WARRANT AGREEMENT
Agreement made as of _____________, 2005 between Chardan China
Acquisition Corp. II, a Delaware corporation, with offices at 625 Broadway,
Suite 1111, San Diego, California 92101 ("Company"), and Continental Stock
Transfer & Trust Company, a New York corporation, with offices at 17 Battery
Place, New York, New York 10004 ("Warrant Agent").
WHEREAS, the Company is engaged in a public offering ("Public
Offering") of Units ("Units") and, in connection therewith, has determined
to issue and deliver up to (i) 9,200,000 Warrants ("Public Warrants") to the
public investors, and (ii) 600,000 Warrants to EarlyBirdCapital, Inc. ("EBC")
or its designees ("Representative's Warrants" and, together with the Public
Warrants, the "Warrants"), each of such Public Warrants evidencing the right
of the holder thereof to purchase one share of the Company's common stock,
par value $.0001 per share ("Common Stock"), for $5.00, subject to adjustment
as described herein; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement on Form S-1, No. 333-__________
("Registration Statement"), for the registration, under the Securities Act of
1933, as amended ("Act") of, among other securities, the Warrants and the
Common Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and
the respective rights, limitation of rights, and immunities of the Company,
the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant
Agent to act as agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such appointment and agrees to perform the same in accordance
with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall be issued in registered form
only, shall be in substantially the form of Exhibit A hereto, the provisions
of which are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board or President and Treasurer,
Secretary or Assistant Secretary of the Company and shall bear a facsimile of
the Company's seal. In the event the person whose facsimile signature has
been placed upon any Warrant shall have ceased to serve in the capacity in
which such person signed the Warrant before such Warrant is issued, it may be
issued with the same effect as if he or she had not ceased to be such at the
date of issuance.
2.2. Effect of Countersignature. Unless and until countersigned by
the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and
of no effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall maintain
books ("Warrant Register"), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the
names of the respective holders thereof in such denominations and otherwise
in accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder. Prior to due presentment for
registration of transfer of any Warrant, the Company and the Warrant Agent
may deem and treat the person in whose name such Warrant shall be registered
upon the Warrant Register ("registered holder"), as the absolute owner of
such Warrant and of each Warrant represented thereby (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
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2.4. Detachability of Warrants. The securities comprising the Units
will not be separately transferable until 90 days after the date hereof
unless EBC informs the Company of its decision to allow earlier separate
trading, but in no event will EBC allow separate trading of the securities
comprising the Units until the Company files a Current Report on Form 8-K
which includes an audited balance sheet reflecting the receipt by the Company
of the gross proceeds of the Public Offering including the proceeds received
by the Company from the exercise of the Underwriter's over-allotment option,
if the over-allotment option is exercised prior to the filing of the Form
8-K.
2.5 Warrants and Representative's Warrants. The Representative's
Warrants shall have the same terms and be in the same form as the Public
Warrants except with respect to the Warrant Price as set forth below in
Section 3.1.
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each Public Warrant shall, when countersigned by
the Warrant Agent, entitle the registered holder thereof, subject to the
provisions of such Public Warrant and of this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated therein, at the
price of $5.00 per whole share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1. Each
Representative's Warrant shall, when countersigned by the Warrant Agent,
entitle the registered holder thereof, subject to the provisions of such
Representative's Warrant and of this Warrant Agreement, to purchase from the
Company the number of shares of Common Stock stated therein, at the price of
$___ per whole share, subject to the adjustments provided in Section 4
hereof. The term "Warrant Price" as used in this Warrant Agreement refers to
the price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower the
Warrant Price at any time prior to the Expiration Date.
3.2. Duration of Warrants. A Warrant may be exercised only during the
period ("Exercise Period") commencing on the later of (i) the consummation by
the Company of a merger, capital stock exchange, asset acquisition or other
similar business combination ("Business Combination") (as described more
fully in the Company's Registration Statement) and (ii) __________, 2006, and
terminating at 5:00 p.m., New York City time on the earlier to occur of
(i) ___________, 2009 or (ii) the date fixed for redemption of the Warrants
as provided in Section 6 of this Agreement ("Expiration Date"). Except with
respect to the right to receive the Redemption Price (as set forth in Section
6 hereunder), each Warrant not exercised on or before the Expiration Date
shall become void, and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the duration
of the Warrants by delaying the Expiration Date.
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3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant
and this Warrant Agreement, a Warrant, when countersigned by the Warrant
Agent, may be exercised by the registered holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its successor as
Warrant Agent, in the Borough of Manhattan, City and State of New York, with
the subscription form, as set forth in the Warrant, duly executed, and by
paying in full, in lawful money of the United States, in cash, good certified
check or good bank draft payable to the order of the Company (or as otherwise
agreed to by the Company), the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all applicable taxes
due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2. Issuance of Certificates. As soon as practicable
after the exercise of any Warrant and the clearance of the funds in payment
of the Warrant Price, the Company shall issue to the registered holder of
such Warrant a certificate or certificates for the number of full shares of
Common Stock to which he is entitled, registered in such name or names as may
be directed by him, her or it, and if such Warrant shall not have been
exercised in full, a new countersigned Warrant for the number of shares as to
which such Warrant shall not have been exercised. Notwithstanding the
foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Warrant unless a registration statement under
the Act with respect to the Common Stock is effective. Warrants may not be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful.
3.3.3. Valid Issuance. All shares of Common Stock issued
upon the proper exercise of a Warrant in conformity with this Agreement shall
be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on
which the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which
the stock transfer books are open.
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3.3.5. Intentionally Omitted.
4. Adjustments.
4.1. Stock Dividends - Split-Ups. If after the date hereof, and
subject to the provisions of Section 4.6 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares of
Common Stock, or by a split-up of shares of Common Stock, or other similar
event, then, on the effective date of such stock dividend, split-up or
similar event, the number of shares of Common Stock issuable on exercise of
each Warrant shall be increased in proportion to such increase in outstanding
shares of Common Stock.
4.2. Aggregation of Shares. If after the date hereof, and subject to
the provisions of Section 4.6, the number of outstanding shares of Common
Stock is decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on
the effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be decreased in proportion to such
decrease in outstanding shares of Common Stock.
4.3 Adjustments in Exercise Price. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is adjusted, as
provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted
(to the nearest cent) by multiplying such Warrant Price immediately prior to
such adjustment by a fraction (x) the numerator of which shall be the number
of shares of Common Stock purchasable upon the exercise of the Warrants
immediately prior to such adjustment, and (y) the denominator of which shall
be the number of shares of Common Stock so purchasable immediately thereafter.
4.4. Replacement of Securities upon Reorganization, etc. In case of
any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1 or 4.2 hereof or that
solely affects the par value of such shares of Common Stock), or in the case
of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or in the case of
any sale or conveyance to another corporation or entity of the assets or
other property of the Company as an entirety or substantially as an entirety
in connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in the Warrants and in lieu of the shares
of Common Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented thereby, the kind and
amount of shares of stock or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or
consolidation, or upon a dissolution following any such sale or transfer,
that the Warrant holder would have received if such Warrant holder had
exercised his, her or its Warrant(s) immediately prior to such event; and if
any reclassification also results in a change in shares of Common Stock
covered by Section 4.1 or 4.2, then such adjustment shall be made pursuant to
Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
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4.5. Notices of Changes in Warrant. Upon every adjustment of the
Warrant Price or the number of shares issuable upon exercise of a Warrant,
the Company shall give written notice thereof to the Warrant Agent, which
notice shall state the Warrant Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such
price upon the exercise of a Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4,
then, in any such event, the Company shall give written notice to each
Warrant holder, at the last address set forth for such holder in the warrant
register, of the record date or the effective date of the event. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such event.
4.6. No Fractional Shares. Notwithstanding any provision contained in
this Warrant Agreement to the contrary, the Company shall not issue
fractional shares upon exercise of Warrants. If, by reason of any adjustment
made pursuant to this Section 4, the holder of any Warrant would be entitled,
upon the exercise of such Warrant, to receive a fractional interest in a
share, the Company shall, upon such exercise, round up to the nearest whole
number the number of the shares of Common Stock to be issued to the Warrant
holder.
4.7. Form of Warrant. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as
is stated in the Warrants initially issued pursuant to this Agreement.
However, the Company may at any time in its sole discretion make any change
in the form of Warrant that the Company may deem appropriate and that does
not affect the substance thereof, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
or otherwise, may be in the form as so changed.
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5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions
for transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered
by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered
to the Warrant Agent, together with a written request for exchange or
transfer, and thereupon the Warrant Agent shall issue in exchange therefor
one or more new Warrants as requested by the registered holder of the
Warrants so surrendered, representing an equal aggregate number of Warrants;
provided, however, that in the event that a Warrant surrendered for transfer
bears a restrictive legend, the Warrant Agent shall not cancel such Warrant
and issue new Warrants in exchange therefor until the Warrant Agent has
received an opinion of counsel for the Company stating that such transfer may
be made and indicating whether the new Warrants must also bear a restrictive
legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4. Service Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms
of this Agreement, the Warrants required to be issued pursuant to the
provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
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6. Redemption.
6.1. Redemption. Subject to Section 6.4 hereof, not less than all of
the outstanding Warrants may be redeemed, at the option of the Company, at
any time after they become exercisable and prior to their expiration, at the
office of the Warrant Agent, upon the notice referred to in Section 6.2., at
the price of $.01 per Warrant ("Redemption Price"), provided that the last
sales price of the Common Stock has been at least $8.50 per share (subject to
adjustment in accordance with Section 4 hereof), on each of twenty (20)
trading days within any thirty (30)-trading day period ending on the third
business day prior to the date on which notice of redemption is given. The
provisions of this Section 6.1 may not be modified, amended or deleted
without the prior written consent of EBC.
6.2. Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a
date for the redemption. Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than 30 days prior to the date
fixed for redemption to the registered holders of the Warrants to be redeemed
at their last addresses as they shall appear on the registration books. Any
notice mailed in the manner herein provided shall be conclusively presumed to
have been duly given whether or not the registered holder received such
notice.
6.3. Exercise After Notice of Redemption. The Warrants may be
exercised, for cash at any time after notice of redemption shall have been
given by the Company pursuant to Section 6.2. hereof and prior to the time
and date fixed for redemption. On and after the redemption date, the record
holder of the Warrants shall have no further rights except to receive, upon
surrender of the Warrants, the Redemption Price.
6.4 Exclusion of Certain Warrants.
6.4.1 The Company understands that the redemption rights provided
for by this Section 6 apply only to outstanding Warrants. To the extent a person
holds rights to purchase Warrants, such purchase rights shall not be
extinguished by redemption. However, once such purchase rights are exercised,
the Company may redeem the Warrants issued upon such exercise provided that the
criteria for redemption is met. The provisions of this Section 6.4 may not be
modified, amended or deleted without the prior written consent of EBC.
6.4.2 Any of the up to 1,000,000 Warrants purchased by the Company's
directors and several individuals affiliated with companies they are associated
with at prices not to exceed $0.75 per Warrant within the forty trading day
period following separate trading of the Warrants shall not be redeemable by the
Company as long as such Warrants continue to be held by such individuals or
their affiliates. However, once such individuals or their affiliates transfer
such Warrants, such Warrants shall then be redeemable by the Company pursuant to
Section 6 hereof.
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7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Stockholder. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the
Company, including, without limitation, the right to receive dividends, or
other distributions, exercise any preemptive rights to vote or to consent or
to receive notice as stockholders in respect of the meetings of stockholders
or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent
may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the surrender thereof), issue a new Warrant of like denomination, tenor, and
date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new
Warrant shall constitute a substitute contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant
shall be at any time enforceable by anyone.
7.3. Reservation of Common Stock. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Common Stock. The Company agrees that prior to
the commencement of the Exercise Period, it shall file with the Securities
and Exchange Commission a post-effective amendment to the Registration
Statement, or a new registration statement, for the registration, under the
Act, of, and it shall take such action as is necessary to qualify for sale,
in those states in which the Warrants were initially offered by the Company,
the Common Stock issuable upon exercise of the Warrants. In either case, the
Company will use its best efforts to cause the same to become effective and
to maintain the effectiveness of such registration statement until the
expiration of the Warrants in accordance with the provisions of this
Agreement. The provisions of this Section 7.4 may not be modified, amended
or deleted without the prior written consent of EBC.
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8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon
the exercise of Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties and
be discharged from all further duties and liabilities hereunder after giving
sixty (60) days' notice in writing to the Company. If the office of the
Warrant Agent becomes vacant by resignation or incapacity to act or
otherwise, the Company shall appoint in writing a successor Warrant Agent in
place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in writing
of such resignation or incapacity by the Warrant Agent or by the holder of
the Warrant (who shall, with such notice, submit his Warrant for inspection
by the Company), then the holder of any Warrant may apply to the Supreme
Court of the State of New York for the County of New York for the appointment
of a successor Warrant Agent at the Company's cost. Any successor Warrant
Agent, whether appointed by the Company or by such court, shall be a
corporation organized and existing under the laws of the State of New York,
in good standing and having its principal office in the Borough of Manhattan,
City and State of New York, and authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal
or state authority. After appointment, any successor Warrant Agent shall be
vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon
request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully
and effectually vesting in and confirming to such successor Warrant Agent all
such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the
Common Stock not later than the effective date of any such appointment.
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8.2.3. Merger or Consolidation of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may
be consolidated or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party shall be the successor Warrant
Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant
Agent reasonable remuneration for its services as such Warrant Agent
hereunder and will reimburse the Warrant Agent upon demand for all
expenditures that the Warrant Agent may reasonably incur in the execution of
its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform,
execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the
carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the
performance of its duties under this Warrant Agreement, the Warrant Agent
shall deem it necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the President or Chairman of the Board
of the Company and delivered to the Warrant Agent. The Warrant Agent may
rely upon such statement for any action taken or suffered in good faith by it
pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable
hereunder only for its own negligence, willful misconduct or bad faith. The
Company agrees to indemnify the Warrant Agent and save it harmless against
any and all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the execution of
this Agreement except as a result of the Warrant Agent's negligence, willful
misconduct, or bad faith.
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8.4.3. Exclusions. The Warrant Agent shall have no
responsibility with respect to the validity of this Agreement or with respect
to the validity or execution of any Warrant (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant; nor
shall it be responsible to make any adjustments required under the provisions
of Section 4 hereof or responsible for the manner, method, or amount of any
such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or reservation of
any shares of Common Stock to be issued pursuant to this Agreement or any
Warrant or as to whether any shares of Common Stock will when issued be valid
and fully paid and nonassessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of Common Stock through the exercise of Warrants.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this
Warrant Agreement to be given or made by the Warrant Agent or by the holder
of any Warrant to or on the Company shall be sufficiently given when so
delivered if by hand or overnight delivery or if sent by certified mail or
private courier service within five days after deposit of such notice,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Chardan China Acquisition Corp. II
625 Broadway
Suite 1111
San Diego, California 92101
Attn: Chairman
Any notice, statement or demand authorized by this Agreement to be given or
made by the holder of any Warrant or by the Company to or on the Warrant
Agent shall be sufficiently given when so delivered if by hand or overnight
delivery or if sent by certified mail or private courier service within five
days after deposit of such notice, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company), as
follows:
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Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Blank Rome LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: Robert J. Mittman, Esq.
and
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and
EarlyBirdCapital, Inc.
275 Madison Avenue, Suite 1203
New York, New York 10016
Attn: Steven Levine
9.3. Applicable law. The validity, interpretation, and performance of
this Agreement and of the Warrants shall be governed in all respects by the
laws of the State of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. The Company hereby agrees that any action, proceeding
or claim against it arising out of or relating in any way to this Agreement
shall be brought and enforced in the courts of the State of New York or the
United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience forum. Any such
process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in
Section 9.2 hereof. Such mailing shall be deemed personal service and shall
be legal and binding upon the Company in any action, proceeding or claim.
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9.4. Persons Having Rights under this Agreement. Nothing in this
Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the
registered holders of the Warrants and, for the purposes of Sections 6.1,
6.4, 7.4 and 9.2 hereof, EBC, any right, remedy, or claim under or by reason
of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. EBC shall be deemed to be a third-party
beneficiary of this Agreement with respect to Sections 6.1, 6.4, 7.4 and 9.2
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive
benefit of the parties hereto (and EBC with respect to the Sections 6.1, 6.4,
7.4 and 9.2 hereof) and their successors and assigns and of the registered
holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this Agreement
shall be available at all reasonable times at the office of the Warrant Agent
in the Borough of Manhattan, City and State of New York, for inspection by
the registered holder of any Warrant. The Warrant Agent may require any such
holder to submit his Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but
one and the same instrument.
9.7. Effect of Headings. The Section headings herein are for
convenience only and are not part of this Warrant Agreement and shall not
affect the interpretation thereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Attest: CHARDAN CHINA ACQUISITION CORP. II
_______________ By: _________________________________
Name: Dr. Richard D. Propper
Title: Chairman
Attest: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
______________ By: _________________________________
Name: Steven Nelson
Title: Chairman
15