WEIKANG BIO-TECHNOLOGY GROUP COMPANY, INC. WARRANT
NEITHER
THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC.
WARRANT
|
Warrant
No. [WW-A-00__]
|
Dated:
August 11, 2009
|
WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC., a Nevada corporation (the "Company"), hereby
certifies that, for value received, ARC China, Inc., a Shanghai corporation, or
its registered assigns (the "Holder"), is entitled
to purchase from the Company up to a total of 2,384,438 shares of common stock,
par value $0.00001 per share (the "Common Stock"), of
the Company (each such share, a "Warrant Share" and
all such shares, the "Warrant Shares") at
an exercise price equal to $2.75 per share (as adjusted from time to time as
provided in Section
9, the "Exercise Price"), at
any time and from time to time after the date hereof through and including the
three-year anniversary of the date hereof (the "Expiration Date"),
and subject to the terms and conditions set forth herein. This Warrant (this
"Warrant") is
issued pursuant to the Securities Purchase Agreement dated as of the date hereof
by and among the Company, the Holder, and Corporate Stock Transfer, Inc., as
escrow agent (the "Purchase
Agreements").
1. Definitions. In
addition to the terms defined elsewhere in this Warrant, capitalized terms that
are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement.
2. Registration of the Warrant
Shares. The Company shall register the Warrant Shares pursuant to the
terms of the Registration Rights Agreement of even date herewith between the
Company and the Holder. The Company may deem and treat the registered Holder of
this Warrant as the absolute owner hereof for the purpose of any exercise hereof
or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
3. Registration of
Transfers. The Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the Form
of Assignment attached hereto duly completed and signed, to the Company’s
transfer agent or to the Company at its address specified herein. Upon any such
registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of the Holder
of a Warrant.
4. Exercise and Duration of
Warrants.
(a) Exercise. This
Warrant shall be exercisable by the registered Holder at any time and from time
to time on or after the date hereof to and including the Expiration Date. At
5:00 P.M., Los Angeles, California time on the Expiration Date, the portion of
this Warrant not exercised prior thereto shall be and become void and of no
value.
(b) Procedures for
Exercise. The Holder may exercise this Warrant by delivering to the
Company (i) an exercise notice, in the form attached hereto (the "Exercise Notice"),
appropriately completed and duly signed, and (ii) payment of the Exercise Price
for the number of Warrant Shares as to which this Warrant is being exercised
(which may take the form of a "cashless exercise" if so indicated in the
Exercise Notice and if a "cashless exercise" may occur at such time pursuant to
Section 10 below), and the date such items are delivered to the Company (as
determined in accordance with the notice provisions hereof) is an "Exercise Date." The
Holder shall not be required to deliver the original Warrant in order to effect
an exercise hereunder. Upon the execution and delivery of the Exercise Notice,
the Company shall issue a New Warrant to the Holder evidencing the right to
purchase the remaining number of Warrant Shares.
5. Delivery of Warrant
Shares.
(a) Upon
exercise of this Warrant, the Company shall promptly (but in no event later than
three business days after the Exercise Date) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the Warrant Shares
issuable upon such exercise, free of restrictive legends unless a registration
statement covering the resale of the Warrant Shares and naming the Holder as a
selling stockholder thereunder is not then effective and the Warrant Shares are
not freely transferable without volume restrictions pursuant to Rule 144 under
the Securities Act. The Holder, or any Person so designated by the Holder to
receive Warrant Shares, shall be deemed to have become the holder of record of
such Warrant Shares as of the Exercise Date. The Company shall, upon request of
the Holder, use its best efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions.
(b) This
Warrant is exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this Warrant
following one or more partial exercises, the Company shall issue or cause to be
issued, at its expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
2
(c) The
Company's obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action
or inaction by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the Holder or any
other Person of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other Person, and irrespective of any
other circumstance which might otherwise limit such obligation of the Company to
the Holder in connection with the issuance of Warrant Shares. Nothing herein
shall limit the Holder's right to pursue any other remedies available to it
hereunder, at law or in equity, including, without limitation, a decree of
specific performance or injunctive relief with respect to the Company's failure
to timely deliver certificates representing shares of Common Stock upon exercise
of the Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder
for any issue or transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such certificates, all
of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for
Warrant Shares or Warrants in a name other than that of the Holder or an
Affiliate thereof. The Holder shall be responsible for all other tax liability
that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
7. Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and
upon cancellation hereof, or in lieu of and substitution for this Warrant, a New
Warrant, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable bond or
indemnity, if requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may
prescribe.
8. Reservation of Warrant
Shares. The Company covenants that it will at all times reserve and keep
available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other contingent purchase rights of
persons other than the Holder (taking into account the adjustments and
restrictions of Section 9). The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable. The Company will take all such actions as may be necessary to
assure that such shares of Common Stock may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of any
securities exchange or automated quotation system upon which the Common Stock
may be listed.
9. Certain Adjustments.
The Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9.
3
(a) Adjustments to the Exercise
Price.
(i)
If, at any time or from time to time after the date hereof, the Company
shall issue any Additional Stock (as defined in Section 9(a)(vi) below) without consideration or for
consideration per share less than the Exercise Price in effect immediately prior
to the issuance of such Additional Stock, such Exercise Price in effect
immediately prior to such issuance shall (except as otherwise provided in this
Section 9(a)) be adjusted to the price per share at which such Additional Stock
was issued (or if such Additional Stock was issued for no consideration the
price shall be adjusted to $.01).
(ii)
No adjustment of the Exercise Price for any Warrant Share shall be made in an
amount less than one cent per share; provided that any adjustments which are not
required to be made by reason of this sentence shall be carried forward and
shall be taken into account in any subsequent adjustment made prior to three
years from the date of the event giving rise to the adjustment being carried
forward. Except to the limited extent provided for in Sections 9(a)(v)(C),
9(a)(v)(D) and 9(a)(v)(E) no adjustment of such Exercise Price pursuant to
this Section
9(a) shall have the effect of
increasing the Exercise Price above the Exercise Price in effect immediately
prior to such adjustment.
(iii)
In the case of the issuance of Additional Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Company for any underwriting or otherwise in connection with
the issuance and sale thereof.
(iv)
In the case of the issuance of the Additional Stock for a consideration in whole
or in part other than cash, the consideration other than cash shall be deemed to
be the fair value thereof as determined by the Board of Directors of the Company
irrespective of any accounting treatment.
(v)
In the case of the issuance of options to purchase or rights to subscribe for
Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this Section
9(a):
(A) The
aggregate number of shares of Common Stock deliverable upon exercise (assuming
the satisfaction of any conditions to exercisability, including but not limited
to the passage of time, but without taking into account potential antidilution
adjustments) of such options to purchase or rights to subscribe for Common Stock
shall be deemed to have been issued and outstanding at the time such options or
rights were issued and for a consideration equal to the consideration
(determined in the manner provided in Sections
9(a)(iii) and 9(a)(iv)), if any,
received by the Company upon the issuance of such options or rights plus the
minimum exercise price provided in such options or rights (without taking into
account potential antidilution adjustments) for the Common Stock covered
thereby.
4
(B) The
aggregate maximum number of shares of Common Stock deliverable upon conversion
of or in exchange (assuming the satisfaction of any conditions to convertibility
or exchangeability, including but not limited to the passage of time, but
without taking into account potential antidilution adjustments) for any such
convertible or exchangeable securities or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities
and subsequent conversion or exchange thereof shall be deemed to have been
issued and outstanding at the time such securities were issued or such options
or rights were issued and for a consideration equal to the consideration, if
any, received by the Company for any such securities and related options or
rights (excluding any cash received or account of accrued interest or accrued
dividends), plus the minimum additional consideration, if any, to be received by
the Company (without taking into account potential antidilution adjustments)
upon the conversion or exchange of such securities or the exercise of any
related options or rights (the consideration in each case to be determined in
the manner provided in Sections
9(a)(iii) and 9(a)(iv)).
(C) In
the event of any change in the number of shares of Common Stock deliverable or
in the consideration payable to the Company upon exercise of such options or
rights or upon conversion of or in exchange for such convertible or exchangeable
securities, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Exercise Price, to the extent in any way
affected by or computed using such options, rights or securities, shall be
recomputed to reflect such change, but no further adjustment shall be made for
the actual issuance of Common Stock or any payment of such consideration upon
the exercise of any such options or rights or the conversion or exchange of such
securities.
(D) Upon
the expiration of any such options or rights, the termination of any such rights
to convert or exchange or the expiration of any options or rights related to
such convertible or exchangeable securities, the Exercise Price, to the extent
in any way affected by or computed using such options, rights or securities or
options or rights related to such securities, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and convertible or
exchangeable securities which remain in effect) actually issued upon the
exercise of such options or rights, upon the conversion or exchange of such
securities or upon the exercise of the options or rights related to such
securities.
(E) The
number of shares of Common Stock deemed issued and the consideration deemed paid
therefor pursuant to Sections
9(a)(v)(A) and 9(a)(v)(B) shall be appropriately adjusted to reflect any
change, termination or expiration of the type described in either Section
9(a)(v)(C) or 9(a)(v)(D).
(vi) "Additional Stock"
shall mean any shares of Common Stock issued (or deemed to have been issued
pursuant to Section
9(a)(v)) by the Company after the date hereof, other than:
(A) shares
of Common Stock issued or so deemed to have been issued upon conversion of
shares of Series A Preferred Stock;
(B) shares
of Common Stock issued or so deemed to have been issued to officers, directors,
consultants or employees of the Company pursuant to a plan or program adopted by
the Company's Board of Directors;
(C) shares
of Common Stock (or options, warrants or other rights to purchase such Common
Stock) issued or so deemed to have been issued in connection with acquisitions,
merger transactions, consolidations or similar business
combinations;
5
(D) shares
of Common Stock issued or so deemed to have been issued in connection with
leases, bank financings, credit agreements or similar instruments with equipment
lessors, commercial lenders, banks, or similar financial institutions if
approved by the Board of Directors;
(E) shares
of Common Stock issued or so deemed to have been issued in connection with a
strategic alliance or corporate partnering transaction entered into by the
Company;
(F) shares
of Common Stock issued or so deemed to have been issued pursuant to options and
warrants outstanding on the date hereof; and
(G) shares
of Common Stock issued or so deemed to have been issued pursuant to a
transaction described in Section 9(a)(ii) or Section
9(a)(iii) for which adjustments are
made pursuant to such Section.
(b) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding,
(i) pays a stock dividend on its Common Stock or otherwise makes a distribution
on any class of capital stock that is payable in shares of Common Stock, (ii)
subdivides outstanding shares of Common Stock into a larger number of shares, or
(iii) combines outstanding shares of Common Stock into a smaller number of
shares, then in each such case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the denominator shall be
the number of shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
(c) Pro Rata
Distributions. If the Company, at any time while this Warrant is
outstanding, distributes to all holders of Common Stock (i) evidences of its
indebtedness, (ii) any security (other than a distribution of Common Stock
covered by Section
9(b)), (iii) rights or warrants to subscribe for or purchase any
security, or (iv) any other asset (in each case, "Distributed
Property"), then in each such case the Exercise Price in effect
immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution shall be adjusted (effective on such
record date) to equal the product of such Exercise Price times a fraction of
which the denominator shall be the average of the closing price of the Company’s
Common Stock (as reflected on the American Stock Exchange, the New York Stock
Exchange, the Nasdaq Stock Market or the Over-the-Counter Bulletin Board, as
applicable (the "Listed Stock
Exchange")) for the five trading days immediately prior to (but not
including) such record date and of which the numerator shall be such average
less the then fair market value of the Distributed Property distributed in
respect of one outstanding share of Common Stock, as determined by the Company's
independent certified public accountants that regularly examine the financial
statements of the Company (an "Appraiser"). In such
event, the Holder, after receipt of the determination by the Appraiser, shall
have the right to select an additional appraiser (which shall be a nationally
recognized accounting firm), in which case such fair market value shall be
deemed to equal the average of the values determined by each of the Appraiser
and such appraiser. As an alternative to the foregoing adjustment to the
Exercise Price, at the request of the Holder delivered before the 90th day
after such record date, the Company will deliver to the Holder, within five
business days after such request (or, if later, on the effective date of such
distribution), the Distributed Property that the Holder would have been entitled
to receive in respect of the Warrant Shares for which this Warrant could have
been exercised immediately prior to such record date. If such Distributed
Property is not delivered to the Holder pursuant to the preceding sentence, then
upon expiration of or any exercise of the Warrant that occurs after such record
date, the Holder shall remain entitled to receive, in addition to the Warrant
Shares otherwise issuable upon such exercise (if applicable), such Distributed
Property.
6
(d) Fundamental
Transactions. If, at any time while this Warrant is outstanding, (i) the
Company effects any merger or consolidation of the Company with or into another
Person, (ii) the Company effects any sale of all or substantially all of its
assets in one or a series of related transactions, (iii) any tender offer or
exchange offer (whether by the Company or another Person) is completed pursuant
to which holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (iv) the Company effects any
reclassification of the Common Stock or any compulsory share exchange pursuant
to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property (other than as a result of a subdivision or
combination of shares of Common Stock covered by Section 9(b) above) (in any such case, a "Fundamental
Transaction"), then the Holder shall have the right thereafter to
receive, upon exercise of this Warrant, the same amount and kind of securities,
cash or property as it would have been entitled to receive upon the occurrence
of such Fundamental Transaction if it had been, immediately prior to such
Fundamental Transaction, the Holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the "Alternate
Consideration"). The aggregate Exercise Price for this Warrant will not
be affected by any such Fundamental Transaction, but the Company shall apportion
such aggregate Exercise Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Common Stock are given any choice as to
the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction. In the event of a Fundamental Transaction, the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Holder a written agreement providing that:
(x) this
Warrant shall thereafter entitle the Holder to purchase the Alternate
Consideration in accordance with this Section
9(d);
(y) in
the case of any such successor or purchasing Person, upon such consolidation,
merger, statutory exchange, combination, sale or conveyance, such successor or
purchasing Person shall be jointly and severally liable with the Company for the
performance of all of the Company's obligations under this Warrant and the
Purchase Agreement; and
(z) if
registration or qualification is required under the Securities Exchange Act of
1934, as amended, or applicable state law for the public resale by the Holder of
shares of stock and other securities so issuable upon exercise of this Warrant,
all rights applicable to registration of the Common Stock issuable upon exercise
of this Warrant shall apply to the Alternate Consideration.
7
If, in
the case of any Fundamental Transaction, the Alternate Consideration includes
shares of stock, other securities, other property or assets of a Person other
than the Company or any such successor or purchasing Person, as the case may be,
in such Fundamental Transaction, then such written agreement shall also be
executed by such other Person and shall contain such additional provisions to
protect the interests of the Holder as the Board of Directors of the Company
shall reasonably consider necessary by reason of the foregoing. At the Holder's
request, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new warrant consistent with the
foregoing provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The terms
of any agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this Subsection (d) and insuring that the Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction. If any Fundamental Transaction
constitutes or results in a change of control, the Company (or any such
successor or surviving entity) will purchase the Warrant from the Holder for a
purchase price, payable in cash within five business days after such request
(or, if later, on the effective date of the Fundamental Transaction), equal to
the Black-Scholes value of the remaining unexercised portion of this Warrant on
the date of such request.
(e) Number of Warrant
Shares. Simultaneously with any adjustments to the Exercise Price
pursuant to Subsections (a),
(b) or (c), the number of
Warrant Shares that may be purchased upon exercise of this Warrant shall be
increased or decreased proportionately, so that after such adjustment the
aggregate Exercise Price payable hereunder for the increased or decreased number
of Warrant Shares shall be the same as the aggregate Exercise Price in effect
immediately prior to such adjustment.
(f) Calculations. All
calculations under this Section 9 shall be made to the nearest cent or the nearest
1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(g) Notice of
Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the
Company at its expense will promptly compute such adjustment in accordance with
the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise of
this Warrant (as applicable), describing the transactions giving rise to such
adjustments and showing in detail the facts upon which such adjustment is based.
Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company's transfer agent.
8
(h) Notice of Corporate
Events. If the Company (i) declares a dividend or any other distribution
of cash, securities or other property in respect of its Common Stock, including
without limitation any granting of rights or warrants to subscribe for or
purchase any capital stock of the Company or any Subsidiary, (ii) authorizes or
approves, enters into any agreement contemplating or solicits stockholder
approval for any Fundamental Transaction, or (iii) authorizes the voluntary
dissolution, liquidation or winding up of the affairs of the Company, then the
Company shall deliver to the Holder a notice describing the material terms and
conditions of such transaction, at least 20 calendar days prior to the
applicable record or effective date on which a Person would need to hold Common
Stock in order to participate in or vote with respect to such transaction, and
the Company will take all steps reasonably necessary in order to insure that the
Holder is given the practical opportunity to exercise this Warrant prior to such
time so as to participate in or vote with respect to such transaction; provided,
however, that the failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be described in such
notice.
10. Cashless Exercise.
Provided that the Company's Common Stock is listed on a Listed Stock Exchange,
the Holder may satisfy its obligation to pay the Exercise Price through a
"cashless exercise," in which event the Company shall issue to the Holder the
number of Warrant Shares determined as follows:
X = Y
[(A-B)/A]
where:
X = the
number of Warrant Shares to be issued to the Holder.
Y = the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the
arithmetic average of the closing prices for the five trading days (as reflected
on such Listed Stock Exchange) immediately prior to (but not including) the
Exercise Date.
B = the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued.
11. Fractional Shares.
The Company shall not be required to issue or cause to be issued fractional
Warrant Shares upon the exercise of this Warrant. If any fraction of a Warrant
Share would, except for the provisions of this Section, be issuable upon
exercise of this Warrant, the number of Warrant Shares to be issued will be
rounded up to the nearest whole share.
12. Notices. Any and all
notices or other communications or deliveries hereunder (including without
limitation any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section prior to 5:00 p.m. (Los Angeles, California time) on a business
day, (ii) the next business day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile number specified in
this Section on a day that is not a business day or later than 5:00 p.m. (Los
Angeles, California time) on any business day, (iii) the business day following
the date of mailing, if sent by nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices or communications shall be as
set forth in the Purchase Agreement.
9
13. Warrant Agent. The
Company shall serve as warrant agent under this Warrant. Upon 30 days' notice to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or stockholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
14. Miscellaneous.
(a) Assignment; Successors;
Amendment. Subject to the restrictions on transfer set forth on the first
page hereof, this Warrant may be assigned by the Holder. This Warrant may not be
assigned by the Company except to a successor in the event of a Fundamental
Transaction. This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Subject to
the preceding sentence, nothing in this Warrant shall be construed to give to
any Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Warrant. This Warrant may be amended only
in writing signed by the Company and the Holder and their successors and
assigns.
(b) Further Actions. The
Company will not, by amendment of its governing documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality of
the foregoing, the Company (i) will not increase the par value of any Warrant
Shares above the amount payable therefor on such exercise, (ii) will take all
such action as may be reasonably necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares on the exercise of this Warrant, and (iii) will not close its stockholder
books or records in any manner which interferes with the timely exercise of this
Warrant.
10
(c) Governing Law; Venue; Waiver
of Jury Trial. All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Nevada, without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Warrant (whether brought
against a party hereto or its respective Affiliates, directors, officers,
stockholders, employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of Las Vegas, Nevada. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Las Vegas, Nevada for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of this Warrant), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Warrant or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Warrant, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its
reasonable attorneys fees and other reasonable costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
(d) Headings. The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(e) Severability. In case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[Remainder
of This Page Intentionally Left Blank; Signature Page to
Follow]
11
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
|
WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC.
|
|
|
By:
|
|
|
Name:
|
▇▇▇
▇▇▇▇
|
|
Title:
|
Chief
Executive
Officer
|
12
FORM
OF EXERCISE NOTICE
(To be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant)
To:
Weikang Bio-Technology Group Company, Inc.
The
undersigned is the Holder of Warrant No. [WW-A-00__] (the "Warrant") issued by
Weikang Bio-Technology Group Company, Inc., a Nevada corporation (the "Company").
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
|
1.
|
The
Warrant is currently exercisable to purchase a total of ______________
Warrant Shares.
|
|
2.
|
The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
|
|
3.
|
The
Holder intends that payment of the Exercise Price shall be made as (check
one):
|
____
"Cash Exercise" under Section 4(b);
or
____
"Cashless Exercise" under Section 10 (if permitted).
|
4.
|
If
the Holder has elected a Cash Exercise, the Holder shall pay the sum of
$___________ to the Company in accordance with the terms of the
Warrant.
|
|
5.
|
Pursuant
to this exercise, the Company shall deliver to the Holder _______________
Warrant Shares in accordance with the terms of the
Warrant.
|
|
6.
|
Following
this exercise, the Warrant shall be exercisable to purchase a total of
______________ Warrant Shares.
|
|
Dated:
________________, ________
|
Name
of ▇▇▇▇▇▇:
|
|
|
(Print)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
13
FORM
OF ASSIGNMENT
(To be
completed and signed only upon transfer of the Warrant)
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the within Warrant to
purchase ____________ shares of Common Stock of Weikang Bio-Technology Group
Company, Inc. to which the within Warrant relates and appoints ________________
attorney to transfer said right on the books of Weikang Bio-Technology Group
Company, Inc. with full power of substitution in the premises.
|
Dated:
________________, ________
|
Name
of ▇▇▇▇▇▇:
|
|
|
Name:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
(Signature
must conform in all respects to name of the Holder as specified on the
face of the Warrant)
|
||
|
Address:
|
||
|
In
the presence of:
|