EXECUTION COPY
WARRANT
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS IN RELIANCE ON EXEMPTIONS FROM
REGISTRATION REQUIREMENTS UNDER SAID LAWS, AND NEITHER SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.
STRONG TECHNICAL INC.
WARRANT FOR THE PURCHASE OF UP TO ________ SHARES OF
COMMON STOCK, PAR VALUE $0.001 PER SHARE
NO. [___] ________ SHARES
THIS CERTIFIES that, for value received, ________ with an address at
________________________________________________________________________________
(including any transferee, the "Holder"), is entitled to subscribe for and
purchase from Strong Technical Inc., a Delaware corporation (the "Company"),
upon the terms and conditions set forth herein, at any time or from time to time
before 5:00 P.M., New York time, on January 30, 2011 (the "Exercise Period"), up
to _____________ (_____ ) shares of Common Stock at an initial exercise price
per share equal to $0.1414467, subject to adjustment pursuant to the terms
hereof (the "Exercise Price"). As used herein, the term "this Warrant" shall
mean and include this Warrant and any Warrant or Warrants hereafter issued as a
consequence of the exercise or transfer of this Warrant in whole or in part.
This Warrant is one of a series of warrants of like tenor issued by the Company
pursuant to a Securities Purchase Agreement, dated as of January 30, 2006 (the
"Securities Purchase Agreement") among the Company, Falcon Link Investment
Limited and the purchasers named therein and initially covering an aggregate of
_________ shares of Common Stock (collectively, the "Company Warrants").
The number of shares of Common Stock issuable upon exercise of this
Warrant (the "Warrant Shares") and the Exercise Price may be adjusted from time
to time as hereinafter set forth.
1. (a) This Warrant may be exercised during the Exercise Period as to
all or a lesser number of whole Warrant Shares by the surrender of this Warrant
(with the Exercise Form attached hereto duly executed) to the Company at its
office c/o Henan Zhongpin Food Share Co., Ltd., 21 Changshe Road, Changge City,
Henan Province, The People's Republic of China, Attention: Secretary, or at such
other place as is designated in writing by the Company, together with a
certified or bank cashier's check payable to the order of the Company in an
amount equal to the Exercise Price multiplied by the number of Warrant Shares
for which this Warrant is being exercised.
(b) This Warrant may also be exercised by the Holder through a
cashless exercise, as described in this Section 1(b). This Warrant may be
exercised, in whole or in part, by (i) the delivery to the Company of a duly
executed Exercise Form specifying the number of Warrant Shares to be applied to
such exercise, and (ii) the surrender to a common carrier for overnight delivery
to the Company, or as soon as practicable following the date the Holder delivers
the Exercise Form to the Company, of this Warrant (or an indemnification
undertaking with respect to this Warrant in the case of its loss, theft or
destruction). The number of shares of Common Stock to be issued upon exercise of
this Warrant pursuant to this Section 1(b) shall equal the value of this Warrant
(or the portion thereof being canceled) computed as of the date of delivery of
this Warrant to the Company using the following formula:
Y(A-B)
X = ------
A
where:
X = the number of shares of Common Stock to be issued to the
Holder under this Section 1(b);
Y = the number of Warrant Shares identified in the
Exercise Form as being applied to the subject
exercise;
A = the Current Market Price on such date; and B = the
Exercise Price on such date
For purposes of this Section 1(b), the "CURRENT MARKET PRICE" per share
of Common Stock on any day shall mean: (i) if the principal trading market for
such securities is a national or regional securities exchange, the closing price
on such exchange on such day; or (ii) if sales prices for shares of Common Stock
are reported by the NASDAQ National Market System or NASDAQ Capital Market (or a
similar system then in use), the last reported sales price (regular way) so
reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and
if bid and ask prices for shares of Common Stock are reported in the
over-the-counter market by NASDAQ (or, if not so reported, by the National
Quotation Bureau), the average of the high bid and low ask prices so reported on
such day. Notwithstanding the foregoing, if there is no reported closing price,
last reported sales price, or bid and ask prices, as the case may be, for the
day in question, then the Current Market Price shall be determined as of the
latest date prior to such day for which such closing price, last reported sales
price, or bid and ask prices, as the case may be, are available, unless such
securities have not been
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traded on an exchange or in the over-the-counter market for 30 or more days
immediately prior to the day in question, in which case the Current Market Price
shall be determined in good faith by, and reflected in a formal resolution of,
the Board of Directors of the Company.
The Company acknowledges and agrees that this Warrant was issued on
January 30, 2006 (the "Issuance Date"). Consequently, the Company acknowledges
and agrees that, if the Holder conducts a cashless exercise pursuant to this
Section 1(b), the period during which the Holder held this Warrant may, for
purposes of Rule 144 promulgated under the Securities Act of 1933, as amended
(the "ACT"), be "tacked" to the period during which the Holder holds the Warrant
Shares received upon such cashless exercise.
Notwithstanding the foregoing, the Holder may conduct a cashless
exercise pursuant to this Section 1(b) only after the first anniversary of the
Issuance Date, and then only in the event that a registration statement covering
the resale of the Warrant Shares is not then effective and available for resales
at the time that the Holder wishes to conduct such cashless exercise.
2. Upon each exercise of the Holder's rights to purchase Warrant
Shares, the Holder shall be deemed to be the holder of record of the Warrant
Shares issuable upon such exercise, notwithstanding that the transfer books of
the Company shall then be closed or certificates representing such Warrant
Shares shall not then have been actually delivered to the Holder. As soon as
practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the right of the Holder to purchase the balance of the
Warrant Shares (or portions thereof) subject to purchase hereunder.
If by the third trading day following delivery of an Exercise
Form ("Delivery Date") the Company fails to deliver the required number of
Warrant Shares in the manner required pursuant to this Section 2, then the
Holder will have the right to rescind such exercise.
If by the Delivery Date the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to this
Section 2, and if after such date and prior to the receipt of such Warrant
Shares, shares of Common Stock are purchased by or for the account of the Holder
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a "Buy-In"), then the
Company shall (1) pay in cash to the Holder the amount by which (x) the Holder's
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Warrant Shares that the Company was required to deliver to the Holder
in connection with such exercise by (B) the closing price of the Common Stock on
the date the Exercise Form was delivered and (2) at the option of the Holder,
either reinstate the number of Warrant Shares for which such exercise was not
honored or deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its
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exercise and delivery obligations hereunder. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder in respect
of the Buy-In.
3. (a) Any Warrants issued upon the registration of transfer or
exercise in part of this Warrant shall be numbered and shall be registered in a
Warrant Register as they are issued. The Company shall be entitled to treat the
registered holder of any Warrant on the Warrant Register as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. The transfer of this Warrant may be registered on the books of the
Company upon delivery thereof duly endorsed by the Holder or by his duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. In all cases of transfer by an
attorney, executor, administrator, guardian or other legal representative, due
authority shall be produced. Upon any registration of transfer, the Company
shall deliver a new Warrant or Warrants to the person entitled thereto. This
Warrant may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof), upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company may require prior
to registering any transfer of a Warrant an opinion of counsel reasonably
satisfactory to the Company that such transfer complies with the provisions of
the Act, and the rules and regulations thereunder.
(b) The Holder acknowledges that he has been advised by the
Company that neither this Warrant nor the Warrant Shares have been registered
under the Act, that this Warrant is being or has been issued and the Warrant
Shares may be issued on the basis of the statutory exemption provided by Section
4(2) of the Act or Rule 506 of Regulation D promulgated thereunder, or both,
relating to transactions by an issuer not involving any public offering, and
that the Company's reliance thereon is based in part upon the representations
made by the original Holder in the Securities Purchase Agreement. The Holder
acknowledges that he has been informed by the Company of, or is otherwise
familiar with, the nature of the limitations imposed by the Act and the rules
and regulations thereunder on the transfer of securities. In particular, the
Holder agrees that no sale, assignment or transfer of this Warrant or the
Warrant Shares issuable upon exercise hereof shall be valid or effective, and
the Company shall not be required to give any effect to any such sale,
assignment or transfer, unless (i) the sale, assignment or transfer of this
Warrant or such Warrant Shares is registered under the Act, it being understood
that neither this Warrant nor such Warrant Shares are currently registered for
sale and that the Company has no obligation or intention to so register this
Warrant or such Warrant Shares except as specifically provided for in that
certain Registration Rights Agreement dated as of January 30, 2006 by and among
the Company, the Holder and certain other parties (the "Registration Rights
Agreement"), or (ii) this Warrant or such Warrant Shares are sold, assigned or
transferred in accordance with all the requirements and limitations of Rule 144
under the Act, it being understood that Rule 144 is not available at the time of
the original issuance of this Warrant for the sale of this Warrant or such
Warrant Shares and that there can be no
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assurance that Rule 144 sales will be available at any subsequent time, or (iii)
such sale, assignment, or transfer is otherwise exempt from registration under
the Act in the opinion of counsel reasonably acceptable to the Company.
4. The Company shall at all times reserve and keep available out its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the rights to purchase all Warrant Shares granted pursuant to
the Warrants, such number of shares of Common Stock as shall, from time to time,
be sufficient therefor. The Company covenants that all shares of Common Stock
issuable upon exercise of this Warrant, upon receipt by the Company of the full
Exercise Price therefor, shall be validly issued, fully paid, nonassessable, and
free of preemptive rights.
5. (a) In case the Company shall at any time after the date the
Warrants were first issued (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a smaller number
of shares, or (iv) issue any shares of its capital stock by reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
then, in each case, the Exercise Price, and the number of Warrant Shares
issuable upon exercise of this Warrant, in effect at the time of the record date
for such dividend or of the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which, if such Warrant had been exercised immediately prior to such time, he
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) In case the Company shall issue or fix a record date for the
issuance to all holders of Common Stock of rights, options, or warrants to
subscribe for or purchase Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share (or having a conversion or
exchange price per share, if a security convertible into or exchangeable for
Common Stock) less than the then applicable Exercise Price per share on such
record date, then, in each case, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common Stock
so to be offered (or the aggregate initial conversion or exchange price of the
convertible or exchangeable securities so to be offered) would purchase at such
Exercise Price and the denominator of which shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock to be offered for subscription or purchase (or into which
the convertible or exchangeable securities so to be offered are initially
convertible or exchangeable). Such adjustment shall become effective at the
close of business on such record date; provided, however, that, to the extent
the shares of Common Stock (or securities convertible into or exchangeable for
shares of Common Stock) are not delivered, the Exercise Price shall be
readjusted after the expiration of such rights, options, or warrants (but only
with respect to warrants exercised after such expiration), to the
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Exercise Price which would then be in effect had the adjustments made upon the
issuance of such rights, options, or warrants been made upon the basis of
delivery of only the number of shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock) actually issued. In case any
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive.
(c) In case the Company shall distribute to all holders of Common
Stock (including any such distribution made to the stockholders of the Company
in connection with a consolidation or merger in which the Company is the
continuing corporation) evidences of its indebtedness, cash (other than any cash
dividend which, together with any cash dividends paid within the 12 months prior
to the record date for such distribution, does not exceed 5% of the then
applicable Exercise Price at the record date for such distribution) or assets
(other than distributions and dividends payable in shares of Common Stock), or
rights, options or warrants to subscribe for or purchase Common Stock, or
securities convertible into or exchangeable for shares of Common Stock
(excluding those with respect to the issuance of which an adjustment of the
Exercise Price is provided pursuant to Section 5(b) hereof), then, in each case,
the Exercise Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to the record date for the determination of stockholders
entitled to receive such distribution by a fraction, the numerator of which
shall be the then applicable Exercise Price per share of Common Stock on such
record date, less the fair market value (as determined in good faith by, and
reflected in a formal resolution of, the board of directors of the Company,
whose determination shall be conclusive absent manifest error) of the portion of
the evidences of indebtedness or assets so to be distributed, or of such rights,
options or warrants or convertible or exchangeable securities, or the amount of
such cash, applicable to one share, and the denominator of which shall be such
Exercise Price per share of Common Stock. Such adjustment shall become effective
at the close of business on such record date.
(d) No adjustment in the Exercise Price shall be required if such
adjustment is less than $.01; provided, however, that any adjustments which by
reason of this Section 5(d) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 5 shall be made to the nearest cent or to the nearest one-thousandth of
a share, as the case may be.
(e) In any case in which this Section 5 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer, until the occurrence of such
event, issuing to the Holder, if the Holder exercised this Warrant after such
record date, the shares of Common Stock, if any, issuable upon such exercise
over and above the shares of Common Stock, if any, issuable upon such exercise
on the basis of the Exercise Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to the Holder a due bill or other
appropriate instrument evidencing the Holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
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(f) Upon each adjustment of the Exercise Price as a result of the
calculations made in Sections 5(b) or 5(c) hereof, this Warrant shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares (calculated to the nearest thousandth) obtained by multiplying (A) the
number of shares purchasable upon exercise of this Warrant prior to such
adjustment by (B) a fraction, the numerator of which is the Exercise Price in
effect prior to such adjustment and the denominator of which is the Exercise
Price in effect immediately after such adjustment.
(g) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its address as it shall
appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof, which officer's certificate shall be conclusive
evidence of the correctness of any such adjustment absent manifest error.
(h) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share would be issuable on the exercise of this
Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the Exercise Price
of such share of Common Stock on the date of exercise of this Warrant.
6. (a) In case of any consolidation or combination with or merger of
the Company with or into another corporation or entity (other than a merger,
consolidation or combination in which the Company is the surviving or continuing
corporation), or in case of any sale, lease or conveyance to another
corporation, entity or person of the property and assets of any nature of the
Company as an entirety or substantially as an entirety, or any compulsory share
exchange, pursuant to which share exchange the Common Stock is converted into
other securities, cash or other property (collectively an "Extraordinary
Event"), then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby the Holder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of this Warrant, such shares of stock, securities or assets as
would have been issuable or payable with respect to or in exchange for a number
of Warrant Shares equal to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant, had such Extraordinary Event not taken
place, and in any such case appropriate provision shall be made with respect to
the rights and interests of the Holder to the end that the provisions hereof
(including, without limitation, provision for adjustment of the Exercise Price)
shall thereafter be applicable, as nearly equivalent as may be practicable in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof. The Company shall not effect any such Extraordinary
Event unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
Extraordinary Event shall assume the
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obligation to deliver to the Holder, at the last address of the Holder appearing
on the books of the Company, such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
purchase, and the other obligations under this Warrant. The provisions of this
paragraph shall similarly apply to successive Extraordinary Events.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (other than a change in par
value or from no par value to a specified par value, or as a result of a
subdivision or combination, but including any change in the shares into two or
more classes or series of shares), or in case of any consolidation, combination
or merger of another corporation or entity into the Company in which the Company
is the continuing corporation and in which there is a reclassification or change
(including a change to the right to receive cash or other property) of the
shares of Common Stock (other than a change in par value, or from no par value
to a specified par value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or series of
shares), the Holder shall have the right thereafter to receive upon exercise of
this Warrant solely the kind and amount of shares of stock and other securities,
property or cash, or any combination thereof receivable upon such
reclassification, change, consolidation, combination or merger by a holder of
the number of shares of Common Stock for which this Warrant might have been
exercised immediately prior to such reclassification, change, consolidation,
combination or merger. Thereafter, appropriate provision shall be made for
adjustments, which shall be as nearly equivalent as practicable to the
adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, combinations, mergers, sales, leases or conveyances.
7. In case at any time the Company shall propose to:
(a) pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
(b) issue any rights, warrants or other securities to all holders
of Common Stock entitling them to purchase any additional shares of Common Stock
or any other rights, warrants or other securities; or
(c) effect any reclassification or change of outstanding shares of
Common Stock, or any consolidation, merger, sale, lease or conveyance of
property or other Extraordinary Event; or
(d) effect any liquidation, dissolution or winding-up of the
Company; or
(e) take any other action which would cause an adjustment to the
Exercise Price;
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then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such dividend, distribution, rights,
warrants or other securities are to be determined, (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up, or (iii) the date of such action which would require
an adjustment to the Exercise Price.
8. The issuance of any shares or other securities upon the exercise of
this Warrant, and the delivery of certificates or other instruments representing
such shares or other securities, shall be made without charge to the Holder for
any tax or other charge in respect of such issuance. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the Holder and the Company shall not be required to issue or
deliver any such certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
9. Unless registered pursuant to the Registration Rights Agreement, the
Warrant Shares issued upon exercise of this Warrant shall be subject to a stop
transfer order and the certificate or certificates evidencing such Warrant
Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS, AND NEITHER SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
(2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER
OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS."
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10. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), the Company shall execute and deliver to the Holder
thereof a new Warrant of like date, tenor and denomination.
11. The holder of this Warrant shall not have solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
12. Any term of this Warrant may be amended or waived upon the written
consent of the Company and the holders of Company Warrants representing at least
50% of the number of shares of Common Stock then subject to all outstanding
Company Warrants (the "Majority Holders"); provided, that (x) any such amendment
or waiver must apply to all Company Warrants; and (y) the number of Warrant
Shares subject to this Warrant, the Exercise Price and the Exercise Period may
not be amended, and the right to exercise this Warrant may not be altered or
waived, without the written consent of the Holder.
13. This Warrant has been negotiated and consummated in the State of
New York and shall be governed by, and construed in accordance with the laws of
the State of New York applicable to contracts made and performed within such
State, without regard to principles governing conflicts of law. The Company and,
by accepting this Warrant, the Holder, each irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Warrant and the transactions contemplated hereby. Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under the Securities Purchase Agreement. The Company and, by
accepting this Warrant, the Holder, each irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. The Company and, by accepting this Warrant, the
Holder, each irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. EACH OF THE COMPANY AND, BY ITS
ACCEPTANCE HEREOF, THE HOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY
IN ANY LITIGATION WITH RESPECT TO THIS WARRANT AND REPRESENTS THAT COUNSEL HAS
BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
[14. The Company shall not effect the exercise of this Warrant, and no
person who is a holder of this Warrant shall have the right to exercise this
Warrant, to the extent that after giving effect to such exercise, such person
(together with such person's affiliates) would beneficially own in excess of
9.999% of the shares of the Common Stock outstanding immediately after giving
effect to such exercise. For purposes of the foregoing sentence, the aggregate
number of shares of Common Stock beneficially owned by such person and its
affiliates shall include, without limitation, the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which the
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determination of such sentence is being made, but shall exclude shares of Common
Stock which would be issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by such person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted portion of any
other securities of the Company beneficially owned by such person and its
affiliates (including, without limitation, shares of Preferred Stock, any
debentures, convertible notes or other convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein. Except as set forth in the preceding sentence, for purposes of
this paragraph, beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act. For purposes of this Warrant, in determining
the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as reflected in (1) the Company's
most recent Form 10-Q, Form 10-K or other public filing with the Commission, as
the case may be, (2) a more recent public announcement by the Company, or (3)
any other notice by the Company or its transfer agent setting forth the number
of shares of Common Stock outstanding. For any reason at any time, upon the
written or oral request of the Holder of this Warrant, the Company shall within
five business days confirm orally and in writing to the Holder of this Warrant
the number of shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Company by the Holder of this
Warrant and its affiliates since the date as of which such number of outstanding
shares of Common Stock was reported. In effecting the exercise of this Warrant,
the Company shall be entitled to rely on a representation by the Holder of this
Warrant as to the number of shares that it beneficially owns for purposes of the
above 9.999% limitation calculation.]*
Dated: _________, 200_
STRONG TECHNICAL INC.
By:
---------------------------------------
Name:
Title:
* Section 14 shall be deleted from any Warrant issued by the Company to Special
Situations Fund III QP, L.P. or its affiliates.
11
STRONG TECHNICAL INC.
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the attached Warrant.)
To: Strong Technical Inc.
21 Changshe Road
Changge City, Henan Province
The People's Republic of China
Attention: Secretary
FOR VALUE RECEIVED, _______________ hereby sells, assigns, and
transfers unto _______________ that certain Warrant (Number UW-______) to
purchase __________ shares of Common Stock, par value $0.001 per share, of
Strong Technical Inc. (the "Company"), together with all right, title, and
interest therein, and does hereby irrevocably constitute and appoint
________________________ attorney to transfer such Warrant on the books of the
Company, with full power of substitution.
Dated: _____________________________
Signature:
--------------------------------
NOTICE:
The signature on the foregoing Assignment must correspond to the name
as written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatsoever.
STRONG TECHNICAL INC.
EXERCISE FORM
(To be completed and signed only upon exercise of the Warrants)
To: Strong Technical Inc.
21 Changshe Road
Changge City, Henan Province
The People's Republic of China
Attention: Secretary
The undersigned hereby exercises his or its rights to purchase
___________ Warrant Shares covered by the within Warrant and tenders payment
herewith in the amount of $_________ by [tendering cash or delivering a
certified check or bank cashier's check, payable to the order of the Company]
[surrendering ______ shares of Common Stock received upon exercise of the
attached Warrant, which shares have a Current Market Price equal to such
payment] in accordance with the terms thereof, and requests that certificates
for such securities be issued in the name of, and delivered to:
___________________________________________
___________________________________________
___________________________________________
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated: ____________, ________ Name: ______________________________
(Please Print)
Address: ___________________________
___________________________
___________________________
___________________________
(Signature)