.2 EXTRAORDINARY DIVIDEND. If the Company, at any time during the
Exercise Period, shall pay a dividend or make a distribution in cash, securities
or other assets to the holders of Common Stock (or other shares of the Company's
capital stock into which the Warrants are convertible), other than (a) as
described in Sections 4.1.1, 4.2 or 4.4, (b) regular quarterly or other periodic
dividends, (c) in connection with the conversion rights of the holders of Common
Stock upon consummation of the Company's initial Business Combination (as such
term is used in the Registration Statement) or (d) in connection with the
Company's liquidation and the distribution of its assets upon its failure to
consummate a Business Combination (any such non-excluded event being referred to
herein as an "EXTRAORDINARY DIVIDEND"), then the Warrant Price shall be
decreased, effective immediately after the effective date of such Extraordinary
Dividend, by the amount of cash and/or the fair market value (as determined by
the Company's Board of Directors, in good faith) of any securities or other
assets paid on each share of Common Stock in respect of such Extraordinary
Dividend.
4.2 AGGREGATION OF SHARES. If after the date hereof, and subject to
the provisions of Section 4.6, the number of outstanding shares of Common Stock
is decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common
Stock or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3 ADJUSTMENTS IN WARRANT PRICE. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4.1.1 and 4.2 above, the Warrant Price shall be adjusted (to
the nearest cent) by multiplying such Warrant Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number
of shares of Common Stock so purchasable immediately thereafter.
4.4 REPLACEMENT OF SECURITIES UPON REORGANIZATION, ETC. In case of
any reclassification or reorganization of the outstanding shares of Common Stock
(other than a change covered by Section 4.1.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 NOTICES OF CHANGES IN WARRANT. Upon every adjustment of the
Warrant Price or the number of shares issuable upon exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, 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 4.1.1, 4.1.2, 4.2, 4.3 or 4.4,
then, in any such event, the Company shall give written notice to the Warrant
holder, at the last address set forth for such holder in the warrant register,
of the record date or the effective date of the event. Failure to give such
notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6 NO FRACTIONAL SHARES. Notwithstanding any provision contained in
this Warrant Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company will elect, upon exercise, to either (i) round up to the nearest whole
number the number of shares of Common Stock to be issued to the holder or (ii)
pay out the fractional interest in cash.
4.7 FORM OF WARRANT. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement. However, the
Company may at any time in its sole discretion make any change in the form of
Warrant that the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or countersigned, whether
in exchange or substitution for an outstanding Warrant or otherwise, may be in
the form as so changed.
5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1 TRANSFER OF WARRANTS.
5.1.1 TRANSFER OF PUBLIC WARRANTS. Prior to the Detachment
Date, the Public Warrants may be transferred or exchanged only together with the
Unit in which such Public Warrant is included, and only for the purpose of
effecting, or in conjunction with, a transfer or exchange of such Unit.
Furthermore, each transfer of a Unit issued in the Public Offering shall operate
also to transfer the Warrants included in such Unit. From and after the
Detachment Date this Section 5.1 will have no further force and effect.
5.1.2. TRANSFER OF DIRECTORS WARRANTS. Prior to the completion
of a Business Combination, the Directors Warrants may not be transferred or sold
by the Directors other than to members of the Company's management team, but the
transferees receiving such Directors Warrants must first agree to be subject to
the same transfer and sale restrictions imposed on the Directors.
5.2 REGISTRATION OF TRANSFER. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be cancelled by the
Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request. Upon any such registration of
transfer, the Company shall execute, and the Warrant Agent shall
countersign and deliver, in the name of the designated transferee a new Warrant
Certificate or Warrant Certificates of any authorized denomination evidencing in
the aggregate a like number of unexercised Warrants.
5.2 PROCEDURE FOR SURRENDER OF WARRANTS. Warrants may be surrendered
to the Warrant Agent, together with a written request for exchange or transfer,
and thereupon the Warrant Agent shall issue in exchange therefor one or more new
Warrants as requested by the registered holder of the Warrants so surrendered,
representing an equal aggregate number of Warrants; provided, however, 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 has received an opinion of counsel for
the Company stating that such transfer may be made and indicating whether the
new Warrants must also bear a restrictive legend.
5.3 FRACTIONAL WARRANTS. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4 SERVICE CHARGES. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5 WARRANT EXECUTION AND COUNTERSIGNATURE. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms of
this Agreement, the Warrants required to be issued pursuant to the provisions of
this Section 5, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrants duly executed on behalf of the Company
for such purpose.
6. REDEMPTION.
6.1 REDEMPTION. Subject to Sections 6.4 and 6.5 hereof, not less
than all of the outstanding Warrants may be redeemed, at the option of the
Company, at any time after they become exercisable and prior to their
expiration, at the office of the Warrant Agent, upon the notice referred to in
Section 6.2., at the price of $.01 per Warrant ("REDEMPTION PRICE"), provided
that the last sales price of the Common Stock has been at least $11.50 per share
(subject to proportionate adjustment to reflect adjustment to the Warrant Price
as provided in Section 4.3), for any twenty (20) trading days within a thirty
(30) trading day period ending on the third business day prior to the date on
which notice of redemption is given.
6.2 DATE FIXED FOR, AND NOTICE OF, REDEMPTION. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption, which date shall be prior to the expiration of the Warrants
(the "REDEMPTION DATE"). Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than 30 days prior to the date
fixed for redemption to the registered holders of the Warrants to be redeemed at
their last addresses as they shall appear on the Warrant Register. Any notice
mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the registered holder received
such notice.
6.3 EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants may be
exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the time and date fixed for redemption. On and after the
Redemption Date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 OUTSTANDING WARRANTS ONLY. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption are met.
6.5 EXCLUSION OF DIRECTORS WARRANTS. The Directors Warrants shall
not be subject to redemption.
7. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
7.1 NO RIGHTS AS STOCKHOLDER. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter.
7.2 LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity or otherwise as they may in their discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination, tenor, and date as the
Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
7.3 RESERVATION OF COMMON STOCK. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 REGISTRATION OF COMMON STOCK. The Company agrees that prior to
the commencement of the Exercise Period, it shall use its best efforts to
prepare and file with the Securities and Exchange Commission (the "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 such
action as is necessary to qualify for sale, in those states in which the
Warrants were initially offered by the Company, the Common Stock issuable upon
exercise of the Warrants. In either case, the Company will use its best efforts
to cause the same to become effective on or prior to the commencement of the
Exercise Period and shall use its best efforts to maintain the effectiveness of
such registration statement and insure that a current Prospectus is on file with
the Commission until the expiration of the Warrants in accordance with the
provisions of this Agreement provided, however, that the Company shall not be
obligated to deliver Common Stock, and shall not have penalties nor be liable to
the Warrant holder for failure to deliver Common Stock pursuant to Section 3, if
a registration statement is not effective or a current Prospectus is not on file
with the Commission at the time of exercise of the Warrant by the holder. In no
event will the registered holder of a Warrant be entitled to receive a net-cash
settlement, shares of Common Stock or other consideration in lieu of physical
settlement in shares of Common Stock, regardless of whether the Company complies
with this Section 7.4.
7.5 DELIVERY OF PROSPECTUS OR NOTICE. Upon the exercise of any
Warrant, if the Company requests, the Warrant Agent shall deliver to the holder
of such Warrant, prior to or concurrently with the delivery of the Common Stock
issued upon such exercise, in accordance with the Company's request, either (i)
a prospectus relating to the Shares deliverable upon exercise of Warrants and
complying in all material respects with the Securities Act (the "PROSPECTUS") or
(ii) the notice referred to in Rule 173 under the Act.
8. CONCERNING THE WARRANT AGENT AND OTHER MATTERS.
8.1 PAYMENT OF TAXES. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay any transfer
taxes in respect of the Warrants or such shares.
8.2 RESIGNATION, CONSOLIDATION, OR MERGER OF WARRANT AGENT.
8.2.1 APPOINTMENT OF SUCCESSOR WARRANT AGENT. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after giving sixty
(60) days' notice in writing to the Company. If the office of the Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor warrant agent in place of the Warrant
Agent. If the Company shall fail to make such appointment within a period of
thirty (30) days after it has been notified in writing of such resignation or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for the
County of New York for the appointment of a successor warrant agent at the
Company's cost. Any successor warrant agent, whether appointed by the Company or
by such court, shall be a
corporation organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of Manhattan, City
and State of New York, and authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal or state
authority. After appointment, any successor warrant agent shall be vested with
all the authority, powers, rights, immunities, duties, and obligations of its
predecessor warrant agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor warrant agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such
successor warrant agent all the authority, powers, and rights of such
predecessor warrant agent hereunder; and upon request of any successor warrant
agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming
to such successor warrant agent all such authority, powers, rights, immunities,
duties, and obligations.
8.2.2 NOTICE OF SUCCESSOR WARRANT AGENT. In the event a
successor warrant agent shall be appointed, the Company shall give notice
thereof to the predecessor warrant agent and the transfer agent for the Common
Stock not later than the effective date of any such appointment.
8.2.3 MERGER OF CONSOLIDATION OF WARRANT AGENT. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party shall be the successor warrant agent
under this Agreement without any further act.
8.3 FEES AND EXPENSES OF WARRANT AGENT.
8.3.1 REMUNERATION. The Company agrees to pay the Warrant
Agent reasonable remuneration for its services as Warrant Agent hereunder and
will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2 FURTHER ASSURANCES. The Company agrees to perform,
execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further acts, instruments, and assurances
as may reasonably be required by the Warrant Agent for the carrying out or
performing of the provisions of this Agreement.
8.4 LIABILITY OF WARRANT AGENT.
8.4.1 RELIANCE ON COMPANY STATEMENT. Whenever in the
performance of its duties under this Warrant Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and
established by a statement signed by the President or Chairman of the Board of
the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon
such statement for any action taken or suffered in good faith by it pursuant to
the provisions of this Agreement.
8.4.2 INDEMNITY. The Warrant Agent shall be liable hereunder
only for its own negligence, willful misconduct or bad faith. The Company agrees
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3 EXCLUSIONS. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 ACCEPTANCE OF AGENCY. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
8.6 WAIVER. The Warrant Agent hereby waives any and all right,
title, interest or claim of any kind ("CLAIM") in or to any distribution of the
Trust Account (as defined in that certain Investment Management Trust Agreement,
dated as of the date hereof, by and between the Company and JPMorgan Chase Bank,
NA as trustee thereunder), and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account
for any reason whatsoever.
9. MISCELLANEOUS PROVISIONS.
9.1 SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2 NOTICES. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any
Warrant to or on the Company shall be sufficiently given when so delivered if by
hand or overnight delivery or if sent by certified mail or private courier
service within five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
China Pacific Acquisition Corp.
00/X Xxxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxx, Xxxxx
Attn: Dato' Sin Just Xxxx
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust
Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
with a copy in each case to:
----------------------------
----------------------------
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and
12
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9.3 APPLICABLE LAW. The validity, interpretation, and
performance of this Agreement and of the Warrants shall be governed in all
respects by the laws of the State of New York applicable to contracts formed and
to be formed entirely within the State of New York, without giving effect to
conflict of law provisions thereof to the extent such principles or rules would
require or permit the application of the 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 and
binding upon the Company in any action, proceeding or claim.
9.4 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing in
this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants, any right, remedy, or claim under or by reason of this
Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement 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 their successors and assigns and of
the registered holders of the Warrants.
9.5 EXAMINATION OF THE WARRANT AGREEMENT. A copy of this
Agreement shall be available at all reasonable times at the office of the
Warrant Agent in the Borough of Manhattan, City and State of New York, for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his
Warrant for inspection by it.
9.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
9.7 EFFECT OF HEADINGS. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
9.8 AMENDMENTS. This Agreement and the warrant certificate
issued hereunder may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase the
Warrant Price or shorten the Exercise Period, shall require the written consent
of the registered holders of a majority of the then outstanding Warrants and no
modification or amendment shall affect the Directors Warrants and the Public
Warrants differently from one another. Notwithstanding the foregoing, the
Company may lower the Warrant Price or extend the duration of the Exercise
Period in accordance with Sections 3.1 and 3.2, respectively, without such
consent.
* * *
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as of the day and year first above written.
Attest: CHINA PACIFIC ACQUISITION CORP.
By:
--------------------------------------- -----------------------------------
Name:
Title:
Attest: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By:
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Name: Xxxxxx Xxxxxx
Title: Chairman
