Attached files
| file | filename |
|---|---|
| S-1/A - Asia Cork Inc. | v205388_s1a.htm |
| EX-4.4 - Asia Cork Inc. | v205388_ex4-4.htm |
| EX-5.1 - Asia Cork Inc. | v205388_ex5-1.htm |
| EX-4.2 - Asia Cork Inc. | v205388_ex4-2.htm |
| EX-23.1 - Asia Cork Inc. | v205388_ex23-1.htm |
| EX-10.21 - Asia Cork Inc. | v205388_ex10-21.htm |
Exhibit
4.3 – Form of Underwriter Warrant
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Warrant
Certificate #_________
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________
Warrants
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THE
WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER, HAVE BEEN AND
SHALL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE STATE SECURITY LAWS. THE WARRANT AND SUCH SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND SHALL NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED
DISPOSITION IS THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT
AND SUCH STATE SECURITIES LAWS IN CONNECTION WITH SUCH DISPOSITION.
Asia
Cork Inc.
FORM OF
UNDERWRITER UNIT PURCHASE WARRANT
Original
Issue Date: January ____, 2011
_________
Warrants are Issued to ___________________ (“Holder”)
by Asia
Cork Inc., a Delaware corporation (hereinafter referred to as the “Company”). The
term “Holder”
shall include the Holder’s legal representatives, heirs, successors and
assigns. This Warrant may be transferred by the Holder only in
accordance with the provisions of Section
10.
1. Exercise of
Warrant.
1.1 General. For
value received by the Company from the offering of units, comprised of one (1)
share of the Company’s common stock, par value $0.0001 (“Common Stock”) and
one (1) warrant to purchase one (1) share of Common Stock (collectively, a
“Unit”),
pursuant to that certain registration statement No. 333-164893 (the “Registration
Statement” and such offering, the “Offering”), and
subject to the terms and conditions hereinafter set forth, the Holder is
entitled, upon surrender of this Warrant, (with the exercise notice form annexed
hereto as Exhibit
I (the “Exercise Notice”)
duly executed) at the office of the Company at [ADDRESS], or such other office
in the United States of which the Company shall notify the Holder hereof in
writing, to purchase up to ___________ Units (such underlying Units, the “Warrant Units” and
the Warrant Units together with the Common Stock underlying the warrants within
the Warrant Units, the “Underlying
Securities”) at an exercise price of $_______ per Unit (the “Exercise Price”),
which price is equal to one hundred and twenty percent (120%) of the public
offering price pursuant to the Offering (such price, the “Public Offering
Price”). Upon receipt of a fully executed Exercise Notice the
Company shall issue to the Holder or its designee the amount of Units indicated
in such Exercise Notice. Such amount of Units may be all or any
portion of the Warrant Units.
1.2 Net
Exercise. This Warrant may be exercised by presentation and
surrender of this Warrant to the Company at its principal executive offices with
a written notice of the holder's intention to effect a net exercise, including a
calculation of the number of Units to be issued upon such exercise in accordance
with the terms hereof (a “Net
Exercise”). In the event of a Net Exercise, in lieu of paying
the Exercise Price in cash, the holder shall surrender this Warrant for that
number of Units determined by multiplying the number of Warrant Units to which
it would otherwise be entitled by a fraction, the numerator of which shall be
the difference between the then current Market Price and the Applicable Exercise
Price, and the denominator of which shall be the then current Market Price
(defined below). “Market Price” shall
be defined as a price per share of Common Stock equal to a nine percent (9%)
discount to the closing bid price per share of Common Stock on any national
securities exchange on the day immediately prior to the date of the Exercise
Notice.
For the
purposes of example only and without any legal effect or validity, if the holder
is exercising [____] Warrants with a per Warrant Exercise Price of $[___] per
share through a Net Exercise when the Common Stock's current Market Price per
share is $[___] per share, then upon such Net Exercise the holder will receive
[____] shares of Common Stock.
1.3 Limitation on
Exercise. The Holder may exercise this Warrant according to
its terms prior to 5:00 p.m., Eastern Time, on January [__], 2016 (the “Expiration Date”);
provided, however, that the
Holder may not exercise this Warrant prior to July [__], 2011 (the “Exercisable
Date”)
2. Issuance of Stock
Certificates and Warrants. As promptly as practicable after
surrender of this Warrant, the Company shall issue and deliver to the Holder
both: (a) a certificate or certificates for the Common Stock, in certificates of
such denominations and in such names as the Holder may specify; and (b) a
warrant or warrants for one (1) share of Common Stock per warrant, in a form
substantially similar to that set forth on Exhibit II attached
hereto, and in such name(s) as the Holder may specify.
3. Payment of Applicable
Exercise Price. Payment of the Applicable Exercise Price shall
be made by check made payable to the order of the Company or wire transfer of
immediately available funds to a bank account designated by the
Company. The “Applicable Exercise
Price” shall be the Exercise Price, unless prior to the date of exercise,
the Exercise Price has been reduced to the Adjusted Exercise Price pursuant to
Section
4.1.
4. Adjustment for Dividends,
Distributions, Subdivisions, Mergers, Consolidations, Sale of Assets or
Issuances of Securities.
4.1 Manner of
Adjustment.
(a) Stock Dividends,
Distributions or Subdivisions. In the event the Company shall
issue shares of Common Stock in a stock dividend, stock distribution or
subdivision, the Applicable Exercise Price in effect immediately before such
stock dividend, stock distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased and the number of Units purchasable by exercise of
this Warrant shall be proportionately increased.
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(b) Adjustment for
Reclassification, Exchange or Substitution. In the event that
any class of securities issuable upon the exercise of this Warrant shall be
changed into the same or a different number of any class or classes of
securities, whether by capital reorganization, reclassification or otherwise
(other than any event addressed by Sections 4.1(a) or
4.1(c)), then
and in each such event the Holder shall have the right thereafter to exercise
this Warrant for the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification, or other change,
by holders of the number of securities into which such Warrant might have been
exercisable for immediately prior to such reorganization, reclassification, or
change, all subject to further adjustment as provided herein.
(c) Adjustment for Merger,
Consolidation or Sale of Assets. In the event that the Company
shall merge or consolidate with or into another entity or sell all or
substantially all of its assets, this Warrant shall thereafter be exercisable
for the kind and amount of shares of Common Stock or other securities or
property to which a holder of the number of securities deliverable upon exercise
of this Warrant would have been entitled upon such consolidation, merger or
sale; and, in such case, appropriate adjustment (as determined in good faith by
the Company’s Board of Directors) shall be made in the application of the
provisions set forth in this Section 4(c)
with respect to the rights and interest thereafter of the Holder of this
Warrant, to the end that the provisions set forth in this Section 4(c)
shall thereafter be applicable, as nearly as reasonably may be, in relation to
any shares of stock or other securities or other property thereafter deliverable
upon the exercise of this Warrant.
(d) Adjustment for Issuances of
Securities. In the event that on or prior to the date, which
is two (2) years from the date of the closing of the Offering, the Company
issues or sells any shares of stock, any convertible securities, or any warrants
or other rights to subscribe for or to purchase or any options for the purchase
of its Common Stock or any such convertible securities (other than shares of
Common Stock or options to purchase such shares issued to employees,
consultants, officers or directors in accordance with stock plans approved by
the Company’s board of directors) at an effective price per security which is
less than the Applicable Exercise Price immediately prior to such sale or
issuance (such lower effective price per share, the “Adjusted Exercise
Price”), then the Applicable Exercise Price shall be reduced effective
concurrently with such issue or sale to an amount equal to the Adjusted Exercise
Price.
4.2 Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Applicable Exercise Price pursuant to this Section 4, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Holder a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based.
4.3 Closing of
Books. The Company shall at no time close its transfer books
against the transfer of any shares of Common Stock or other securities issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely and proper issuance of such shares.
5. Covenants of the
Company. During the period within which the rights represented
by this Warrant may be exercised, the Company shall at all times have authorized
and reserved for the purpose of issue upon exercise of the rights evidenced
hereby, a sufficient number of securities of the class issuable upon exercise of
this Warrant to provide for the exercise of such rights. All
securities which may be issued upon the exercise of the rights represented by
this Warrant shall, upon issuance, be duly authorized, validly issued, fully
paid and non-assessable and free from all taxes, liens and charges with respect
to the issue thereof. Upon surrender for exercise, this Warrant shall
be canceled and shall not be reissued; provided, however, that upon
the partial exercise hereof a substitute Warrant of like tenor and date
representing the rights to subscribe for and purchase any such unexercised
portion hereof shall be issued.
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6. No Rights as Shareholder
Until Exercise. This Warrant shall not entitle the Holder to
any voting rights or any other rights as a stockholder of the Company but upon
presentation of this Warrant at the office of the Company referenced in Section 1 above
pursuant to the provisions of this Warrant, the Holder shall forthwith be deemed
a stockholder of the Company in respect of the securities for which the Holder
has so subscribed and paid.
7. No Change
Necessary. The form of this Warrant need not be changed
because of any adjustment in the Applicable Exercise Price or in the number of
securities issuable upon its exercise. A Warrant issued after any
adjustment or any partial exercise or upon replacement may continue to express
the same Applicable Exercise Price and the same number of Warrant Units
(appropriately reduced in the case of partial exercise) as are stated on this
Warrant as initially issued, and that Applicable Exercise Price and that number
of Warrant Units shall be considered to have been so changed as of the close of
business on the date of adjustment.
8. Addresses for
Notices. All notices, requests, consents and other
communications hereunder shall be in writing, either delivered by hand or mailed
by registered or certified mail, return receipt requested, or sent by facsimile,
and shall be deemed to have been duly made when delivered:
If to the
Holder, to the Holder’s address as shown on the books of the Company;
or
If to the
Company, to the address set forth on the first page of this
Warrant.
9. Substitution. In
the case this Warrant shall be mutilated, lost, stolen or destroyed, the Company
shall issue a new Warrant of like tenor and denomination and deliver the same
(a) in exchange and substitution for and upon surrender and cancellation of
any mutilated Warrant, or (b) in lieu of any Warrant lost, stolen or
destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, or destruction of such Warrant (including, without
limitation, a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction).
10. Transfer
Restrictions. This Warrant shall not be transferable by the
Holder until the Exercisable Date; provided, however, that there
shall be no limitation or restriction of any kind on the transfer of this
Warrant to (a) any successor, member, officer or manager of the Holder, (b) any
officer, manager or member of any such successor, (c) any Underwriter as defined
in the Registration Statement, or (d) members of the selling group.
11. No
Redemption. This Warrant shall not be redeemable by any party,
including without limitation the Company or any successor thereto and the Holder
shall have no obligation to redeem this Warrant.
12. Registration
Rights. The Holder shall have the right to
compel the Company one (1) time prior to the Termination Date, to register any
portion of the Underlying Securities at the expense of the
Company. The Holder shall have the right to compel the Company one
(1) time prior to the Termination Date, to register any portion of the
Underlying Securities at the expense of the Holder. For a period of
seven (7) years after the closing of the Offering, the Holder shall have
piggyback registration rights with respect to the Underlying Securities at the
expense of the Company.
13. Remedies. Each
party stipulates that the remedies at law in the event of any default or
threatened default by the other party in the performance or compliance with any
of the terms of this Warrant are and shall not be adequate, and that such terms
may be specifically enforced by a decree for that specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
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14. Governing Law; Jurisdiction
and Venue. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York without
regard to its principles of conflicts of laws. The Company and Holder
hereby agree that any dispute which may arise between them arising out of or in
connection with this Warrant shall be adjudicated before a court located in New
York City, New York County and they hereby submit to the exclusive jurisdiction
of the federal and state courts of the State of York located in New York County
with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Warrant or any acts or omissions relating to the sale of the securities
hereunder.
15. Miscellaneous. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the Holder and the
Company. For the purposes of this Warrant an email shall not be
considered such an “instrument of writing”.
[Remainder
of page intentionally left blank.]
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* *
*
IN
WITNESS WHEREOF, the parties have caused this Warrant to be executed this
______day of January, 2011.
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ASIA
CORK, INC.
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By:
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__________________,
CEO
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6
Exhibit
I
EXERCISE
NOTICE
ASIA
CORK INC.
Warrant
No. ______
Original
Issue Date: January ___, 2011
Ladies
and Gentlemen:
(1) The
undersigned hereby elects to exercise the above-referenced Warrant with respect
to ____________ Units. Capitalized terms used herein and not
otherwise defined herein have the respective meanings set forth in the
Warrant.
(2) Pursuant
to this Exercise Notice, the Company shall deliver to the Holder the number of
Units determined in accordance with the terms of the Warrant.
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HOLDER:
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(Print
name)
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By:
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Title:
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7
Exhibit
II
Form of
Warrant
8