Exhibit 4.5
THE REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES
THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN
PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR A
PERIOD OF SIX MONTHS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE
OTHER THAN (I) MAXIM GROUP LLC ("MAXIM") OR ITS AFFILIATES OR AN UNDERWRITER OR
A SELECTED DEALER IN CONNECTION WITH THE OFFERING (DEFINED HEREIN), OR (II) A
BONA FIDE OFFICER, PARTNER OR EMPLOYEE OF MAXIM OR OF ANY SUCH UNDERWRITER OR
SELECTED DEALER.
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF: (I) , 2008 [SIX
MONTHS FROM EFFECTIVE DATE] AND (II) THE CONSUMMATION BY CHINA RESOURCES LTD.
(THE "COMPANY") OF A MERGER, CAPITAL STOCK EXCHANGE, ASSET ACQUISITION OR OTHER
SIMILAR BUSINESS COMBINATION (A "BUSINESS COMBINATION") (AS DESCRIBED MORE FULLY
IN THE COMPANY'S REGISTRATION STATEMENT (AS DEFINED HEREIN). THIS PURCHASE
OPTION SHALL BE VOID AFTER 5:00 P.M, NEW YORK CITY LOCAL TIME, ON , 2012 [FIVE
YEARS FROM EFFECTIVE DATE].
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
280,000 UNITS
OF
CHINA RESOURCES LTD.
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $100 duly paid by or on
behalf of Maxim Group LLC (collectively, with its successors and permitted
assigns and/or transferees, the "Holder"), as registered owner of this Purchase
Option, to China Resources Ltd. (the "Company"), Holder is entitled, at any time
or from time to time after the closing of the Offering (as defined below) and
during the period commencing (the "Commencement Date") on the later of: (i) the
consummation of a Business Combination and (ii) _______________, 2008 [six
months from the effective date of the registration statement], and expiring (the
"Expiration Date") at or before 5:00 p.m., New York City local time, , 2012
[five years from effective date of the registration statement], but not
thereafter, to subscribe for, purchase and receive, in whole or in part, up to
Two Hundred Eighty Thousand (280,000) units (the "Units") of the Company, each
Unit consisting of one share of common stock of the Company, par value $.0001
per share (the "Common Stock"), and one warrant (the "Warrant") to purchase one
share of Common Stock expiring five years from the effective date (the
"Effective Date") of the registration statement (the "Registration Statement")
pursuant to which Units are offered for sale to the public (the "Offering").
Each Warrant is on the same terms and conditions as the warrants underlying the
Units being registered for sale to the public by way of the Registration
Statement. If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Purchase Option shall expire on the next
succeeding day that is not such a day in accordance with the terms herein.
During the period ending on the Expiration Date, the Company agrees not to take
any action that would terminate the Purchase Option. This Purchase Option is
initially exercisable at $11.00 per Unit (the "Exercise Price"). The number of
Units purchasable hereunder and the Exercise Price are subject to adjustment as
provided in this Purchase Option.
2. Exercise.
2.1 Exercise. This Purchase Option may be exercised by the Holder in
whole or in part at any time or in part from time to time on or after the
Commencement Date and before the Expiration Date by: (x) surrendering this
Purchase Option to the Company, (y) delivering a subscription form in the
attached hereto as Annex I (duly executed by the Holder) and (z) making payment
of the Exercise Price in cash, certified or official bank check payable to the
order of the Company or wire transfer of immediately available funds (to an
account designated by the Company), in any case in an amount obtained by
multiplying (a) the number of Units designated by the Holder in the subscription
form by (b) the Exercise Price then in effect. In the event of a partial
exercise or assignment hereof, the Company shall issue and deliver to or upon
the order of the Holder a new Purchase Option of like tenor, in the name of the
Holder or as the Holder (upon payment by the Holder of applicable transfer
taxes) may request, evidencing the right to purchase the aggregate number of
Units for which such Purchase Option may still be exercised. If the subscription
rights represented hereby shall not be exercised at or before 5:00 p.m., New
York City local time on the Expiration Date, this Purchase Option automatically
shall become and be void, without further force or effect, and all rights
represented hereby shall cease and expire.
2.2 Legend. Each certificate for the Units issued upon exercise of
this Purchase Option and each certificate representing the underlying Common
Stock and Warrants and the Common Stock issuable upon exercise of the underlying
Warrants (the "Warrant Shares") shall bear a legend as follows, unless such
Units, Common Stock, Warrants and/or Warrant Shares (collectively, the
"Securities") have been registered under the Securities Act of 1933, as amended
(the "Act"):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS
AVAILABLE."
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2.3 Cashless Exercise. In lieu of the payment of the Exercise Price
multiplied by the number of Units for which this Purchase Option is exercisable
(and in lieu of being entitled to receive Common Stock and Warrants) in the
manner required by Section 2.1, the Holder shall have the right (but not the
obligation) to convert any exercisable but unexercised portion of this Purchase
Option into Units (the "Conversion Right") as follows: upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of any of the Exercise Price in cash) that number of shares of Common
Stock and Warrants comprising that number of Units equal to the quotient
obtained by dividing (x) the Value (as defined below) of the portion of the
Purchase Option being converted by (y) the Current Market Value (as defined
below) of the portion of the Purchase Option being converted. The "Value" of the
portion of the Purchase Option being converted shall equal the remainder derived
from subtracting (a) (i) the Exercise Price multiplied by (ii) the number of
Units underlying the portion of this Purchase Option being converted from (b)
the Current Market Value (as defined below) of a Unit multiplied by the number
of Units underlying the portion of the Purchase Option being converted. As used
herein, the term "Current Market Value" per Unit at any date means: (A) in the
event that neither the Units nor Warrants are still trading, the remainder
derived from subtracting (x) the exercise price of the Warrants multiplied by
the number of shares of Common Stock issuable upon exercise of the Warrants
underlying one Unit from (y) (i) the Current Market Price of the Common Stock
multiplied by (ii) the number of shares of Common Stock underlying one Unit,
which shall include the shares of Common Stock underlying the Warrants included
in such Unit less the Exercise Price for the Unit plus the current Market Price
of the Common Stock underlying the Unit; (B) in the event that the Units, Common
Stock and Warrants are still trading, (i) if the Units are listed on a national
securities exchange or quoted on the Nasdaq Global Market, Nasdaq Capital Market
or NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange),
the average of the last sale price of the Units in the principal trading market
for the Units as reported by the exchange, Nasdaq or the NASD, as the case may
be, for the ten trading days ending on the third business day prior to exercise;
or (ii) if the Units are not listed on a national securities exchange or quoted
on the Nasdaq Global Market, Nasdaq Capital Market or the NASD OTC Bulletin
Board (or successor exchange), but is traded in the residual over-the-counter
market, the average of the closing bid price for Units for the ten trading days
ending on the third business day prior to exercise for which such quotations are
reported by the Pink Sheets, LLC or similar publisher of such quotations; and
(C) in the event that the Units are not still trading but the Common Stock and
Warrants underlying the Units are still trading, the Current Market Price of the
Common Stock plus the product of (x) the Current Market Price of the Warrants
and (y) the number of shares of Common Stock underlying the Warrants included in
one Unit. The "Current Market Price" shall mean (i) if the Common Stock (or
Warrants, as the case may be) is listed on a national securities exchange or
quoted on the Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin
Board (or successor such as the Bulletin Board Exchange), the average of the
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sale price of the Common Stock (or Warrants) in the principal trading market for
the Common Stock as reported by the exchange, Nasdaq or the NASD, as the case
may be, for the ten trading days ending on the third business day prior to
exercise; (ii) if the Common Stock (or Warrants, as the case may be) is not
listed on a national securities exchange or quoted on the Nasdaq Global Market,
Nasdaq Capital Market or the NASD OTC Bulletin Board (or successor exchange),
but is traded in the residual over-the-counter market, the closing bid price for
the Common Stock (or Warrants) on the last trading day preceding the date in
question for which such quotations are reported by the Pink Sheets, LLC or
similar publisher of such quotations; and (iii) if the fair market value of the
Common Stock cannot be determined pursuant to clause (i) or (ii) above, such
price as the Board of Directors of the Company shall determine, in good faith.
2.4 Mechanics of Cashless Exercise. The Cashless Exercise Right may
be exercised by the Holder on any business day on or after the Commencement Date
and not later than the Expiration Date by delivering the Purchase Option with
the duly executed exercise form attached hereto with the cashless exercise
section completed to the Company, exercising the Cashless Exercise Right and
specifying the total number of Units the Holder will purchase pursuant to such
Cashless Exercise Right.
2.5 No Cash Settlement. Notwithstanding anything to the contrary
contained in this Purchase Option, under no circumstances will the Company be
required to net cash settle the exercise of the Purchase Option or the Warrants
underlying the Purchase Option.
2.6 Effective Registration Statement. The Warrants underlying this
Purchase Option are exercisable only during those periods of time in which the
Company maintains the effectiveness of the Registration Statement. If the
Company fails to maintain the effectiveness of the Registration Statement, the
Warrants underlying this Purchase Option may expire worthless.
3. Transfer.
3.1 General Restrictions. Holder agrees that, pursuant to NASD Rule
2710(g)(1), it will not sell this Purchase Option during the Company's Offering,
nor shall such Holder sell, transfer, assign, pledge, hypothecate or otherwise
dispose of this Purchase Option (including the Securities hereunder) or cause
this Purchase Option or the Securities hereunder to be the subject of any
hedging, short sale, derivative, put or call transaction that would result in
the effective economic disposition of this Purchase Option or the Securities
hereunder, except as provided for in NASD Rule 2710(g)(2).
3.2 Restrictions Imposed by the Act. The Securities evidenced by
this Purchase Option shall not be transferred unless and until (i) the Company
has received the opinion of counsel for the Holder that the Securities may be
transferred pursuant to an exemption from registration under the Act and
applicable state securities laws, the availability of which is established to
the reasonable satisfaction of the Company (the Company hereby agreeing that the
opinion of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ LLP shall be deemed satisfactory evidence of the
availability of an exemption), or (ii) a registration statement or a
post-effective amendment to the Registration Statement relating to such
Securities has been filed by the Company and declared effective by the
Securities and Exchange Commission (the "SEC") and compliance with applicable
state securities law has been established.
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4. New Purchase Options to be Issued.
4.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Purchase Option may be exercised or assigned in whole or
in part. In order to make any permitted assignment or transfer, the Holder must
deliver to the Company the assignment form attached hereto as ▇▇▇▇▇ ▇▇ duly
executed and completed, together with the Purchase Option and payment of all
transfer taxes, if any, payable in connection therewith. The Company shall
within five (5) business days transfer this Purchase Option on the books of the
Company and shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing the right to
purchase the aggregate number of Units purchasable hereunder or such portion of
such number as shall be contemplated by any such assignment or transfer.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Purchase Option and of reasonably satisfactory indemnification or the posting of
a bond, the Company shall execute and deliver a new Purchase Option of like
tenor and date. Any such new Purchase Option executed and delivered as a result
of such loss, theft, mutilation or destruction shall constitute a substitute
contractual obligation on the part of the Company.
5. Registration Rights.
5.1 Demand Registration.
5.1.1 Grant of Right. The Company, upon written demand (an
"Demand Notice") of the Holder(s) of at least 51% (the "Majority Holders") of
the Purchase Options and/or the underlying Units and/or the underlying
Securities, agrees to register all or any portion of the Purchase Option and the
underlying Securities (collectively, the "Registrable Securities") as requested
by the Majority Holders. The Company will file a registration statement or a
post-effective amendment to the Registration Statement covering the Registrable
Securities within sixty (60) days after receipt of the Initial Demand Notice and
use its best efforts to have such registration statement or post-effective
amendment declared effective as soon as possible thereafter, subject to
compliance with review by the SEC. The demand for registration may be made at
any time during a period of five (5) years beginning on the Effective Date. The
Company covenants and agrees to give written notice of its receipt of any Demand
Notice by any Holder(s) to all other registered Holders of the Purchase Options
and/or the Registrable Securities within ten (10) days from the date of the
receipt of any such Demand Notice.
5.1.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, including the expenses of
one legal counsel selected by the Holders to represent them in connection with
the registration of the Registrable Securities, but the Holders shall pay any
and all underwriting commissions. The Company agrees to use its reasonable best
efforts to qualify or register the Registrable Securities in such States as are
reasonably requested by the Majority Holder(s); provided, however, that in no
event shall the Company be required to register the Registrable Securities in a
State in which such registration would cause (i) the Company to be obligated to
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qualify to do business in such State, or would subject the Company to taxation
as a foreign corporation doing business in such jurisdiction or (ii) the
principal stockholders of the Company to be obligated to escrow their shares of
capital stock of the Company. The Company shall cause any registration statement
or post-effective amendment filed pursuant to the demand rights granted under
Section 5.1.1 to remain effective for a period of two (2) years from the
effective date of such registration statement or post-effective amendment.
5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. If at any time during a period of seven
(7) years commencing on the Effective Date when there is not an effective
registration statement covering all of the Registrable Securities, the Company
shall determine to prepare and file with the SEC a registration statement
relating to an offering under the Act of any of its securities, other than
pursuant to SEC Form S-4 or S-8 or any equivalent form, the Company, upon the
request of any Holder, as described below, shall cause the registration under
the Act of the Registrable Securities as part of any such registration statement
filed by the Company; provided, however, that if, in the written opinion of the
Company's managing underwriter or underwriters, if any, for such offering, the
inclusion of the Registrable Securities, when added to the securities being
registered by the Company or the selling stockholder(s), will exceed the maximum
amount of the Company's securities (the "Maximum Number of Shares") which can be
marketed (i) at a price reasonably related to their then current market value,
and (ii) without materially and adversely affecting the entire offering, then
the Company shall include in any such registration:
(i) If the registration is undertaken for the Company's
account: (A) first, the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; (B) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the shares of Common Stock, if any,
including the Registrable Securities, as to which registration has been
requested pursuant to written contractual piggy-back registration rights of
security holders (pro rata in accordance with the number of shares of Common
Stock which each such person has actually requested to be included in such
registration, regardless of the number of shares of Common Stock with respect to
which such persons have the right to request such inclusion) that can be sold
without exceeding the Maximum Number of Shares; and
(ii) If the registration is a "demand" registration undertaken
at the demand of persons other than the holders of Registrable Securities
pursuant to written contractual arrangements with such persons, (A) first, the
shares of Common Stock for the account of the demanding persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clause
(A), the shares of Common Stock or other securities that the Company desires to
sell that can be sold without exceeding the Maximum Number of Shares; and (C)
third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the Registrable Securities as to which
registration has been requested under this Section 5.2 (pro rata in accordance
with the number of shares of Registrable Securities held by each such holder);
and (D) fourth, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A), (B) and (C), the shares of Common
Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which other shareholders desire to
sell that can be sold without exceeding the Maximum Number of Shares.
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5.2.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, including the reasonable
expenses of one legal counsel selected by the Holders to represent them in
connection with the registration of the Registrable Securities but the Holders
shall pay any and all underwriting commissions related to the Registrable
Securities. In the event of such a proposed registration, the Company shall
furnish the then Holders of outstanding Registrable Securities with not less
than fifteen (15) days' written notice prior to the proposed date of filing of
such registration statement. Such notice to the Holders shall continue to be
given for each applicable registration statement filed (during the period in
which the Purchase Option is exercisable) by the Company until such time as all
of the Registrable Securities have been registered and sold. The holders of the
Registrable Securities shall exercise the "piggy-back" rights provided for
herein by giving written notice, within ten days of the receipt of the Company's
notice of its intention to file a registration statement. The Company shall
cause any registration statement filed pursuant to the above "piggyback" rights
to remain effective for at least nine months from the date that the Holders of
the Registrable Securities are first given the opportunity to sell all of such
securities. The Company agrees, at its sole expense, to use its reasonable best
efforts to qualify or register the Registrable Securities in such States as are
reasonably requested by the Majority Holder(s); provided, however, that in no
event shall the Company be required to register the Registrable Securities in a
State in which such registration would cause (i) the Company to be obligated to
qualify to do business in such State, or would subject the Company to taxation
as a foreign corporation doing business in such jurisdiction or (ii) the
principal stockholders of the Company to be obligated to escrow their shares of
capital stock of the Company.
5.3 General Terms.
5.3.1 Indemnification. The Company shall, notwithstanding any
termination of this Purchase Option, indemnify and hold harmless each Holder,
the officers, directors, agents, brokers, investment advisors and employees of
each of them and each person, if any, who controls such Holders within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the officers, directors, agents
and employees of such controlling person, to the fullest extent permitted by
applicable law, from and against all loss, claim, damage, expense or liability
(including all reasonable attorneys' fees and other expenses reasonably incurred
in investigating, preparing or defending against litigation, commenced or
threatened, or any claim whatsoever whether arising out of any action between
the underwriter and the Company or between the underwriter and any third party
or otherwise) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising out of or relating to such registration
statement filed pursuant to this Section 5 and any prospectus contained in the
7
registration statement or in any amendment or supplement thereto, except only to
the same extent and with the same effect as the provisions pursuant to which the
Company has agreed to indemnify the underwriters contained in Section 5.1 of the
Underwriting Agreement between the Company, Maxim and the other underwriters
named therein dated the Effective Date. Each Holder of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement to
the same extent and with the same effect as the provisions contained in Section
5.2 of the Underwriting Agreement pursuant to which the underwriters have agreed
to indemnify the Company.
5.3.2 Exercise of Purchase Options. Nothing contained in this
Purchase Option shall be construed as requiring any Holder to exercise their
Purchase Options or Warrants underlying such Purchase Options prior to or after
the filing of any registration statement or the effectiveness thereof.
5.3.3 Documents Delivered to Holders. The Company shall
furnish Maxim, as representative of the Holders participating in any of the
foregoing offerings, a signed counterpart, addressed to the participating
Holders, of (i) an opinion of counsel to the Company, dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, an opinion dated the date of the closing under any
underwriting agreement related thereto), and (ii) a "cold comfort" letter dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, a letter dated the date of the closing
under the underwriting agreement) signed by the independent public accountants
who have issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities. The Company shall
also deliver promptly to Maxim, as representative of the Holders participating
in the offering, the correspondence and memoranda described below and copies of
all correspondence between the Commission and the Company, its counsel or
auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the registration statement and permit Maxim, as
representative of the Holders, to do such investigation, upon reasonable advance
notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. (the "NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as Maxim, as representative of the Holders,
shall reasonably request. The Company shall not be required to disclose any
confidential information or other records to Maxim, as representative of the
Holders, or to any other person, until and unless such persons shall have
entered into reasonable confidentiality agreements (in form and substance
reasonably satisfactory to the Company), with the Company with respect thereto.
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5.3.4 Documents to be Delivered by ▇▇▇▇▇▇(s). Each Holder
participating in any of the foregoing offerings shall furnish to the Company a
completed and executed questionnaire provided by the Company requesting
information customarily sought of selling securityholders.
5.3.5 Underwriting Agreement. The Company shall enter into an
underwriting agreement with the managing underwriter(s), if any, selected by any
Holders, whose Registrable Securities are being registered pursuant to this
Section 5, which managing underwriter shall be reasonably acceptable to the
Company. Such agreement shall be reasonably satisfactory in form and substance
to the Company and its legal counsel, each Holder and such managing
underwriters, and shall contain such representations, warranties and covenants
by the Company and such other terms as are customarily contained in agreements
of that type used by the managing underwriter. The Holders shall be parties to
any underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the underwriters except as they may relate to
such Holders and their intended methods of distribution. Such Holders, however,
shall agree to such covenants and indemnification and contribution obligations
for selling stockholders as are customarily contained in agreements of that type
used by the managing underwriter. Further, such Holders shall execute
appropriate custody agreements and otherwise cooperate fully in the preparation
of the registration statement and other documents relating to any offering in
which they include securities pursuant to this Section 5. Each Holder shall also
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
5.3.6 Rule 144 Sale. Notwithstanding anything contained in
this Section 5 to the contrary, the Company shall have no obligation pursuant to
Sections 5.1 or 5.2 for the registration of Registrable Securities held by any
Holder (i) where such Holder would then be entitled to sell under Rule 144
within any three month period (or such other period prescribed under Rule 144 as
may be provided by amendment thereof) all of the Registrable Securities held by
such Holder, and (ii) where the number of Registrable Securities held by such
Holder is within the volume limitations under paragraph (e) of Rule 144
(calculated as if such Holder were an affiliate within the meaning of Rule 144).
5.3.7 Supplemental Prospectus. Each Holder agrees, that upon
receipt of any notice from the Company of the happening of any event as a result
of which the prospectus included in the Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, such Holder
will immediately discontinue disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until such
▇▇▇▇▇▇'s receipt of the copies of a supplemental or amended prospectus, and, if
so desired by the Company, such Holder shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
such destruction) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
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6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of Units underlying the Purchase Option shall be
subject to adjustment from time to time as hereinafter set forth:
6.1.1 Stock Dividends - Split-Ups. If after the date hereof,
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 thereof, the number of
shares of Common Stock underlying each of the Units purchasable hereunder shall
be increased in proportion to such increase in outstanding shares. In such case,
the number of shares of Common Stock, and the exercise price applicable thereto,
underlying the Warrants underlying each of the Units purchasable hereunder shall
be adjusted in accordance with the terms of the Warrants. For example, if the
Company declares a two-for-one stock dividend and at the time of such dividend
this Purchase Option is for the purchase of one Unit at $11.00 per whole Unit
(each Warrant underlying the Units is exercisable for $7.50 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow
for the purchase of one Unit at $11.00 per Unit, each Unit entitling the holder
to receive two shares of Common Stock and two Warrants (each Warrant exercisable
for $3.75 per share).
6.1.2 Aggregation of Shares. If after the date hereof, the
number of outstanding shares of Common Stock is decreased by a consolidation,
combination or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock
underlying each of the Units purchasable hereunder shall be decreased in
proportion to such decrease in outstanding shares. In such case, the number of
shares of Common Stock, and the exercise price applicable thereto, underlying
the Warrants underlying each of the Units purchasable hereunder shall be
adjusted in accordance with the terms of the Warrants.
6.1.3 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 6.1.1 or 6.1.2 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 property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, 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, by a Holder of the number of shares of
Common Stock of the Company obtainable upon exercise of this Purchase Option and
the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by
Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections
6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
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6.1.4 Changes in Form of Purchase Option. This form of
Purchase Option need not be changed because of any change pursuant to this
Section, and the Purchase Options issued after such change may state the same
Exercise Price and the same number of Units as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to an adjustment
occurring after the Commencement Date or the computation thereof.
6.2 Substitute Purchase Option. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental Purchase Option providing that the holder of each
Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Option) to receive,
upon exercise of such Purchase Option, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger,
by a holder of the number of shares of Common Stock of the Company for which
such Purchase Option might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental Purchase Option shall
provide for adjustments which shall be identical to the adjustments provided in
Section 6. The above provision of this Section shall similarly apply to
successive consolidations or mergers.
6.3 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
or Warrants upon the exercise of the Purchase Option, nor shall it be required
to issue scrip or pay cash in lieu of any fractional interests, it being the
intent of the parties that all fractional interests shall be eliminated by
rounding any fraction up or down to the nearest whole number of Warrants, shares
of Common Stock or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and
keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon exercise of the Purchase Options or the Warrants
underlying the Purchase Option, such number of shares of Common Stock or other
securities, properties or rights as shall be issuable upon the exercise thereof.
The Company covenants and agrees that, upon exercise of the Purchase Options and
payment of the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid and non-assessable and not subject to preemptive rights of any stockholder.
The Company further covenants and agrees that upon exercise of the Warrants
underlying the Purchase Options and payment of the respective Warrant exercise
price therefor, all shares of Common Stock and other securities issuable upon
such exercise shall be duly and validly issued, fully paid and non-assessable
11
and not subject to preemptive rights of any stockholder. As long as the Purchase
Options shall be outstanding, the Company shall use its best efforts to cause
all (i) Units and shares of Common Stock issuable upon exercise of the Purchase
Options, (ii) Warrants issuable upon exercise of the Purchase Options and (iii)
shares of Common Stock issuable upon exercise of the Warrants included in the
Units issuable upon exercise of the Purchase Option to be listed (subject to
official notice of issuance) on all securities exchanges (or, if applicable on
the Nasdaq Global Market, Nasdaq Capital Market, NASD OTC Bulletin Board or any
successor trading market) on which the Units, the Common Stock or the Warrants
may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holders the right to vote or consent as a
stockholder for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Purchase Options and their exercise, any of the
events described in Section 8.2 shall occur, then, in one or more of said
events, the Company shall give written notice of such event at least fifteen
(15) days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
dividend, distribution, conversion or exchange of securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation, winding
up or sale. Such notice shall specify such record date or the date of the
closing of the transfer books, as the case may be. Notwithstanding the
foregoing, the Company shall deliver to each Holder a copy of each notice given
to the other stockholders of the Company at the same time and in the same manner
that such notice is given to the stockholders.
8.2 Events Requiring Notice. The Company shall be required to give
the notice described in this Section 8 upon one or more of the following events:
(i) if the Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or distribution,
or (ii) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into, exercisable for or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor, or (iii) a
dissolution, liquidation or winding up of the Company (other than in connection
with a consolidation or merger) or a sale of all or substantially all of its
property, assets and business or a merger of the Company wherein the separate
existence of the Company shall cease shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to Section 6
hereof, send notice to the Holders of such event and change (a "Price Notice").
The Price Notice shall describe the event causing the change and the method of
calculating same and shall be certified as being true and accurate by the
Company's President and Chief Financial Officer.
12
8.4 Transmittal of Notices. All notices, requests, consents and
other communications under this Purchase Option shall be in writing and shall be
deemed to have been duly made when hand delivered, mailed by express mail or
private courier service, or sent by facsimile transmission, with confirmation of
receipt: (i) If to the registered Holder of the Purchase Option, to the address
and/or fax number of such Holder as shown on the books of the Company, or (ii)
if to the Company, to the following address or fax number or to such other
address or and fax number as the Company may designate by notice to the Holders:
China Resources Ltd.
▇▇▇▇ ▇▇▇▇ China ▇▇▇ ▇▇▇ Trading Co., Ltd. Room 921,
Block A, Golden Central Tower ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , ▇.▇. China
Attn: Chief Executive Officer
Fax No.: ▇▇-▇▇▇-▇▇▇▇▇▇▇▇
9. Miscellaneous.
9.1 Amendments. The Company and Maxim may from time to time
supplement or amend this Purchase Option without the approval of any of the
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provisions
herein, or to make any other provisions in regard to matters or questions
arising hereunder that the Company and Maxim may deem necessary or desirable and
that the Company and ▇▇▇▇▇ ▇▇▇▇ shall not adversely affect the interest of the
Holders. All other modifications or amendments shall require the written consent
of and be signed by the party against whom enforcement of the modification or
amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Purchase
Option.
9.3. Entire Agreement. This Purchase Option (together with the other
agreements and documents being delivered pursuant to or in connection with this
Purchase Option) constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.4 Binding Effect. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
permitted assignees, respective successors, legal representative and assigns,
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Purchase
Option or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction. This Purchase Option
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, without giving effect to conflict of laws. Each of the
Company and Maxim agree that any action, proceeding or claim against it arising
out of, or relating in any way to this Purchase Option shall be brought and
enforced in the courts of the State of New York located in New York County or of
13
the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the Company and Maxim hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any 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 8 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim. The Company and the Holder agree
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attorneys' fees and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
9.6 Waiver, Etc. The failure of the Company or the Holder to at any
time enforce any of the provisions of this Purchase Option shall not be deemed
or construed to be a waiver of any such provision, nor to in any way affect the
validity of this Purchase Option or any provision hereof or the right of the
Company or any Holder to thereafter enforce each and every provision of this
Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of
any of the provisions of this Purchase Option shall be effective unless set
forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of
any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution. It is agreed that deliver of the Company's signature
hereon by facsimile or other electronic method of delivery shall constitute a
valid signature and delivery.
9.8 Exchange Agreement. As a condition of the Holder's receipt and
acceptance of this Purchase Option, ▇▇▇▇▇▇ agrees that, at any time prior to the
complete exercise of this Purchase Option by Holder, if the Company and Maxim
enter into an agreement (an "Exchange Agreement") pursuant to which they agree
that all outstanding Purchase Options will be exchanged for securities or cash
or a combination of both, then Holder shall agree to such exchange and become a
party to the Exchange Agreement.
9.9 Underlying Warrants. At any time after exercise by the Holder of
this Purchase Option, the Holder may exchange his Warrants for Public Warrants
upon payment to the Company of the difference between the exercise price of his
Warrant and the exercise price of the Public Warrants, if any.
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IN WITNESS WHEREOF, the Company has caused this Purchase Option to
be signed by its duly authorized officer as of the ___th day of , 2007.
CHINA RESOURCES LTD.
By: ______________________________
Name:
Title:
15
Annex I
Form to be used to exercise Purchase Option
CHINA RESOURCES LTD.
_________________________
_________________________
Date:_________________, 200__
The undersigned hereby elects irrevocably to exercise all or a
portion of the within Purchase Option and to purchase ____ Units of China
Resources Ltd. and hereby makes payment of $____________ (at the rate of
$_________ per Unit) in payment of the Exercise Price pursuant thereto. Please
issue the Common Stock and Warrants as to which this Purchase Option is
exercised in accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to convert its right to
purchase _________ Units purchasable under the within Purchase Option by
surrender of the unexercised portion of the attached Purchase Option (with a
"Value" based of $_______ based on a "Market Price" of $_______). Please issue
the securities comprising the Units as to which this Purchase Option is
exercised in accordance with the instructions given below.
________________________
Signature
________________________
Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name_____________________________________________________________
(Print in Block Letters)
Address__________________________________________________________
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON A
REGISTERED NATIONAL SECURITIES EXCHANGE.
▇▇▇▇▇ ▇▇
Form to be used to assign Purchase Option
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Purchase Option):
FOR VALUE RECEIVED,___________________________________________ does
hereby sell, assign and transfer unto______________________________________ the
right to purchase __________ Units of China Resources Ltd. (the "Company")
evidenced by the within Purchase Option and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated:___________________, 200_
______________________
Signature
______________________
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON A
REGISTERED NATIONAL SECURITIES EXCHANGE.