WARRANT TO PURCHASE SHARES OF COMMON STOCK of CHINA MEDIAEXPRESS HOLDINGS, INC. Void after January 27, 2015
EXHIBIT
D
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE WARRANT UNDER SUCH ACT AND APPLICABLE LAWS OR SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
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No.
W - 1
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Warrant
to Purchase 1,545,455 Shares of
Common
Stock (subject to adjustment)
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WARRANT
TO PURCHASE SHARES OF COMMON STOCK
of
CHINA
MEDIAEXPRESS HOLDINGS, INC.
Void
after January 27, 2015
This
certifies that, for value received, Starr Investments Cayman II, Inc., or its
registered assigns (“Holder”) is entitled,
subject to the terms set forth below, to purchase from China MediaExpress
Holdings, Inc., a Delaware corporation (the “Company”), 1,545,455
shares (the “Warrant
Shares”) of the common stock, par value US$0.001 per share, of the
Company (the “Common
Stock”) as constituted on the date hereof (the “Warrant Issue Date”),
upon surrender hereof, at the principal office of the Company referred to below,
with the subscription form attached hereto duly executed, and simultaneous
payment therefor in lawful money of the United States or otherwise as
hereinafter provided, at the Warrant Exercise Price as set forth in Section 1.1
below. The number, character and Warrant Exercise Price of such shares of common
stock are subject to adjustment as provided below. The term “Warrant” as used
herein shall include this Warrant, and any warrants delivered in substitution or
exchange therefor as provided herein. This Warrant is issued in
connection with the transactions described in Section 2 of that certain
Securities Purchase Agreement between the Company, the Investor (as defined
therein) and the other parties thereto as described therein, dated as of January
12, 2010, as the same may from time to time be amended, modified or supplemented
(the “Purchase
Agreement”). The holder of this Warrant is subject to certain
restrictions set forth in the Purchase Agreement and shall be entitled to
certain rights and privileges set forth in the Purchase
Agreement. This Warrant evidences all of the Warrants referred to as
the “Purchased Warrants” in the Purchase Agreement.
All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Purchase Agreement.
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1.
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TERMS
AND EXERCISE OF WARRANT.
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1.1 Exercise
Price. The exercise price at which this Warrant may be exercised
shall be US$6.47 per Common Share (the “Warrant Exercise
Price”), subject to the adjustments provided in Section 2 and in the last
sentence of this Section 1.1. The Company
in
its sole discretion may lower the Warrant Exercise Price at any time prior to
the Expiration Date.
1.2 Duration
of Warrants. Except as set forth in this Section 1.2, this Warrant
may be exercised, in whole or in part, during the period (“Exercise Period”)
commencing on the Warrant Issue Date, and terminating at 5:00 p.m., New York
city time on the earlier to occur of (a) the date five (5) years after the
Warrant Issue Date or (b) the date fixed for redemption of the Warrants as
provided in Section 4 of this Agreement (“Expiration Date”).
Each Warrant not exercised on or before the Expiration Date shall become void,
and all rights in respect thereof shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the
duration of the Warrants by delaying the Expiration Date; provided, however,
that any extension of the duration of the Warrants must apply equally to all of
the Warrants.
1.3 Exercise
of Warrants
1.3.1 Payment. The
purchase rights represented by this Warrant may be exercised in full or in part
at any time and from time to time, prior to the Expiration Date by the Holder by
the surrender of this Warrant and the Notice of Exercise annexed hereto as
Exhibit A duly completed and executed on behalf of the Holder, at the
headquarters of the Company (as set forth in the notice provisions hereof), upon
payment in full (i) in cash or by check acceptable to the Company, (ii) by
cancellation by the Holder of indebtedness or other obligations of the Company
to the Holder, or (iii) by a combination of (i) and (ii), of the Warrant
Exercise Price for each whole share of Common Stock as to which the Warrant is
exercised.
1.3.2 Issuance
of Certificates. This Warrant shall be exercisable, at the election
of the holders thereof, either in full or in part from time to time. As soon as
practicable, and in any event within five (5) days after the exercise of this
Warrant and the clearance of the funds in payment of the Warrant Exercise Price,
the Company shall issue to the registered holder of this Warrant a certificate
or certificates for the number of full shares of Common Stock to which he is
entitled, registered in such name or names as may be directed by him, her or it,
and if this Warrant shall not have been exercised in full, a new countersigned
Warrant for the number of shares as to which this Warrant shall not have been
exercised.
1.4 Valid
Issuance. The Company covenants that all shares of Common Stock
issued upon the proper exercise of this Warrant shall be (i) duly authorized,
validly issued and fully paid and nonassessable, (ii) shall rank pari passu with
the other shares of Common Stock outstanding from time to time and (iii) shall
be approved for listing on the principal national securities exchange on which
Common Stock is listed or admitted to trading. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
1.5 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 Exercise 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.
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2.
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ADJUSTMENTS.
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2.1 Stock
Dividends — Split-Ups. If after the date hereof, and subject to the
provisions of Section 2.6 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 this Warrant shall be increased
in proportion to such increase in outstanding shares of Common
Stock.
2.2 Extraordinary
Dividend. If the Company, at any time while this Warrant is
outstanding and unexpired, shall pay a dividend or make a distribution in cash,
securities, or other assets to the holders of Common Stock (or shares of the
Company’s Capital Stock into which this Warrant is convertible), then upon the
exercise of this Warrant, the registered holder shall be entitled to
either:
(i) a
proportionate share of any such dividend as if the shares of Common Stock
purchased upon exercise hereof by such registered holder had been purchased and
outstanding on the record date fixed for the determination of the holders of
Common Stock entitled to receive such dividend; or
(ii) an
adjustment of the Warrant Exercise Price in accordance with the formula as set
forth below:
| E'= |
E
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X
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M
- F
|
|
|
|
M
|
|
where:
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E'
|
=
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the
adjusted Warrant Exercise Price.
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|
|
E
|
=
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the
current Warrant Exercise Price.
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|
|
M
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=
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the
volume-weighted average closing price of Common Stock for the thirty (30)
Trading Days immediately prior to the record
date
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|
F
|
=
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the
fair market value on the record date of the assets, securities, rights or
warrants applicable to one share of Common Stock. The board of
directors of the Company shall determine the fair market value in good
faith.
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The
adjustment shall be made successively whenever any such distribution is made and
shall become effective immediately after the record date for the determination
of the holders of Common Stock entitled to receive the
distribution.
2.3 Aggregation
of Shares. If after the date hereof, and subject to the provisions of
Section 2.6, 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 this Warrant
shall be decreased in proportion to such decrease in outstanding shares of
Common Stock.
2.4 Adjustments
in Exercise Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted, as provided in
Section 2.1 and 2.3 above, the Warrant Exercise Price shall be adjusted (to the
nearest cent) by multiplying such Warrant Exercise 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.
2.5 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 2.1 or 2.3 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 holder shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in this
Warrant 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 this Warrant immediately prior to such event; and
if any reclassification also results in a change in shares of Common Stock
covered by Section 2.1 or 2.3, then such adjustment shall be made pursuant to
Sections 2.1, 2.3 and this Section 2.5. The provisions of this Section 2.5 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
2.6 Notices
of Changes in Warrant. Upon every adjustment of the Warrant Exercise
Price or the number of shares issuable upon exercise of a Warrant, the Company
shall give written notice thereof to the Holder, which notice shall state the
Warrant Exercise 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 2.1, 2.2, 2.3 or 2.5, then, in any
such event, the Company shall give written notice to the 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.
2.7 No
Fractional Shares. Notwithstanding any provision contained in this
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of this Warrant. If, by reason of any adjustment made pursuant to this
Section 2, the holder of this Warrant would be entitled, upon the exercise of
this Warrant, to receive a fractional interest in a share, the Company shall,
upon such exercise, round up to the nearest whole number the number of the
shares of Common Stock to be issued to the Warrant holder.
2.8 Form
of Warrant. The form of Warrant need not be changed because of any
adjustment pursuant to this Section 2, and Warrant issued after such adjustment
may state the same Warrant Exercise Price and the same number of shares as is
stated in the Warrant 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.
2.9 Other
Dilutive Events. In case any event shall occur as to which the
provisions of this Section 2 are not strictly applicable but the failure to make
any adjustment would not fairly protect the purchase rights represented by the
Warrants in accordance with the essential intent and principles of such
provisions, then, in each such case, the Company shall make a good faith
adjustment to the number of shares of Common Stock issuable on exercise of each
Warrant in accordance with the intent of this Section 2 and, upon the written
request of the registered holders of a majority in interest of the Warrants,
shall appoint a firm of independent certified public accountants of recognized
national standing (which may be the regular auditors of the Company), which
shall give its opinion upon the adjustment, if any, on a basis consistent with
the essential intent and principles established in this Section 2, necessary to
preserve, without dilution, the purchase rights represented by these
Warrants. Upon receipt of such opinion, the Company shall promptly
mail a copy thereof to the registered holder of each Warrant and shall make the
adjustments described therein.
2.10 No
Impairment. The Company will not, by any voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 2 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the registered holders of the Warrants against
impairment.
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3.
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TRANSFER
AND EXCHANGE OF WARRANTS.
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3.1 Warrant
Register. The Company will maintain a register (the “Warrant Register”)
containing the names and addresses of the Holder or Holders. Any Holder of this
Warrant or any portion thereof may change his or her address as shown on the
Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to
be given to the Holder may be delivered or given by mail to such Holder as shown
on the Warrant Register and at the address shown on the Warrant
Register. Until this Warrant is transferred on the Warrant Register
of the Company, the Company may treat the Holder as shown on the Warrant
Register as the absolute owner of this Warrant for all purposes, notwithstanding
any notice to the contrary.
3.2 Warrant
Agent. The Company may, by written notice to the Holder, appoint an
agent for the purpose of maintaining the Warrant Register referred to in Section
3.1 above, issuing the Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging this Warrant, replacing this Warrant, or
any or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or replacement, as the case may be, shall be made at the office of
such agent.
3.3 Transferability
and Nonnegotiability of Warrant. This Warrant shall be freely
transferable. This Warrant may not be transferred or assigned in whole or in
part without compliance with all applicable federal and state securities laws by
the transferor and the transferee. Subject to the provisions of this Warrant
with respect to compliance with the Securities Act of 1933, as amended (the
“Act”), title
to this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto as Exhibit B) and delivery in the same manner as
a negotiable instrument transferable by endorsement and delivery.
3.4 Exchange
of Warrant upon a Transfer. On surrender of this Warrant for
exchange, properly endorsed on the Assignment Form and subject to the provisions
of this Warrant with respect to compliance with the Act and with the limitations
on assignments and transfers contained in this Section 3, the Company at its
expense shall issue to or on the order of the Holder a new warrant or warrants
of like tenor, in the name of the Holder or as the Holder may direct, for the
number of shares issuable upon exercise hereof.
3.5 Compliance
with Securities Laws.
3.5.1 The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the shares of Common Stock to be issued upon exercise hereof or conversion
thereof are being acquired solely for the Holder’s own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of Common Stock
to be issued upon exercise hereof or conversion thereof except under
circumstances that will not result in a violation of the Act or any state
securities laws. Upon exercise of this Warrant, the Holder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company, that
the shares of Common Stock so purchased are being acquired solely for
the
▇▇▇▇▇▇’s
own account and not as a nominee for any other party, for investment; and not
with a view toward distribution or resale.
3.5.2 This
Warrant and all shares of Common Stock issued upon exercise hereof or conversion
thereof shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state securities
laws):
THE
SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS. SUCH SECURITIES AND ANY SECURITIES ISSUED
HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND APPLICABLE
LAWS. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE
COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
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4.
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REDEMPTION.
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4.1 Redemption. Subject
to Sections 5.4 and 5.5 hereof, not less than all of the outstanding Warrants
may be redeemed, at the option of the Company, at any time, at the office of the
Warrant Agent, upon the notice referred to in Section 4.2 hereof at a redemption
price of $.01 per Warrant (the “Redemption Price”),
provided that the last sales price of Common Stock has been at least $14 per
share (the “Trigger
Price”), for any twenty (20) consecutive 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; and provided, further, that there is an
effective registration statement with respect to the Common Stock to enable the
exercise of the Warrant during the Exercise Period as set forth in Section 1.2
hereof. In the event of any adjustment to the Warrant Exercise Price
or the number of shares of Common Stock issuable on exercise of each Warrant as
provided in Section 5, a proportional adjustment shall be made to the Trigger
Price.
4.2 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. Notice of redemption shall be mailed by first class mail, postage
prepaid, by the Company not less than sixty (60) 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.
4.3 Exercise
after Notice of Redemption. The Warrants may be exercised in
accordance with Section 1 of this Agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 4.2 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 Warrant,
the Redemption Price.
4.4 Outstanding
Warrants only; Registration or Qualification of Common Stock. The
Company understands that the redemption rights provided for by this Section 4
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 criterion for redemption is
met. In the event that the common stock issuable upon exercise of the Warrants
has not been registered or qualified or deemed to be exempt under the securities
laws of the state of residence of the holder of the Warrants, the Company will
not have the right to redeem the Warrants.
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5.
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OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANTS.
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5.1 No
Rights as Stockholder. Subject to Section 2 and 4.3 hereof, a Warrant
does not entitle the registered holder thereof to any of the rights of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
5.2 Lost,
Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost,
stolen, mutilated, or destroyed, the Company shall, at the request of the
Holder, forthwith 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.
5.3 Reservation
of Common Stock. The Company shall at all times reserve and keep
available, free and clear of all liens, security interests, charges and other
encumbrances or restrictions on sale, free from preemptive rights, a number of
its authorized but unissued shares of Common Stock that will be sufficient to
satisfy its obligation to issue shares upon exercise of all outstanding Warrants
and, from time to time, will take all steps necessary to amend its Certificate
of Incorporation to provide sufficient reserves of shares of Common Stock
issuable upon exercise of the Warrants.
5.4 Registration
of Common Stock. Upon exercise of this Warrant, the Holder shall have
and be entitled to exercise, the rights of registration granted under the
Registration Rights Agreement with respect to the shares of common stock
issuable upon exercise of this Warrant).
5.5 Payment
of Taxes. The Company will from time to time promptly pay all taxes and charges
that may be attributable to the issuance and registration of shares of Common
Stock upon the exercise of Warrants.
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6.
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MISCELLANEOUS
PROVISIONS.
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6.1 Successors. All
the covenants and provisions of this Warrant by or for the benefit of the
Company or the Holder shall bind and inure to the benefit of their respective
successors and assigns.
6.2 Notices.
6.2.1 Whenever
the Warrant Exercise Price or number of shares purchasable hereunder shall be
adjusted pursuant to Section 2 hereof, the Company shall issue a
certificate signed by its Chief Financial Officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Warrant Exercise Price
and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
6.2.2 In
case:
6.2.2.1 of
the Company taking a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend or other distribution, or any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right, or
6.2.2.2 of
any capital reorganization of the Company, any reclassification of the capital
stock of the Company, any consolidation or merger of the Company with or into
another corporation, or any conveyance of all or substantially all of the assets
of the Company to another corporation, or
6.2.2.3 of
any voluntary dissolution, liquidation or winding-up of the
Company,
then,
and in each such case, the Company will mail or cause to be mailed to the Holder
or Holders a notice specifying, as the case may be, (A) the date on which a
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record-of Common
Stock (or such stock or securities at the time receivable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities)
for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least 15 days prior to the date
therein specified.
6.2.3 All
such notices, advices and communications shall be deemed to have been received
(i) in the case of personal or overnight delivery, on the date of such delivery
or (ii) if sent by certified mail or private courier service within five days
after deposit of such notice, postage prepaid, in each case, addressed as
follows.
If
to the Company:
China
MediaExpress Holdings, Inc
Room
2805
Central
Plaza
Wanchai,
Hong Kong
Attention:
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇
Facsimile:
▇▇▇▇.▇▇▇▇.▇▇▇▇
with
a copy to:
Loeb
& Loeb LLP
▇▇
▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
If
to the Holder:
Starr
Investments Cayman II, Inc.
Bermuda
Commercial Bank Building, 5th Floor
▇▇
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇ 11
Bermuda
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
With
a copy to:
Starr
Investments Cayman II, Inc.
c/o
Beijing ▇.▇. ▇▇▇▇▇ Investment Advisors Limited Shanghai Branch
Suite
4609-▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
Shanghai
200040 People’s Republic of China
Attention:
▇▇▇▇ ▇▇▇ / ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile:
+8621.6288.9773
with
a copy to:
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
30th
Floor, Tower 2, China World Trade Centre
▇▇.
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Beijing
100004 People’s Republic of China
Attention:
▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile: +8610.6535.5577
6.3 Applicable
Law. The validity, interpretation, and performance of this Warrant
shall be governed in all respects by the laws of the State of New York, without
giving effect to the conflicts of law principle thereof. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Warrant shall be brought and enforced in the courts
of the State of New York or the United States District Court for the Southern
District of New York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The Company hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenience forum.
Any such process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
6.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
6.4 Amendment.
6.4.1 Any
term of this Warrant may be amended only with the written consent of the Company
and the Holder. Any amendment effected in accordance with this
Section 6.4 shall be binding upon such Holder, each future holder of the
Warrants, and the Company.
6.4.2 No
waivers of, or exceptions to, any term, condition or provision of this Warrant,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
6.5 Effect
of Headings. The Section headings herein are for convenience only and
are not part of this Agreement and shall not affect the interpretation
thereof.
6.6 Withholding
Rights. Notwithstanding anything to the contrary contained in this
Warrant, the Company shall be entitled to deduct and withhold in respect of any
amounts paid or deemed to be paid by the Company under this Warrant, such
amounts as the Company reasonably determines are required to be deducted and
withheld under the Code or any provision of state, local, provincial or foreign
tax law; provided that the Person with respect to whom such deduction or
withholding would occur shall be entitled to provide the Company with such forms
or other documents as may be required in order to claim a reduction of any such
deduction or withholding under the applicable tax law. To the extent
that any such amounts are so withheld, all appropriate and available evidence of
such deduction and withholding, including any receipts or forms required in
order for the Person
with
respect to whom such deduction and withholding occurred to establish the
deduction and withholding and payment to the appropriate taxing authority as
being for its account with the appropriate taxing authority, shall be delivered
to the Person with respect to whom such deduction and withholding has occurred,
and such withheld amounts shall be treated for all purposes as having been
delivered and paid to the Person otherwise entitled to the amounts in respect of
which such deduction and withholding was made. Notwithstanding the
foregoing, the Company, at its option, may require any such amounts required to
be deducted and withheld to be reimbursed in cash to the Company by such Person
prior to the time when the amounts subject to any such deduction or withholding
are paid or are considered to be paid by the Company under the applicable tax
law, in which case any such reimbursements received by the Company (net of any
Taxes payable by the Company on such reimbursements) shall not be deducted and
withheld from any such payments or deemed payments.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, China MediaExpress Holdings, Inc. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: January
28, 2010
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CHINA
MEDIAEXPRESS HOLDINGS, INC.
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By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇
▇▇▇▇▇
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|||||
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Title:
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|||||
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STARR
INVESTMENTS CAYMAN II, INC.
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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||||
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Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
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|||||
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Title:
Director
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|||||
[Signature Page to
Warrant]
EXHIBIT
A
NOTICE
OF EXERCISE
To: China
MediaExpress Holdings, Inc.
|
1.
|
The
undersigned hereby (A) elects to purchase ______ shares of Common Stock of
China MediaExpress Holdings, Inc, pursuant to the provisions of Section
1.3 of this Warrant, and tenders herewith payment of the purchase price
for such shares in full, and/or (B) elects to exercise this Warrant for
the purchase of _______ shares of Common Stock, by a cancellation of
indebtedness or other obligations pursuant to the provisions of Section
1.3 of this Warrant.
|
|
2.
|
In
exercising this Warrant, the undersigned hereby confirms and acknowledges
that the shares of Common Stock are being acquired solely for the account
of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell or otherwise
dispose of any such shares of Common Stock except under circumstances that
will not result in a violation of the Securities Act of 1933, as amended,
or any applicable state securities
laws.
|
|
3.
|
Please
issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
|
|
(Name)
|
|
4.
|
Please
issue a new Warrant for the unexercised portion of this Warrant in the
name of the undersigned or in such other name as is specified
below:
|
|
Name:
|
EXHIBIT
B
Date:
ASSIGNMENT
FORM
FOR
VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells,
assigns and transfers unto the Assignee named below all of the rights of the
undersigned under the within Warrant, with respect to the number of shares of
Common Stock set forth below:
|
Name
of Assignee
|
Address
|
No.
of Shares
|
and
does hereby irrevocably constitute and appoint _____________ Attorney to make
such transfer on the books of China MediaExpress Holdings, Inc., maintained for
the purpose, with full power of substitution in the premises.
The
undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Name:
Dated: