WARRANT AGENCY AGREEMENT CHINA ARCHITECTURAL ENGINEERING, INC. 800,000 WARRANTS EXPIRING 2010 April 12, 2007
Execution
Copy
800,000
WARRANTS EXPIRING 2010
April
12,
2007
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Clause
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Page
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1.
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INTERPRETATION
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1
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2.
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APPOINTMENT
OF THE AGENT
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3
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3.
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THE
WARRANTS; AUTHENTICATION
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4
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4.
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EXCHANGES
OF GLOBAL WARRANT CERTIFICATE FOR INDIVIDUAL
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WARRANT
CERTIFICATES
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4
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5.
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TRANSFERS
OF WARRANTS
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5
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6.
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REPLACEMENT
WARRANT CERTIFICATES
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5
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7.
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EXERCISE
OF WARRANTS AND DELIVERY OF WARRANT SHARES
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6
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8.
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[INTENTIONALLY
LEFT BLANK]
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8
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9.
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MISCELLANEOUS
DUTIES OF THE AGENT
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8
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10.
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TERMS
OF APPOINTMENT
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9
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11.
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CHANGES
IN AGENT
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10
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12.
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INDEMNITY
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12
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13.
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COMMISSIONS,
FEES AND EXPENSES
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12
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14.
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CURRENCY
INDEMNITY
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13
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15.
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NOTICES
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14
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16.
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LAW
AND JURISDICTION
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15
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17.
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▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇
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▇▇.
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RIGHTS
OF THIRD PARTIES
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16
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19.
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COUNTERPARTS
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16
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| SCHEDULE 1 |
REGULATIONS
CONCERNING TRANSFERS AND REGISTRATION
OF
WARRANTS
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18
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SCHEDULE
2
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SPECIFIED OFFICES OF THE AGENT |
20
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i
THIS
WARRANT AGENCY AGREEMENT
(this
“Agreement”)
is made
on April 12, 2007.
BY
AND AMONG:
| (1) |
CHINA
ARCHITECTURAL ENGINEERING, INC.
(the “Company”);
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| (2) |
THE
BANK OF NEW YORK,
as registrar (the “Registrar”);
and
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| (3) |
THE
BANK OF NEW YORK, LONDON BRANCH,
as agent (the “Agent”).
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WHEREAS:
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(A)
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The
Company proposes to issue certain warrants (the “Warrants”)
as set out in the Warrant Instrument (defined
below).
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(B)
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The
Company, incorporated in the State of Delaware, has authorised the
issue
of the Warrants and the right of conversion into Shares upon exercise
of
the Warrants by a resolution of the board of directors of the Company
dated April 9, 2007.
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(C)
|
The
Warrants will be in registered form. The Warrants will be represented
by a
global certificate (the “Global
Warrant Certificate”),
which will be exchangeable for individual note certificates (“Individual
Warrant Certificates”
and, together with the Global Warrant Certificate, “Warrant
Certificates”)
in the circumstances specified
therein.
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(D)
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The
Company, the Registrar, and the Agent wish to record certain arrangements
which they have made in relation to the
Warrants.
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IT
IS AGREED
as
follows:
| 1. |
INTERPRETATION
|
| 1.1 |
Definitions
|
In
this
Agreement, the following expressions have the following meanings:
“Agent”
means
the Agent at its Specified Office appointed pursuant to this Agreement and/or,
if applicable, any successor agent at its respective Specified Office appointed
from time to time in accordance with Clause 11 (Changes
in Agent)
and any
of its respective Successors;
“Business
Day”
means
any day on which banks are open for general business (including dealings in
foreign currencies) in New York and in the city where the Specified Office
of
the Agent is located;
“Clearing
Systems”
means
Euroclear and Clearstream;
“Clearstream”
means
Clearstream Banking, société anonyme;
“Common
Depositary”
means
The Bank of New York, in its capacity as common depositary for Euroclear and
Clearstream;
“Conditions”
means
the terms and conditions of the Warrants (as set out in the Warrant Instrument
and as modified from time to time in accordance with their terms), and any
reference to a numbered “Condition”
is
to
the correspondingly numbered provision thereof;
“Euroclear”
means
Euroclear Bank S.A./N.V., as operator of the Euroclear System;
“Exercise
Date”
has
the
meaning given in the Warrant Instrument;
“Holder”
of
a
Warrant means the person in whose name such Warrant is for the time being
registered in the Register (or, in the case of a joint holding, the first named
thereof) and “Warrantholder”
shall
be construed accordingly;
“Hong
Kong”
means
the Hong Kong Special Administrative Region of the People’s Republic of
China;
“Majority
Warrantholders”
has
the
meaning given in the Warrant Instrument;
“Registrar”
means
the Registrar at its Specified Office appointed pursuant to this Agreement
and/or, if applicable, any successor registrar at its respective Specified
Office appointed from time to time in accordance with Clause 11
(Changes
in Agent)
and any
of its respective Successors;
“Register”
means
the register maintained by the Registrar at its Specified Office;
“Regulations”
means
the regulations concerning the transfer of Warrants as the same may from time
to
time be agreed by the Company and the Registrar (the initial such regulations
being set out in the Schedule 1);
“Specified
Office”
means,
in relation to the Agent or the Registrar:
|
(a)
|
the
office specified against its name in the Schedule 2;
or
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(b)
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such
other office as such Agent or Registrar may specify in accordance
with
Clause 11.8 (Changes
in Specified Offices);
|
“Subscription
Price”
has
the
meaning given in the Warrant Instrument;
“Subscription
Rights”
has
the
meaning given in the Warrant Instrument;
“Successor”
means,
in relation to any person, an assignee or successor in title of such person
who,
under the law of its jurisdiction of incorporation or domicile, has assumed
the
rights and obligations of such person under this Agreement or to which under
such laws the same have been transferred;
“Warrant
Share”
has
the
meaning given in the Warrant Instrument; and
“Warrant
Instrument”
means
the Instrument between the Company and ABN AMRO Bank, N.V. as subscriber, of
even date herewith.
-2-
| 1.2 |
Clauses
and Schedules
|
Any
reference in this Agreement to a Clause or a sub-clause or a Schedule is, unless
otherwise stated, to a clause or a sub-clause hereof or a schedule
hereto.
| 1.3 |
Principal
and Interest
|
In
this
Agreement, any reference to principal or interest includes any additional
amounts payable in relation thereto under the Conditions.
| 1.4 |
Terms
defined in the Conditions and the Trust
Deed
|
Terms
and
expressions used but not defined herein have the respective meanings given
to
them in the Warrant Instrument, the Conditions and the Trust Deed.
| 1.5 |
Statutes
|
Any
reference in this Agreement to a statute, any provision thereof or to any
statutory instrument, order or regulation made thereunder shall be construed
as
a reference to such statute, provision, statutory instrument, order or
regulation as the same may have been, or may from time to time be, amended
or
re-enacted.
| 1.6 |
Headings
|
Headings
and sub-headings are for ease of reference only and shall not affect the
construction of this Agreement.
| 1.7 |
Singular
and Plural
|
Words
denoting the singular shall include the plural and vice
versa.
| 1.8 |
Amended
Documents
|
Save
where the contrary is indicated, any reference in this Agreement to any
agreement or other document shall be construed as a reference to such agreement
or other document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented.
| 2. |
APPOINTMENT
OF THE AGENT
|
| 2.1 |
Appointment
|
The
Company appoints the Agent and the Registrar as its agent and registrar in
relation to the Warrants for the purposes specified in this Agreement acting
through their respective Specified Offices. The Agent and the Registrar shall
act solely as agent and Registrar of the Company and need have no concern for
the interest of the Warrantholders.
| 2.2 |
Acceptance
of Appointment
|
The
Agent
and the Registrar accept their appointments as agent and registrar,
respectively, of the Company in relation to the Warrants and agree to comply
with, and shall only be obliged to perform the duties expressed to be required
by, this Agreement. The obligations of the Agent and the Registrar are several
and not joint.
-3-
| 3. |
THE
WARRANTS; AUTHENTICATION
|
| 3.1 |
The
Global Warrant Certificate
|
On
the
Closing Date: (a) the Company shall deliver the Global Warrant Certificate
to
the Registrar for authentication; and (b) the Registrar shall deliver the
authenticated Global Warrant Certificate to a common depositary for the Clearing
Systems.
| 3.2 |
Availability
of Individual Warrant
Certificates
|
If
the
Company is required to deliver Individual Warrant Certificates pursuant to
the
terms of the Global Warrant Certificate, the Company shall promptly arrange
for
a stock of Individual Warrant Certificates (unauthenticated and with the names
of the registered Holders left blank but executed on behalf of the Company
and
otherwise complete) to be made available to the Registrar. The Company shall
also arrange for such Global Warrant Certificates and Individual Warrant
Certificates as are required to enable the Registrar and the Agent to perform
their respective obligations under Clause 4 (Exchanges
of Global Warrant Certificate for Individual Warrant
Certificates),
Clause 5 (Transfers
of Warrants)
and
Clause 6 (Replacement
Warrant Certificates)
to be
made available to or to the order of the Registrar and the Agent from time
to
time.
| 3.3 |
Authority
to Authenticate
|
The
Registrar is authorised by the Company to authenticate the Global Warrant
Certificate and the Individual Warrant Certificates (if any) by the signature
of
any of its officers or any other person duly authorised for the purpose by
the
Registrar.
| 3.4 |
Duties
of the Registrar and the
Agent
|
Each
of
the Registrar and the Agent shall hold in safe custody all unauthenticated
Global Warrant Certificates and Individual Warrant Certificates delivered to
it
in accordance with Clause 3.2 (Availability
of Individual Warrant Certificates)
and
shall ensure that they are authenticated and delivered only in accordance with
the terms hereof, of the Global Warrant Certificate (if applicable) and of
the
Conditions. Without limitation of the foregoing, each of the Registrar and
Agent
hereby accept their responsibilities under the Warrant Instrument.
| 4. |
EXCHANGES
OF GLOBAL WARRANT CERTIFICATE FOR INDIVIDUAL WARRANT
CERTIFICATES
|
If
the
Global Warrant Certificate becomes exchangeable for Individual Warrant
Certificates in accordance with its terms, the Registrar shall authenticate
and
deliver to each person designated by a Clearing System, an Individual Warrant
Certificate in accordance with the terms of this Agreement and the Global
Warrant Certificate.
-4-
| 5. |
TRANSFERS
OF WARRANTS
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| 5.1 |
Maintenance
of the Register
|
The
Registrar shall maintain outside the United Kingdom a register (the
“Register”)
in
respect of the Warrants, which shall be kept at its Specified Office in
accordance with the Conditions and be made available by the Registrar to the
Company and the Agent for inspection. The Register shall show the aggregate
principal amount, serial numbers and dates of issue of Warrant Certificates,
the
names and addresses of the initial Holders thereof and the dates of all
transfers to, and the names and addresses of, all subsequent Holders thereof,
each Warrantholder’s portion of the Warrant Shares, all cancellations of Warrant
Certificates and all replacements of Warrant Certificates.
| 5.2 |
Registration
of Transfers in the
Register
|
The
Registrar shall receive requests for the transfer of Warrants in accordance
with
the Conditions and the Regulations and shall make the necessary entries in
the
Register.
| 5.3 |
Agent
to Receive Requests for Transfers of
Warrants
|
The
Agent
shall receive requests for the transfer of Warrants in accordance with the
Conditions and the Regulations and assist, if required, in the issue of new
Warrant Certificates to give effect to such transfers and, in particular, upon
any such request being duly made, shall promptly notify the Registrar
of:
| (a) |
the
aggregate amount of the Warrants to be
transferred;
|
| (b) |
the
name(s) and address(es) to be entered on the Register of the Holder(s)
of
the new Warrant Certificate(s) to be issued, in order to give effect
to
such transfer; and
|
| (c) |
the
place and manner of delivery of the new Warrant Certificate(s) to
be
delivered in respect of such
transfer,
|
and
shall
forward the Warrant Certificate(s) relating to the Warrants to be transferred
(with the relevant form(s) of transfer duly completed) to the Registrar with
such notification.
| 5.4 |
Miscellaneous
|
Upon
notification by the Company of receipt of service of demands, requests,
instructions, orders, judgements or awards, the Registrar shall (to the extent
required by law) forthwith make such entries in the Register to give effect
to
such demands, requests, instructions, orders, judgments or awards.
| 6. |
REPLACEMENT
WARRANT CERTIFICATES
|
| 6.1 |
Delivery
of Replacements
|
Subject
to receipt of replacement Global Warrant Certificates and/or Individual Warrant
Certificates (as the case may be), the Registrar shall, upon and in accordance
with the written instructions of the Company (which instructions may, without
limitation, include terms as to the payment of expenses and as to evidence,
security and indemnity), complete, authenticate and deliver a Global Warrant
Certificate or Individual Warrant Certificate which the Company has determined
to issue as a replacement for any Global Warrant Certificate or Individual
Warrant Certificate which has been mutilated or defaced or which has been or
is
alleged to have been destroyed, stolen or lost, provided
that the
Agent
shall not deliver any Global Warrant Certificate or Individual Warrant
Certificate as a replacement for any Global Warrant Certificate or Individual
Warrant Certificate which has been mutilated or defaced otherwise than against
surrender of the same and shall not issue any replacement Global Warrant
Certificate or Individual Warrant Certificate until the applicant has furnished
the Agent with such evidence and indemnity as the Company and/or the Agent
may
reasonably require and has paid such costs and expenses as may be incurred
in
connection with such replacement.
-5-
| 6.2 |
Replacements
to be Numbered
|
Each
replacement Global Warrant Certificate or Individual Warrant Certificate
delivered hereunder shall bear a unique certificate number.
| 6.3 |
Cancellation
and destruction
|
The
Agent
shall cancel and destroy each mutilated or defaced Global Warrant Certificate
or
Individual Warrant Certificate surrendered to it in respect of which a
replacement has been delivered.
| 6.4 |
Notification
|
Upon
written request therefor, the Agent shall notify the Company and the Registrar
of the delivery by it of any replacement Global Warrant Certificate or
Individual Warrant Certificate, specifying the certificate number thereof and
the certificate number (if any and if known) of the Global Warrant Certificate
or Individual Warrant Certificate which it replaces, and confirming (if such
is
the case) that the Global Warrant Certificate or Individual Warrant Certificate
which it replaces has been cancelled and destroyed.
| 7. |
EXERCISE
OF WARRANTS AND DELIVERY OF WARRANT
SHARES
|
| 7.1 |
Notice
of Exercise
|
The
Subscription Rights conferred by a Warrant may be exercised by the Warrantholder
completing and duly executing a Notice of Exercise and lodging the relevant
Warrant Certificate (with the Notice of Exercise attached) at the Specified
Office of the Agent together with a remittance for the total Subscription Price
of the Warrant Shares in respect of which Subscription Rights are to be
exercised. The Agent may refuse to accept any Notice of Exercise which has
not
been correctly completed or executed or which is incomplete (as determined
by
the Agent in its discretion) but shall incur no liability for doing so.
No
Notice
of Exercise will be effective until the Notice of Exercise and the relevant
Warrant Certificate have been received by the Agent and the applicable
Subscription Price has been remitted to the Agent. Any Notice of Exercise,
Warrant Certificate or payment received by the Agent on a day which is not
a
Business Day or after 3.30 pm in London on a Business Day, will be deemed
effective on the next succeeding Business Day.
-6-
| 7.2 |
Replacement
Warrant Certificates
|
If
any
Global Warrant Certificate or Individual Warrant Certificate is presented or
surrendered for exercise to the Agent and the Agent or Registrar has delivered
a
replacement therefor or has been notified that the same has been replaced,
the
Agent shall forthwith notify the Company and the Registrar of such presentation
or surrender and shall not request the Company to make delivery of any Warrant
Shares against the same until it is so instructed by the Company.
| 7.3 |
Application
by Agent
|
On
the
Business Day on which the Agent receives (or is deemed to receive) the documents
and payment required under Clause 7.1 above, or, if the Notice of Exercise
is conditional, on the Business Day on which the final condition thereunder
is
satisfied, or, in either case, on the immediately following Business Day, the
Agent shall remit the Subscription Price to the Company, send a copy of the
Notice of Exercise to the Company and request the Company to allot, issue to
and
register Warrant Shares in accordance with Condition 5 of the Warrant Instrument
in the name of the Warrantholder or, as the case may be, any Affiliate of the
Warrantholder, as nominated by the Warrantholder in the relevant Notice of
Exercise.
| 7.4 |
Allotment
of Warrant Shares
|
On
receiving a request from the Agent, the Company shall cause the Warrant Shares
to be allotted, issued and registered in the name of the Warrantholder (or
its
Affiliate) in accordance with Condition 5 of the Warrant Instrument and as
notified by the Agent and shall notify the Agent of such allotment, issuance
and
registration promptly thereafter.
| 7.5 |
Cancellation
of Warrant Certificates
|
The
Agent
shall cancel each Warrant Certificate against presentation and surrender of
which the Company notifies the Agent that it has made delivery of Warrant Shares
in full and the Agent shall deliver each Warrant Certificate so cancelled by
it
to, or to the order of, the Registrar.
| 7.6 |
Partial
Exercise
|
If
at any
time and for any reason the Company makes a partial delivery of Warrant Shares
in respect of the Global Warrant Certificate or any Individual Warrant
Certificate presented for exercise to it, the Agent shall endorse thereon a
statement indicating the amount and the date of such delivery. In addition,
if,
in respect of any Exercise Date, less than the full amount of any Warrant Shares
due are delivered in respect of the Warrants, the Registrar will note on the
Register a memorandum of the amount and date of any delivery of Warrant Shares
then made and, if the Global Warrant Certificate or any Individual Warrant
Certificate is presented for exercise in accordance with the Conditions and
no
delivery of Warrant Shares is then made, the date of such exercise.
-7-
| 8. |
[INTENTIONALLY
LEFT BLANK]
|
| 9. |
MISCELLANEOUS
DUTIES OF THE AGENT
|
| 9.1 |
Warrants
in issue
|
As
soon
as practicable after receiving a written request therefor, the Registrar shall
notify the Company of the certificate numbers and amount of any Warrant
Certificates against exercise of which delivery of Warrant Shares has been
made
and of the certificate numbers and amount of any Warrant Certificates (and
the
names and addresses of the Holders thereof) which have not yet been
exercised.
| 9.2 |
Forwarding
of Communications
|
Each
Agent shall promptly forward to the Company a copy of any notice or
communication addressed to the Company which is received by such
Agent.
| 9.3 |
Maintenance
of records
|
Each
of
the Agent and the Registrar shall maintain records of all documents received
by
it in connection with its duties hereunder and shall make such records available
for inspection during their respective office hours by the Company and the
Registrar or Agent (as the case may be) and, in particular the Registrar shall:
(a) maintain a record of all Warrant Certificates delivered hereunder and of
their redemption, payment, cancellation, mutilation, defacement, alleged
destruction, theft, loss and replacement; and (b) make such records available
for inspection at all reasonable times by the Company and the
Agent.
| 9.4 |
Publication
and Delivery of Notices
|
The
Registrar shall, upon and in accordance with the written instructions of the
Company, received at least ten (10) days before the proposed publication date,
arrange for the publication and delivery of any notice which is to be given
to
the Warrantholders and shall supply a copy thereof to the Agent, and each
Clearing System. Such publication will be at the expense of the
Company.
| 9.5 |
Documents
available for inspection
|
The
Company shall provide to the Agent and the Registrar conformed copies of this
Agreement and the Warrant Instrument (including the Conditions and the form
of
the Global Warrant Certificates and Individual Warrant Certificates).
Each
of
the Agent and the Registrar shall make available for inspection during normal
business hours at its Specified Office the documents referred to
above.
-8-
| 10. |
TERMS
OF APPOINTMENT
|
| 10.1 |
Rights
and powers
|
Each
of
the Agent and the Registrar may, in connection with its services
hereunder:
| (a) |
except
as ordered by a court of competent jurisdiction or otherwise required
by
law and regardless of any notice of ownership, trust or any other
interest
therein, any writing on the Warrant Certificate relating to any Warrant
by
any person (other than a duly executed form of transfer) or any notice
of
any previous loss or theft thereof, treat the registered Holder of
any
Warrant as its absolute owner for all purposes and make payments
thereon
accordingly;
|
| (b) |
assume
that the terms of the Global Warrant Certificate and each Individual
Warrant Certificate as issued are
correct;
|
| (c) |
rely
upon the terms of any notice, communication or other document believed
by
it to be genuine; and
|
| (d) |
engage
the advice or services of any lawyers or other experts whose advice
or
services it considers necessary and rely upon any advice so obtained
(whether or not limited by a monetary cap or otherwise) and such
Agent
and/or Registrar shall be protected and shall incur no liability
as
against the Company in respect of any action taken or not taken,
or
permitted to be taken or not taken, in accordance with such advice
and in
good faith.
|
| 10.2 |
Extent
of Duties
|
Each
of
the Agent and the Registrar shall only be obliged to perform the duties set
out
in this Agreement and the Conditions and no implied duties or obligations shall
be read into this Agreement or the Conditions in respect of the Agent or the
Registrar. Neither the Agent nor the Registrar shall:
| (a) |
be
under any fiduciary duty or other obligation towards or have any
relationship of agency for or with any person other than the Company
or
any relationship of trust for or with any person;
|
| (b) |
be
responsible for or liable in respect of the legality, validity or
enforceability of the Warrants, Warrant Certificate or this Agreement
(other than in respect of authentication of Warrant Certificates
by it in
accordance with this Agreement) or any act or omission of any other
person
(including, without limitation, with respect to the Agent, the Registrar,
and with respect to the Registrar, the Agent);
or
|
| (c) |
be
liable to the Company or any other party to this Agreement for any
consequential loss (being loss of business, goodwill, opportunity
or
profit) arising out of any breach by the Agent or the Registrar of
any of
its obligations under this Agreement even if advised of the possibility
of
such loss or damage.
|
-9-
| 10.3 |
Freedom
to Transact
|
Each
of
the Agent and the Registrar may purchase, hold and dispose of Warrants and
may
enter into any transaction (including, without limitation, any depositary,
trust
or agency transaction) with any Holders of Warrants or with any other party
hereto in the same manner as if it had not been appointed as the agent of the
Company in relation to the Warrants and need not account for any
profit.
| 11. |
CHANGES
IN AGENT
|
| 11.1 |
Resignation
|
The
Agent
or Registrar may resign its appointment upon not less than thirty (30) days’
notice to the Company (with a copy, in the case of the Agent, to the Registrar,
and in the case of the Registrar, to the Agent), provided
that:
| (a) |
if
such resignation would otherwise take effect less than thirty (30)
days
before or after the exercise date of any Warrant, it shall not take
effect
until the thirtieth day following such date;
and
|
| (b) |
such
resignation shall not take effect until a successor has been duly
appointed in accordance with Clause 11.4 (Additional
and Successor Agent)
or Clause 11.5 (Agent
may Appoint Successors)
and notice of such appointment has been given to the
Warrantholders.
|
| 11.2 |
Revocation
|
The
Company may revoke their appointment of the Agent or Registrar by not less
than
thirty (30) days’ notice to the Agent or the Registrar (as applicable) (with a
copy, in the case of the Agent to the Registrar, and in the case of the
Registrar to the Agent), provided
that
such
revocation shall not take effect until a successor has been duly appointed
in
accordance with Clause 11.4 (Additional
and Successor Agent)
or
Clause 11.5 (Agent
may Appoint Successors)
and
notice of such appointment has been given to the Warrantholders.
| 11.3 |
Automatic
Termination
|
The
appointment of the Agent and/or Registrar shall terminate forthwith if: (a)
such
person becomes incapable of acting; (b) a secured party takes possession, or
a
receiver, manager or other similar officer is appointed, of the whole or any
part of the undertaking, assets and revenues of such person; (c) such person
admits in writing its insolvency or inability to pay its debts as they fall
due;
(d) an administrator or liquidator of such person or the whole or any part
of
the undertaking, assets and revenues of such person is appointed (or application
for any such appointment is made); (e) such person takes any action for a
readjustment or deferment of any of its obligations or makes a general
assignment or an arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its indebtedness; (f)
an
order is made or an effective resolution is passed for the winding-up of such
person; or (g) any event occurs in any jurisdiction which has an analogous
effect to any of the foregoing. If the appointment of the Registrar or Agent
is
terminated in accordance with the preceding sentence, the Company shall
forthwith appoint a successor in accordance with Clause 11.4 (Additional
and Successor Agent).
-10-
| 11.4 |
Additional
and Successor Agent
|
The
Company may (with the approval of the Majority Warrantholders) appoint a
successor registrar or agent and shall forthwith give notice of any such
appointment to the continuing Agent or Registrar (as applicable), whereupon
the
Company, the continuing Agent or Registrar and the successor agent or registrar
shall acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of
this
Agreement.
| 11.5 |
Agent
may Appoint Successors
|
If
the
Registrar or the Agent gives notice of its resignation in accordance with
Clause 11.1 (Resignation)
and by
the tenth day before the expiry of such notice a successor has not been duly
appointed in accordance with Clause 11.4 (Additional
and Successor Agent),
the
Registrar or (as the case may be) the Agent may itself, following such
consultation with the Company as is practicable in the circumstances appoint
as
its successor any reputable and experienced financial institution and give
notice of such appointment to the Company, the remaining Agent or Registrar
and
the Warrantholders, whereupon the Company, the remaining Agent or Registrar
and
such successor shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement in
the
form mutatis
mutandis of
this
Agreement.
| 11.6 |
Release
|
Upon
any
resignation or revocation taking effect under Clause 11.1 (Resignation)
or 11.2
(Revocation)
or any
termination taking effect under Clause 11.3 (Automatic
Termination),
the
relevant Agent or Registrar shall:
| (a) |
be
released and discharged from (i) its obligations under this Agreement
(save that it shall remain entitled to the benefit of and be subject
to
Clause 10 (Terms
of Appointment)
and Clause 11 (Changes
in Agent));
and (ii) all liabilities relating to any
successor;
|
| (b) |
in
the case of the Registrar, deliver to the Company and to its successor
a
copy, certified as true and up-to-date by an officer or authorised
signatory of the Registrar, of the records maintained by it in accordance
with Clause 5.1 (Maintenance
of the Register);
and
|
| (c) |
forthwith
transfer all Warrant Shares and papers (including any unissued Warrant
Certificates held by it hereunder and any documents held by it pursuant
to
Clause 9.5 (Documents
available for inspection))
to its successor and, upon appropriate notice, provide reasonable
assistance to its successor for the discharge of its duties and
responsibilities hereunder.
|
| 11.7 |
Merger
|
Any
legal
entity into which the Agent or Registrar is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent or Registrar
is a party shall, to the extent permitted by applicable law, be the successor
to
such Agent or, as the case may be, Registrar without any further formality,
whereupon the Company, the continuing Agent or Registrar and such successor
shall acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of
this
Agreement. Notice of any such merger or conversion shall forthwith be given
by
such successor to the Company, the continuing Agent or Registrar and the
Warrantholders.
-11-
| 11.8 |
Changes
in Specified Offices
|
If
the
Agent or Registrar decides to change its Specified Office (which may only be
effected within the same city unless the prior written approval of the Company
and the Majority Warrantholders has been obtained), it shall give notice to
the
Company (with a copy to the Agent or Registrar, as the case may be) of the
address of the new Specified Office stating the date on which such change is
to
take effect, which date shall be not less than thirty (30) days after the date
of such notice. The Company shall at its own expense not less than fourteen
(14)
days prior to the date on which such change is to take effect (unless the
appointment of the relevant Agent or Registrar is to terminate pursuant to
any
of the foregoing provisions of this Clause 11 (Changes
in Agent)
on or
prior to the date of such change) give notice thereof to the
Warrantholders.
| 12. |
INDEMNITY
|
| 12.1 |
By
the Company
|
The
Company indemnifies each of the Agent and the Registrar against any loss,
liability, cost, claim, action, demand or expense (including, but not limited
to, the costs of any lawyers or other experts and all properly incurred costs,
charges and expenses paid or incurred in disputing or defending any of the
foregoing) which it may incur or which anyone appointed by the Agent or
Registrar, or to whom any of its functions may be delegated by it in the
carrying out of its functions hereunder, may incur, or which may be made against
it arising out of or in relation to or in connection with its appointment or
the
exercise of its functions, except such as may result from its wilful default,
gross negligence or fraud or that of its officers, employees, appointees or
delegates. The indemnity set out in this Clause 12.1 shall survive the
termination or expiry of this Agreement and the resignation or removal of any
Agent or Registrar.
| 12.2 |
Notwithstanding
any contrary provision of this Agreement, neither the Agent nor Registrar
shall in any event be liable for any special, indirect, punitive
or
consequential loss or damage of any kind (including but not limited
to
lost profits), whether or not foreseeable, and whether or not the
Agent or
Registrar is aware of, or the Agent or Registrar has been advised
of, the
likelihood of such loss or damage and regardless of whether the claim
for
loss or damage is made in negligence, for breach of contract or
otherwise.
|
| 13. |
COMMISSIONS,
FEES AND EXPENSES
|
| 13.1 |
Fees
|
The
Company will pay to the Agent and Registrar the commissions, fees and expenses
in respect of the Agent’ and Registrar’s services (as applicable) as separately
agreed with the Agent and Registrar.
-12-
| 13.2 |
Costs
|
The
Company will also on demand by the Agent or Registrar pay or discharge all
costs, charges, liabilities and expenses properly incurred by the Agent or
Registrar in the preparation and execution of this Agreement, and in the
performance of their functions under this Agreement, including but not limited
to legal and travelling expenses incurred by the Agent or Registrar in the
negotiation or execution of this Agreement.
The
Company will also pay on demand all out-of-pocket expenses (including, but
not
limited to, legal, advertising and postage expenses) properly incurred by the
Agent or Registrar in connection with their services together with any
applicable value added tax and stamp, issue, documentary or other taxes and
duties.
Neither
the Agent nor Registrar shall have any obligation to act if it reasonably
believes it will incur costs for which it will not be reimbursed.
| 13.3 |
Payments
and Interest
|
The
Company will ensure that all the commissions, fees, costs, charges, liabilities
and expenses incurred under this Clause 13 (Commission,
Fees and Expenses),
or
otherwise, by the Agent or Registrar are paid within thirty (30) days of receipt
of a written demand. After such period any amounts owing by the Company to
either the Agent or Registrar will carry interest from the date of demand at
the
rate of two percent (2%) per annum over the base rate of a UK clearing bank
(as
selected by the Agent or Registrar (as applicable) and notified to the
Company).
| 13.4 |
No
Withholding
|
All
payments to be made by the Company under this Agreement shall be made free
and
clear of, and without any deduction for, any taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected, withheld
or
assessed under any applicable law by or within any relevant jurisdiction or
any
authority therein or thereof having the power to tax, unless such withholding
or
deduction is required by law. In such an event, the amount payable shall be
increased to an amount which will result in the receipt by the Registrar and
the
Agent of such amount as would have been received by them had no such withholding
or deduction been required.
| 14. |
CURRENCY
INDEMNITY
|
An
amount
received or recovered in a currency other than dollars (the “Contractual
Currency”)
(whether as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction or in the winding-up or dissolution of the Company,
or
otherwise), by any of the Agent of the Registrar in respect of any sum expressed
to be due to it from the Company, will only discharge the Company, to the extent
of the Contractual Currency amount which the recipient is able to purchase
with
the amount so received or recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on
that
date, on the first date on which it is practicable to do so).
If
that
Contractual Currency amount is less than the Contractual Currency amount
expressed to be due to the recipient under this Agreement, the Company will
indemnify it against any loss sustained by it as a result. In any event, the
Company will indemnify the recipient against the cost of making any such
purchase.
-13-
| 15. |
NOTICES
|
| 15.1 |
Addresses
for Notices
|
All
notices and communications hereunder shall be made in writing (by letter or
fax)
and shall be sent as follows:
| (a) |
If
to the Company, to it at:
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇
China
|
|
|
Fax
no.
|
▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
|
|
Attention:
|
Luo
▇▇▇ ▇▇
|
| (b) |
If
to the Agent or Registrar, to it at the address or fax number specified
against its name in Schedule 2 (or, in the case of an Agent not originally
a party hereto, specified by notice to the parties hereto at the
time of
its appointment) for the attention of the person or department therein
specified; and
|
or,
in
any case, to such other address or fax number or for the attention of such
other
person or department as the addressee has by prior notice to the sender
specified for the purpose.
| 15.2 |
Delivery
|
Each
communication and document to be made or delivered by one (1) party to another
pursuant to this Agreement shall be deemed to have been delivered when
despatched (in the case of any communication by facsimile) or (in the case
of
any communication made by letter) when left at the address or (as the case
may
be) ten days after being deposited in the post (postage pre-paid) in an envelope
addressed to it at that address.
| 15.3 |
Notices
to Warrantholders
|
Any
notice required to be given to Warrantholders under this Agreement shall be
given in accordance with the Conditions; provided,
however, that,
so long
as the Warrants are represented by the Global Warrant Certificate, notices
to
Warrantholders shall be given in accordance with the terms of the Global Warrant
Certificate.
| 15.4 |
Notices
in English
|
All
notices and other communications hereunder shall be made in the English language
or shall be accompanied by a certified English translation thereof. Any
certified English translation delivered hereunder shall be certified a true
and
accurate translation by a professionally qualified translator or by some other
person competent to do so.
-14-
| 16. |
LAW
AND JURISDICTION
|
| 16.1 |
Governing
Law
|
This
Agreement and all matters arising from or connected with it are governed by,
and
shall be construed in accordance with, English law.
| 16.2 |
English
Courts
|
The
Company irrevocably agrees that the courts of England have exclusive
jurisdiction to settle any dispute (a “Dispute”),
arising from or connected with this Agreement (including a dispute regarding
the
existence, validity or termination of this Agreement or the consequences of
its
nullity) and accordingly submits to the exclusive jurisdiction of the English
courts.
| 16.3 |
Appropriate
forum
|
The
parties agree that the courts of England are the most appropriate and convenient
courts to settle any Dispute and, accordingly, that they will not argue to
the
contrary.
| 16.4 |
Rights
of the Agent to take proceedings outside
England
|
Clause 16.2
(English
Courts)
is for
the benefit of the Agent and the Registrar only. As a result, nothing in this
Clause prevents the Agent or the Registrar from taking proceedings relating
to a
Dispute (“Proceedings”)
in any
other courts with jurisdiction. To the extent allowed by law, the Agent and
the
Registrar may take concurrent Proceedings in any number of
jurisdictions.
| 16.5 |
Service
of process
|
The
Company agrees that the documents which start any Proceedings and any other
documents required to be served in relation to those Proceedings may be served
on it by being delivered to The
London Law Agency of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇.
If such
person is not or ceases to be effectively appointed to accept service of process
on behalf of the Company, the Company shall (i) promptly notify the Agent;
and
(ii) appoint a further person in England to accept service of process on its
behalf and, failing such appointment within fifteen (15) days, the Agent shall
be entitled to appoint such a person by written notice to the Company. Nothing
in this paragraph shall affect the right of any party hereto to serve process
in
any other manner permitted by law. This Clause 16.5 (Service
of process)
applies
to Proceedings in England and to Proceedings elsewhere.
| 16.6 |
Arbitration
|
The
Company agrees that the Agent and/or the Registrar may elect by written notice
to the Company that any Dispute shall be finally settled by arbitration in
accordance with the Rules of the London Court of International Arbitration
(the
“LCIA”)
as at
present in force and as modified by this Clause 16.6 (Arbitration)
(the
“Rules”),
which
Rules shall be deemed incorporated in this Agreement. The number of arbitrators
shall be three (3). The parties may nominate and the LCIA Court may appoint
arbitrators from among the nationals of any country, whether or not a party
is a
national of that country. Each arbitrator appointed shall be an attorney
experienced in international securities transactions. The seat of arbitration
shall be London, England and the language of arbitration shall be English.
Sections 45 and 69 of the Arbitration ▇▇▇ ▇▇▇▇ shall not apply.
-15-
| 17. |
MODIFICATION
|
This
Agreement may be amended by further agreement among the parties hereto and
without the consent of the Warrantholders.
| 18. |
RIGHTS
OF THIRD PARTIES
|
A
person
who is not a party to this Agreement has no right under the Contracts (Rights
of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any terms of this Agreement.
| 19. |
COUNTERPARTS
|
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when so executed shall constitute one (1)
and
the same binding agreement between the parties.
-16-
AS
WITNESS
the
parties have caused their respective duly authorised representatives to execute
this Agreement on the day and year first before written.
The
Company
|
By:
/s/
Luo ▇▇▇ ▇▇
|
|||
|
Name:
Luo
▇▇▇ ▇▇
Title:
Chief
Executive Officer, Chief Operating Officer and Chairman of the
Board
|
|||
The
Registrar
THE
BANK OF NEW YORK
|
By: [SIGNATURE OF AUTHORIZED PERSON]
|
|||
|
Title:
|
The
Agent
THE
BANK OF NEW YORK, LONDON BRANCH
SCHEDULE
1
REGULATIONS
CONCERNING TRANSFERS AND REGISTRATION OF WARRANTS
|
1.
|
Subject
to paragraph 4 and paragraph 11 below, Warrants may be transferred
by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two (2) of its officers duly authorised
in
writing. Where the form of transfer is executed by an attorney or,
in the
case of a corporation, under seal or under the hand of two (2) of
its
officers duly authorised in writing, a copy of the relevant power
of
attorney certified by a financial institution in good standing or
a notary
public or in such other manner as the Registrar may require or, as
the
case may be, copies certified in the manner aforesaid of the documents
authorising such officers to sign and witness the affixing of the
seal
must be delivered with the form of transfer. In this Schedule,
“transferor”
shall, where the context permits or requires, include joint transferors
and shall be construed accordingly.
|
|
2.
|
The
Warrant Certificate issued in respect of the Warrants to be transferred
must be surrendered for registration, together with the form of transfer
(including any certification as to compliance with restrictions on
transfer included in such form of transfer) endorsed thereon, duly
completed and executed, at the Specified Office of the Registrar
or the
Agent, and together with such evidence as the Registrar or (as the
case
may be) the Agent may reasonably require to prove the title of the
transferor and the authority of the persons who have executed the
form of
transfer. The signature of the person effecting a transfer of a Warrant
shall conform to any list of duly authorised specimen signatures
supplied
by the Holder of such Warrant or be certified by a financial institution
in good standing, notary public or in such other manner as the Registrar
or the Agent may require.
|
|
4.
|
No
Warrantholder may require the transfer of a Warrant to be registered
following an Exercise Date in respect of such Warrant, except to
the
extent any unexercised Subscription Rights may be transferred (and
in that
case the transfer may be registered instead of or after issuance
of a new
Certificate showing the balance of such Warrantholder’s
Share).
|
|
5.
|
No
Warrantholder which has executed a form of Proxy in relation to a
Meeting
may require the transfer of a Warrant covered by such form of Proxy
to be
registered until the earlier of the conclusion of the Meeting and
its
adjournment for want of a quorum.
|
|
6.
|
The
executors or administrators of a deceased Holder of a Warrant (not
being
one of several joint Holders) and, in the case of the death of one
(1) or
more of several joint Holders, the survivor or survivors of such
joint
Holders, shall be the only persons recognised by the Company as having
any
title to such Warrant.
|
|
7.
|
Any
person becoming entitled to any Warrants in consequence of the death
or
bankruptcy of the Holder of such Warrants may, upon producing such
evidence that he holds the position in respect of which he proposes
to act
under this paragraph or of his title as the Registrar or the Agent
may
require (including legal opinions), become registered himself as
the
Holder of such Warrants or, subject to the provisions of these
Regulations, the Warrants and the Conditions as to transfer, may
transfer
such Warrants. The Company, the Registrar and the Agent shall be
at
liberty to retain any amount payable upon the Warrants to which any
person
is so entitled until such person is so registered or duly transfers
such
Warrants.
|
-18-
|
8.
|
Unless
otherwise required by him and agreed by the Company and the Registrar,
the
Holder of any Warrants shall be entitled to receive only one Warrant
Certificate in respect of his
holding.
|
|
9.
|
The
joint Holders of any Warrant shall be entitled to one (1) Warrant
Certificate only in respect of their joint holding which shall, except
where they otherwise direct, be delivered to the joint Holder whose
name
appears first in the Register in respect of the joint
holding.
|
|
10.
|
Where
there is more than one (1) transferee (to hold other than as joint
Holders), separate forms of transfer (obtainable from the Specified
Office
of the Registrar or the Agent) must be completed in respect of each
new
holding.
|
|
11.
|
A
Holder of Warrants may transfer all or part only of his holding of
Warrants, provided
that both
the amount of Warrants transferred and the amount of the balance
not
transferred are in integral multiples of 10,000. Where a Holder of
Warrants has transferred part only of his holding of Warrants, a
new
Warrant Certificate in respect of the balance of such holding will
be
delivered to him.
|
|
12.
|
The
Company, the Agent and the Registrar shall, save in the case of the
issue
of replacement Warrants pursuant to Condition 17 (Replacement
Certificates),
make no charge to the Holders for the registration of any holding
of
Warrants or any transfer thereof or for the issue of any Warrants
or for
the delivery thereof at the Specified Office of the Agent or the
Registrar
or by uninsured post to the address specified by the Holder, but
such
registration, transfer, issue or delivery shall be effected against
such
indemnity from the Holder or the transferee thereof as the Registrar
or
the Agent may require in respect of any tax or other duty of whatever
nature which may be levied or imposed in connection with such
registration, transfer, issue or
delivery.
|
|
13.
|
Provided
a transfer of a Warrant is duly made in accordance with all applicable
requirements and restrictions upon transfer and the Warrant(s) transferred
are presented to the Agent and/or the Registrar in accordance with
the
Warrant Agency Agreement and these Regulations, and subject to unforeseen
circumstances beyond the control of the Agent or the Registrar arising,
the Agent or the Registrar will, within five (5) business days of
the
request for transfer being duly made, deliver at its Specified Office
to
the transferee or despatch by registered post (at the request and
risk of
the transferee) to such address as the transferee entitled to the
Warrants
in relation to which such Warrant Certificate is issued may have
specified, a Warrant Certificate in respect of which entries have
been
made in the Register, all formalities complied with and the name
of the
transferee completed on the Warrant Certificate by or on behalf of
the
Registrar. For the purposes of this paragraph, “business
day”
means a day on which commercial banks are open for business (including
dealings in foreign currencies) in the cities in which the Registrar
and
(if applicable) the Agent have their respective Specified
Offices.
|
-19-
SCHEDULE
2
SPECIFIED
OFFICES OF THE AGENT
AND THE REGISTRAR
The
Registrar
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
|
▇▇
▇▇▇ ▇▇▇ ▇▇▇▇/5803
|
|
|
Attention:
|
Global
Corporate Trust
|
With a copy to:
The
Bank
of New York
▇▇▇▇▇
▇▇,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇’▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇
|
▇▇▇
▇▇▇▇ ▇▇▇▇
|
|
|
Attention:
|
Corporate
Trust
|
The
Agent
The
Bank
of New York, London Branch
▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
|
|
|
Attention:
|
Global
Corporate Trust
|
With
a
copy to:
The
Bank
of New York
▇▇▇▇▇
▇▇,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇’▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇
|
▇▇▇
▇▇▇▇ ▇▇▇▇
|
|
|
Attention:
|
Corporate
Trust
|
-20-