Exhibit 4.1
NEITHER THESE SECURITIES
NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE
SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT SECURED BY SUCH SECURITIES.
CHINA NUTRIFRUIT
GROUP LIMITED
WARRANT
Warrant No.
Original Issue Date:
October 10, 2008
China Nutrifruit Group
Limited, a Nevada corporation (the “Company” ),
hereby certifies that, as partial compensation for placement agent
services, _______________________ or its registered assigns (the
“Holder” ), is entitled to purchase from the
Company up to a total of ________________ shares of Common Stock
(each such share, a “Warrant Share” and all such
shares, the “Warrant Shares” ), at any time and
from time to time from and after the Original Issue Date and
through and including October 9, 2011 (the “Expiration
Date” ), and subject to the following terms and
conditions:
1.
Definitions . As used in this Warrant, the
following terms shall have the respective definitions set forth in
this Section 1.
“Affiliate”
means any Person that,
directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as
such terms are used in and construed under Rule 144.
“Business
Day” means any day except Saturday,
Sunday and any day which is a federal legal holiday or a day on
which banking institutions in the State of New York are authorized
or required by law or other governmental action to
close.
“Common
Stock” means the common stock of the
Company, $0.001 par value per share, and any securities into which
such common stock may hereafter be reclassified or for which it may
be exchanged as a class.
“Exchange
Act” means the Securities Exchange Act of
1934, as amended.
“Exercise
Price” means $2.78, subject to adjustment
in accordance with Section 9.
“Fundamental
Transaction” means any of the following: (1) the
Company effects any merger or consolidation of the Company with or
into another Person, (2) the Company effects any sale of all or
substantially all of its assets in one or a series of related
transactions, (3) any tender offer or exchange offer (whether by
the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or
property.
“New York
Courts” means the state and federal courts
sitting in the City of New York, Borough of Manhattan.
“Original Issue
Date” means the Original Issue Date first
set forth on the first page of this Warrant.
“Person”
means an individual or
corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other
entity of any kind.
“Rule
144” means Rule 144 promulgated by the
Securities and Exchange Commission pursuant to the Securities Act,
as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Securities and Exchange
Commission having substantially the same effect as such
Rule.
“Securities
Act” means the Securities Act of 1933, as
amended.
“Subsidiary”
means any
“significant subsidiary” as defined in Rule 1-02(w) of
Regulation S-X promulgated by the Securities and Exchange
Commission under the Exchange Act.
“Trading
Day” means (i) a day on which the Common
Stock is traded on a Trading Market, or (ii) if the Common Stock is
not quoted on any Trading Market, a day on which the Common Stock
is quoted in the over-the-counter market as reported by the Pink
Sheets LLC (or any similar organization or agency succeeding to its
functions of reporting prices); provided, that in the event that
the Common Stock is not listed or quoted as set forth in (i) or
(ii) hereof, then Trading Day shall mean a Business Day.
“Trading
Market” means whichever of the New York
Stock Exchange, the American Stock Exchange, the NASDAQ Global
Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
or OTC Bulletin Board on which the Common Stock is listed or quoted
for trading on the date in question.
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“Warrant
Shares” means the shares of Common Stock
issuable upon exercise of this Warrant.
2.
Registration of
Warrant .
The Company shall register this Warrant upon records to be
maintained by the Company for that purpose (the “Warrant
Register” ), in the name of the record Holder hereof from
time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the Holder, and for
all other purposes, absent actual notice to the
contrary.
3.
Registration of
Transfers .
The Company shall register the transfer of any portion of
this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed
and signed, to the Company at its address specified herein.
Upon any such registration or transfer, a new Warrant to
purchase Common Stock, in substantially the form of this Warrant
(any such new Warrant, a “New Warrant” ),
evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued
to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
4.
Exercise and Duration
of Warrants .
This Warrant shall be exercisable by the registered Holder at
any time and from time to time on or after the Original Issue Date
through and including the Expiration Date. At 6:30 p.m., New
York City time on the Expiration Date, the portion of this Warrant
not exercised prior thereto shall be and become void and of no
value. The Company may not call or redeem any portion of this
Warrant without the prior written consent of the affected Holder.
5.
Delivery of Warrant
Shares .
(a)
To effect exercises
hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by
this Warrant is being exercised. Upon delivery of the duly
executed Exercise Notice (in the form attached hereto) to the
Company (with the attached Warrant Shares Exercise Log) at its
address for notice set forth herein and upon payment of the
Exercise Price multiplied by the number of Warrant Shares that the
Holder intends to purchase hereunder, the Company shall promptly
(but in no event later than three Trading Days after the Date of
Exercise (as defined herein)) issue and deliver to the Holder, a
certificate for the Warrant Shares issuable upon such exercise.
The Company shall, upon request of the Holder and subsequent
to the date on which a registration statement covering the resale
of the Warrant Shares has been declared effective by the Securities
and Exchange Commission, use its reasonable best efforts to deliver
Warrant Shares hereunder electronically through the Depository
Trust Corporation or another established clearing corporation
performing similar functions, if available, provided , that,
the Company may, but will not be required to change its transfer
agent if its current transfer agent cannot deliver Warrant Shares
electronically through the Depository Trust Corporation. A
“ Date of Exercise ” means the date on which the
Holder shall have delivered to the Company: (i) the Exercise Notice
(with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing
the cashless exercise provisions set forth in this Warrant, payment
of the Exercise Price for the number of Warrant Shares so indicated
by the Holder to be purchased.
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(b)
If by the third Trading
Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant
to Section 5(a), then the Holder will have the right to rescind
such exercise.
(c)
If by the third Trading
Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant
to Section 5(a), and if after such third Trading Day and prior to
the receipt of such Warrant Shares, the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock 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 the
exercise at issue by (B) the closing bid price of the Common Stock
on the Date of Exercise and (2) at the option of the Holder, either
reinstate the portion of the Warrant and equivalent 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 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.
(d)
The Company’s
obligations to issue and deliver Warrant Shares in accordance with
the terms hereof are absolute and unconditional, irrespective of
any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to
enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other
Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in
connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder's right to pursue any other remedies
available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive
relief with respect to the Company's failure to timely deliver
certificates representing Warrant Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
6.
Charges, Taxes and
Expenses .
Issuance and delivery of Warrant Shares upon exercise of this
Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company; provided, however, that the Company shall not be required
to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares
or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
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7.
Replacement of
Warrant .
If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and
substitution for this Warrant, a New Warrant, but only upon receipt
of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which
shall not include a surety bond), if requested. Applicants
for a New Warrant under such circumstances shall also comply
wi
