EXHIBIT 4.3
FORM OF PLACEMENT AGENT WARRANT
Warrant No. __________
NEITHER
THIS WARRANT NOR THE SECURITIES FOR WHICH THIS SECURITY IS
EXERCISABLE 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 MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN
“ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT
YONGYE BIOTECHNOLOGY INTERNATIONAL, INC.
Warrant
Shares
Initial
Exercise Date: April 17, 2008
THIS
COMMON STOCK PURCHASE WARRANT (the “
Warrant ”)
certifies that, for value received, _______________ or its
registered assigns (the “
Holder ”),
is entitled, at any time and from time to time, on or after the
date hereof (the “
Initial Exercise Date ”)
and on or prior to the close of business on the five year
anniversary of the Initial Exercise Date (the “
Expiration Date ”)
but not thereafter, to subscribe for and purchase from Yongye
Biotechnology International, Inc., a Nevada corporation (the
“
Company ”)
up to _______ shares (each such share, a
“
Warrant Share
” and
all such shares, the “
Warrant Shares ”)
of Common Stock, subject to the following terms, conditions and
limitations:
1.
Definitions .
As used in this Warrant, the following terms shall have the
respective definitions set forth in this
Section
0 .
Capitalized terms that are used but not defined in this Warrant
that are defined in the Securities Purchase Agreement (as defined
below) shall have the respective definitions set forth in the
Securities Purchase Agreement.
“
Business Day ”
means any day except Saturday, Sunday and any day that is a federal
legal holiday in the United States or a day on which banking
institutions in the State of New York are authorized or required by
law or other government action to close.
“
Common Stock ”
means the common stock of the Company, par value $0.001 per share,
and any securities into which such common stock may hereafter be
reclassified.
“
Exercise Price ”
means $1.848, subject to adjustment in accordance with
Section
0 .
“
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.
“
Original Issue Date ”
means the Initial Exercise Date first set forth on the first page
of this Warrant.
“
New York Courts ”
means the state and federal courts sitting in the City of New York,
Borough of Manhattan.
“
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.
“
Securities Purchase Agreement ”
means the Securities Purchase Agreement, dated as of the date of
this Warrant, to which the Company and the original holder of the
Warrant are parties.
“
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 or listed on any
Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market; provided, that in the event that the
Common Stock is not listed or quoted as set forth in (i) and (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 National Market, the Nasdaq SmallCap Market or
the OTC Bulletin Board on which the Common Stock is listed or
quoted for trading on the date in question.
“
VWAP ”
shall mean, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted
average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is
then listed or quoted as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. New York City time to 4:02 p.m. New York
City time); (b) if the OTC Bulletin Board is not a Trading
Market, the volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the OTC Bulletin
Board; (c) if the Common Stock is not then listed or quoted for
trading on the OTC Bulletin Board and if prices for the Common
Stock are then reported in the “Pink Sheets” published
by Pink Sheets, LLC (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price
per share of the Common Stock so reported; or (d) in all other
cases, the fair market value of a share of Common Stock as
determined by an independent appraiser selected in good faith by
the Purchasers of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company
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. The rights of the original Holder under the Registration
Rights Agreement shall be transferred with such transfer of
Warrant.
4.
Exercise and Duration of Warrants .
This Warrant shall be exercisable by the registered Holder at any
time and from time to time 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
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 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. A “
Date of Exercise ”
means the date on which the Holder shall have delivered to the
Company: (i) the Exercise Notice (with the Warrant Shares 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.
(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
0
0 ,
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
0
0 ,
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 (i) pay in cash to the Holder the amount by
which (A) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so
purchased exceeds (B) the amount obtained by multiplying (1) the
number of Warrant Shares that the Company was required to deliver
to the Holder in connection with the exercise at issue by (2) the
closing bid price of the Common Stock on the Date of Exercise and
(ii) 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.
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 with such
other reasonable regulations and procedures and pay such other
reasonable third-party costs as the Company may prescribe. If a New
Warrant is requested as a result of a mutilation of this Warrant,
then the Holder shall deliver such mutilated Warrant to the Company
as a condition precedent to the Company’s obligation to issue
the New Warrant.
8.
Reservation of Warrant Shares .
The Company covenants that it will at all times reserve and keep
available out of the aggregate of its authorized but unissued and
otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant
as herein provided, the number of Warrant Shares which are then
issuable and deliverable upon the exercise of this entire Warrant,
free from preemptive rights or any other contingent purchase rights
of Persons other than the Holder (taking into account the
adjustments and restrictions of
Section
0 ).
The Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and
nonassessable.
9.
Certain Adjustments .
The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to
time as set forth in this
Section
0 .
(a)
Stock Dividends and Splits .
If the Company, at any time while this Warrant is outstanding, (i)
pays a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in
shares of Common Stock, (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, or (iii) combines
outstanding shares of Common Stock into a smaller number of shares,
then, in each such case, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such
event by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding immediately before such event
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event and the
product so obtained shall thereafter be the Exercise Price then in
effect. Any adjustment made pursuant to clause (i) of this
paragraph shall become effective immediately after the record date
for the determination of stockholders entitled to receive such
dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately
after the effective date of such subdivision or
combination.
(b)
Fundamental Transactions .
If, at any time while this Warrant is outstanding there is a
Fundamental Transaction, then the Holder shall have the right
thereafter to receive, upon exercise of this Warrant,
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