Exhibit
10.26
THE
SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES
HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR (II) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS.
SUBJECT
TO THE PROVISIONS HEREOF, THIS WARRANT SHALL BE VOID AFTER 5:00 P.M. EASTERN
TIME ON JUNE 28, 2013 (THE “EXPIRATION DATE”).
No. 1
BIRCH
BRANCH, INC.
WARRANT
TO PURCHASE 1,922,833 SHARES OF
COMMON
STOCK, NO PAR VALUE PER SHARE
FOR VALUE
RECEIVED, SCM CAPITAL, LLC, a Connecticut limited liability company
(“Warrantholder”), is entitled to purchase, subject to the provisions of this
Warrant, from Birch Branch, Inc., a Colorado corporation (“Company”), at any
time on or prior to 5:00 P.M., Eastern time, on the Expiration Date (as
defined above), at an exercise price per share equal to $4.50 (the exercise
price in effect being herein called the “Warrant Price”), 1,922,833 shares
(“Warrant Shares”) of the Company’s Common Stock, no par value per share
(“Common Stock”). The number of Warrant Shares purchasable upon
exercise of this Warrant and the Warrant Price shall be subject to adjustment
from time to time as described herein. This Warrant is being issued
pursuant to a Letter of Intent, dated as of April 8, 2010 (the “Letter of
Intent”), between Shun Cheng Holdings HongKong Limited, a company organized
under the laws of Hong Kong and a wholly-owned subsidiary of the Company, and
the Warrantholder. Capitalized terms used herein have the respective
meanings ascribed thereto in the Letter of Intent unless otherwise defined
herein.
Section
1. Registration. The
Company shall maintain books for the transfer and registration of the
Warrant. Upon the initial issuance of this Warrant, the Company shall
issue and register the Warrant in the name of the Warrantholder.
Section
2. Transfers. As
provided herein, this Warrant may be transferred only pursuant to a registration
statement filed under the Securities Act of 1933, as amended
(the “Securities Act”), or an exemption from such
registration. Subject to such restrictions, the Company shall
transfer this Warrant from time to time upon the books to be maintained by the
Company for that purpose, upon surrender hereof for transfer, properly endorsed
or accompanied by appropriate instructions for transfer and such other documents
as may be reasonably required by the Company, including, if required by the
Company, an opinion of its counsel to the effect that such transfer is exempt
from the registration requirements of the Securities Act, to establish that such
transfer is being made in accordance with the terms hereof, and a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be canceled
by the Company.
Section
3. Exercise of
Warrant.
(a) General. Subject
to the provisions hereof, the Warrantholder may exercise this Warrant, in whole
or in part, prior to its expiration upon surrender of the Warrant, together with
delivery of a duly executed Warrant exercise form, in the form attached hereto
as “Appendix A”
(the “Warrant Exercise Form”), and payment by cash, certified check or wire
transfer of funds (or, in certain circumstances, by cashless exercise as
provided in Section 3(c) below) of the
aggregate Warrant Price for that number of Warrant Shares then being purchased,
to the Company during normal business hours on any business day at the Company’s
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the Warrantholder). The Warrant Shares so
purchased shall be deemed to be issued to the Warrantholder or the
Warrantholder’s designee, as the record owner of such shares, as of the close of
business on the date on which this Warrant shall have been surrendered (or the
date evidence of loss, theft or destruction thereof and security or indemnity
satisfactory to the Company has been provided to the Company), the Warrant Price
shall have been paid and the completed Warrant Exercise Form (or, in the case of
a cashless exercise, the form attached hereto as “Appendix B” (the “Net
Issue Election Notice”)) shall have been delivered. Certificates for
the Warrant Shares so purchased shall be delivered to the Warrantholder within a
reasonable time, not exceeding three (3) business days, after this Warrant shall
have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the Warrantholder and shall be
registered in the name of the Warrantholder or such other name as shall be
designated by the Warrantholder, as specified in the Warrant Exercise
Form. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the Warrantholder a new Warrant
representing the right to purchase the number of shares with respect to which
this Warrant shall not then have been exercised. As used herein,
“business day” means a day, other than a Saturday or Sunday, on which banks in
New York City are open for the general transaction of business.
(b) Conversion
Limitation. Notwithstanding anything in this Warrant to the
contrary, in no event shall this Warrant be exercisable to the extent that the
issuance of the shares of Common Stock upon the exercise thereof, after taking
into account the shares of Common Stock then owned by the Warrantholder and its
affiliates, would result in the beneficial ownership by the Warrantholder and
its affiliates of more than 4.99% of the outstanding shares of Common Stock of
the Company. For purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Regulation 13D-G
thereunder. Notwithstanding anything to the contrary contained
herein, the limitation on exercise of this Warrant may be waived by written
agreement between the Warrantholder and the Company; provided, however, such waiver
may not be effective less than sixty-one (61) days from the date
thereof.
(c) Cashless
Exercise. Notwithstanding any other provision contained herein
to the contrary, from and after the one year anniversary of the Effective Date,
if the Warrant Shares may not be freely sold to the public due to the failure of
the Company to have effected the registration of the Warrant Shares or to have a
current prospectus available for delivery or otherwise, and if an exemption for
such sale is not otherwise available pursuant to Rule 144 promulgated under the
Securities Act, the Warrantholder may elect to receive, without the payment by
the Warrantholder of the aggregate Warrant Price in respect of the shares of
Common Stock to be acquired, shares of Common Stock of equal value to the value
of this Warrant, or any specified portion hereof, by the surrender of this
Warrant (or such portion of this Warrant being so exercised) together with a Net
Issue Election Notice, duly executed, to the Company. Thereupon, the
Company shall issue to the Warrantholder such number of fully paid, validly
issued and nonassessable shares of Common Stock as is computed using the
following formula:
X = Y (A -
B)
A
where
X
= the number of shares of Common Stock to which the
Warrantholder is entitled upon such cashless exercise;
Y
= the total number of shares of Common Stock covered by
this Warrant for which the Warrantholder has surrendered purchase rights at such
time for cashless exercise (including both shares to be issued to the
Warrantholder and shares as to which the purchase rights are to be canceled as
payment therefor);
A
= the “Market Price” (as defined below) of one share of
Common Stock as at the date the net issue election is made; and
B
= the Warrant Price in effect under this Warrant at
the time the net issue election is made.
(d)
Condition to
Exercise. Notwithstanding any other provision contained herein
to the contrary, this Warrant shall not be exercisable until the closing of the
private financing referred to in the Letter of Intent (the “Private Financing”)
resulting in gross proceeds of $25 million or more. In the event the
Private Financing is not closed on or prior to August 31, 2010, this Warrant
shall be subject to forfeiture at the sole option of the Company.
Section
4. Compliance with the
Securities Act. The Company may cause the legend set forth on
the first page of this Warrant to be set forth on each additional warrant issued
to the Warrantholder, and a similar legend on any security issued or issuable
upon exercise of this Warrant, unless counsel for the Company is of the opinion
as to any such security that such legend is unnecessary.
Section
5. Payment of
Taxes. The Company will pay any documentary stamp taxes
attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the Warrantholder in respect of which such shares are
issued, and in such case, the Company shall not be required to issue or deliver
any certificate for Warrant Shares or any Warrant until the person requesting
the same has paid to the Company the amount of such tax or has established to
the Company’s reasonable satisfaction that such tax has been
paid. The Warrantholder shall be responsible for income taxes due
under federal, state or other law, if any such tax is due.
Section
6. Mutilated or Missing
Warrants. In case this Warrant shall be mutilated, lost,
stolen, or destroyed, the Company shall issue in exchange and substitution of
and upon surrender and cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and for the purchase of a like number of Warrant Shares, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft
or destruction of the Warrant, and with respect to a lost, stolen or destroyed
Warrant, reasonable indemnity or bond with respect thereto, if requested by the
Company.
Section
7. Reservation of Common
Stock. The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of providing for the exercise of this Warrant, such number of shares
of Common Stock as shall from time to time equal the number of shares sufficient
to permit the exercise of this Warrant in accordance with its
terms. The Company agrees that all Warrant Shares issued upon due
exercise of this Warrant shall be, at the time of delivery of the certificates
for such Warrant Shares, duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock of the Company.
Section
8. Adjustments. The
Warrant Price and number of Warrant Shares subject to this Warrant shall be
subject to adjustment from time to time as set forth hereinafter.
(a) If
the Company shall, at any time or from time to time while this Warrant is
outstanding, pay a dividend or make a distribution on its Common Stock in shares
of Common Stock, subdivide its outstanding shares of Common Stock into a greater
number of shares or combine its outstanding shares of Common Stock into a
smaller number of shares or issue by reclassification of its outstanding shares
of Common Stock any shares of its capital stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then (i) the Warrant Price in effect
immediately prior to the date on which such change shall become effective shall
be adjusted by multiplying such Warrant Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such change and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after giving effect to such change and
(ii) the number of Warrant Shares purchasable upon exercise of this Warrant
shall be adjusted by multiplying the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior to the date on which such change
shall become effective by a fraction, the numerator of which shall be the
Warrant Price in effect immediately prior to the date on which such change shall
become effective and the denominator of which shall be the Warrant Price in
effect immediately after giving effect to such change, calculated in accordance
with clause (i) above. Such adjustments shall be made successively
whenever any event listed above shall occur.
(b) If
any capital reorganization or reclassification of the capital stock of the
Company, consolidation or merger of the Company with another corporation in
which the Company is not the survivor, or sale, transfer or other disposition of
all or substantially all of the Company’s assets to another corporation shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby the Warrantholder 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 the Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interests of the Warrantholder to the end that the
provisions hereof (including, without limitation, provision for adjustment of
the Warrant 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 consolidation, merger, sale, transfer or other disposition
unless prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or
merger, or the corporation purchasing or otherwise acquiring such assets or
other appropriate corporation or entity shall assume all obligations under this
Warrant, including the obligation to deliver to the Warrantholder, at the last
address of the Warrantholder appearing on the books of the Company, such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
the Warrantholder may be entitled to purchase. The provisions of this
paragraph (b) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales, transfers or other
dispositions.
(c) If
the Company shall fix a payment date for the making of a distribution to all
holders of Common Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the continuing corporation) of
evidences of indebtedness or assets (other than cash dividends or cash
distributions payable out of consolidated earnings or earned surplus or
dividends or distributions referred to in Section 8(a)), or subscription rights
or warrants, the Warrant Price to be in effect after such payment date shall be
determined by multiplying the Warrant Price in effect immediately prior to such
payment date by a fraction, the numerator of which shall be the total number of
shares of Common Stock outstanding multiplied by the Market Price (as defined
below) per share of Common Stock immediately prior to such payment date, less
the fair market value (as determined by the Company’s Board of Directors in good
faith) of said assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such Market Price per
share of Common Stock immediately prior to such payment date. “Market
Price” as of a particular date (the “Valuation Date”) shall mean the following:
(a) if the Common Stock is then listed on a national stock exchange, the closing
sale price of one share of Common Stock on such exchange on the last trading day
prior to the Valuation Date; (b) if the Common Stock is then quoted on the
Financial Industry Regulatory Authority, Inc.’s OTC Bulletin Board (the
“Bulletin Board”) or such similar quotation system or association, the closing
sale price of one share of Common Stock on the Bulletin Board or such other
quotation system or association on the last trading day prior to the Valuation
Date or, if no such closing sale price is available, the average of the high bid
and the low ask price quoted thereon on the last trading day prior to the
Valuation Date; or (c) if the Common Stock is not then listed on a national
stock exchange or quoted on the Bulletin Board or such other quotation system or
association, the fair market value of one share of Common Stock as of the
Valuation Date, as determined in good faith by the Board of Directors of the
Company and the Warrantholder. If the Common Stock is not then listed
on a national securities exchange, the Bulletin Board or such other quotation
system or association, the Board of Directors of the Company shall respond
promptly, in writing, to an inquiry by the Warrantholder prior to the exercise
hereunder as to the fair market value of a share of Common Stock as determined
by the Board of Directors of the Company. In the event that the Board
of Directors of the Company and the Warrantholder are unable to agree upon the
fair market value in respect of subpart (c) of this paragraph, the Company and
the Warrantholder shall jointly select an appraiser, who is experienced in such
matters. The decision of such appraiser shall be final and
conclusive, and the cost of such appraiser shall be borne equally by the Company
and the Warrantholder. Such adjustment shall be made successively
whenever such a payment date is fixed.
(d) An
adjustment to the Warrant Price shall become effective immediately after the
payment date in the case of each dividend or distribution and immediately after
the effective date of each other event which requires an
adjustment.
(e) In
the event that, as a result of an adjustment made pursuant to this
Section 8, the Warrantholder shall become entitled to receive any shares of
capital stock of the Company other than shares of Common Stock, the number of
such other shares so receivable upon exercise of this Warrant shall be subject
thereafter to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant Shares
contained in this Warrant.
(f) To
the extent permitted by applicable law and the listing requirements of any stock
market or exchange on which the Common Stock is then listed, the Company from
time to time may decrease the Warrant Price by any amount for any period of time
if such period of time is at least twenty (20) days, the decrease is irrevocable
during such period of time and the Board shall have made a determination that
such decrease would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Warrant Price is decreased pursuant
to the preceding sentence, the Company shall provide written notice thereof to
the Warrantholder at least five (5) days prior to the date the decreased Warrant
Price takes effect, and such notice shall state the decreased Warrant Price and
the period during which it will be in effect.
Section
9. Fractional
Interest. The Company shall not be required to issue fractions
of Warrant Shares upon the exercise of this Warrant. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this Section 9, be deliverable upon such exercise, the Company, in
lieu of delivering such fractional share, shall pay to the Warrantholder an
amount in cash equal to the Market Price of such fractional share of Common
Stock on the date of exercise.
Section
10. Benefits. Nothing
in this Warrant shall be construed to give any person, firm or corporation
(other than the Company and the Warrantholder) any legal or equitable right,
remedy or claim, it being agreed that this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrantholder.
Section
11. Notices to
Warrantholder. Upon the happening of any event requiring an
adjustment of the Warrant Price, the Company shall promptly give written notice
thereof to the Warrantholder at the address appearing in the records of the
Company, stating the adjusted Warrant Price and the adjusted number of Warrant
Shares resulting from such event and setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is
based. Failure to give such notice to the Warrantholder or any defect
therein shall not affect the legality or validity of the subject
adjustment.
Section
12. Identity of Transfer
Agent. The Transfer Agent for the Common Stock is Corporate
Stock Transfer, Inc., located at 3200 Cherry Creek Dr. South, Suite 430, Denver,
CO 80209. Upon the appointment of any subsequent transfer
agent for the Common Stock or other shares of the Company’s capital stock
issuable upon the exercise of the rights of purchase represented by the Warrant,
the Company will mail to the Warrantholder a statement setting forth the name
and address of such transfer agent.
Section
13. Notices. Unless
otherwise provided, any notice required or permitted under this Warrant shall be
given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given upon
such delivery, (ii) if given by telex or facsimile, then such notice shall be
deemed given upon receipt of confirmation of complete transmittal, (iii) if
given by mail, then such notice shall be deemed given upon the earlier of (A)
receipt of such notice by the recipient or (B) three days after such notice is
deposited in first class mail, postage prepaid, and (iv) if given by an
internationally recognized overnight air courier, then such notice shall be
deemed given one business day after delivery to such courier. All
notices shall be addressed as follows: if to the Warrantholder, at its address
as set forth in the Company’s books and records and, if to the Company, at the
address as follows, or at such other address as the Warrantholder or the Company
may designate by ten days’ advance written notice to the other:
If to the Company:
Birch Branch, Inc.
c/o Henan Shuncheng Group Coal Coke
Co., Ltd.
Henan Province, Anyang County, Cai Cun
Road Intersection
Henan Shuncheng Group Coal Coke Co.,
Ltd. (New Building)
China 455141
Attn: Chief Executive
Officer
Fax: ______________________
With a copy to:
Blank
Rome LLP
The
Chrysler Building
405
Lexington Ave.
New York,
NY 10174
Attn:
Jeffrey A. Rinde, Esq.
Fax:
(212) 885-5001
Section
14. Registration
Rights.
(a) If
at any time prior to the second anniversary of the Effective Date, the Company
proposes to prepare and file with the Securities and Exchange Commission
(the “SEC”) a registration statement covering equity securities of the
Company, other than in connection with a merger, acquisition or pursuant to a
registration statement on Form S-4 or Form S-8 or any successor form (for
purposes of this Section 14, collectively, a “Piggyback Registration
Statement”), the Company will give written notice of its intention to do so by
registered or certified mail (“Notice”), at least 10 days prior to the filing of
each such Piggyback Registration Statement, to the
Warrantholder. Upon the written request of the Warrantholder, made
within five (5) days after receipt of the Notice, that the Company include any
of the Registrable Shares (as hereinafter defined) in the Piggyback Registration
Statement, the Company shall include the Registrable Shares which it has been so
requested to register on such Piggyback Registration Statement (“Piggyback
Registration”), at the Company’s sole cost and expense and at no cost or expense
to the Warrantholder (other than any underwriting or other commissions,
discounts or fees of any counsel or advisor to the Warrantholder which shall be
payable by the Warrantholder); provided, however, that if the Piggyback
Registration is in connection with an underwritten public offering and the
Company’s underwriter or managing underwriter of the underwriting group, if any,
for such offering advises the Company that the inclusion of all or a portion of
the Registrable Shares requested to be registered, when added to the securities
being registered by the Company or the selling stockholder(s), if any, will
exceed the maximum amount of the Company’s securities which can be marketed (i)
at a price reasonably related to their then current market value, or (ii)
without otherwise having a material adverse effect on the entire offering, then
the Company may, subject to the allocation priority set forth in the next
paragraph, exclude from such offering all or a portion of the Registrable Shares
which it has been requested to register. Without limiting the
generality of the foregoing, such underwriter or managing underwriter may
condition its consent to the inclusion of all or a portion of the Registrable
Shares requested to be registered upon the participation by the Warrantholder in
the underwritten public offering on the terms and conditions
thereof.
(b) If
securities are proposed to be offered for sale pursuant to such Piggyback
Registration Statement by other security holders of the Company and the total
number of the Registrable Shares to be offered by the Warrantholder and such
other selling security holders is required to be reduced pursuant to a request
from the underwriter or managing underwriter (which request shall be made only
for the reasons and in the manner set forth above), the aggregate number of
Registrable Shares to be offered by the Warrantholder pursuant to such Piggyback
Registration Statement shall equal the number which bears the same ratio to the
maximum number of securities that the underwriter or managing underwriter
believes may be included for all the selling security holders (including the
Warrantholder), after all securities requested by selling securityholders
exercising demand registration rights (the “Demand Holders”) to be included in
such Piggyback Registration Statement are so included, as the original number of
securities proposed to be sold by the Warrantholder bear to the total original
number of securities proposed to be offered by the Warrantholder and the other
selling securityholders (other than the Demand Holders).
(c) Notwithstanding
the preceding provisions of this Section 14, the Company shall have the right at
any time after it shall have given written notice pursuant to this
Section 14 (irrespective of whether any written request for inclusion of
such securities shall have already been made) to elect not to file any proposed
Piggyback Registration Statement filed pursuant to this Section 14, or to
withdraw the same after the filing but prior to the effective date
thereof.
(d) The
obligations of the Company hereunder with respect to the Registrable Shares are
expressly conditioned on the Warrantholder’s furnishing to the Company such
appropriate information concerning the Warrantholder in a timely manner, the
Registrable Shares and the terms of the Warrantholder’s offering of such shares
as the Company may request.
(e) The
term “Registrable Shares” shall mean each of the Warrant Shares purchasable by
the Warrantholder upon exercise of this Warrant and any securities issued or
issuable with respect to such Warrant Shares, once issued to the Warrantholder,
by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. Once issued, any such securities shall cease to be
Registrable Shares registerable hereunder upon the earlier of (i) the sale of
such securities pursuant to an effective registration statement under the
Securities Act, (ii) the distribution thereof to the public pursuant to Rule 144
(or any successor provision) under the Securities Act, (iii) a transfer pursuant
to which new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force, (iv) this Warrant or the
Warrant Shares, once issued to the Warrantholder, shall have ceased to be
outstanding, or (v) any and all legends restricting transfer thereof may been
removed in accordance with the provisions of Rule 144(k) (or any successor
provision) under the Securities Act. Notwithstanding anything herein
to the contrary, the Company shall not be required to include any Registrable
Shares in a registration statement if such Registrable Shares are included in a
Piggyback Registration Statement that is effective under the Securities
Act.
Section
15. Amendment;
Waiver. Except as otherwise set forth herein, any term of this
Warrant may be amended or waived only upon the written consent of the Company
and the Warrantholder.
Section
16. Successors. All
the covenants and provisions hereof by or for the benefit of the Warrantholder
shall bind and inure to the benefit of its respective successors and assigns
hereunder.
Section
17. Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial. This Warrant shall be
governed by, and construed in accordance with, the internal laws of the State of
Colorado, without reference to the choice of law provisions
thereof. The Company and, by accepting this Warrant, the
Warrantholder, each irrevocably submits to the exclusive jurisdiction of the
state or federal courts located in the City of Denver in the State of Colorado
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 this
Warrant. The Company and, by accepting this Warrant, the
Warrantholder, 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 Warrantholder,
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 WARRANTHOLDER 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.
Section
18. No Rights as
Stockholder. Prior to the exercise of this Warrant, the
Warrantholder shall not have or exercise any rights as a stockholder of the
Company by virtue of its ownership of this Warrant.
Section
19. Amendment;
Waiver. Any term of this Warrant may be amended or waived upon
the written consent of the Company and the Warrantholder.
Section
20. Section
Headings. The section headings in this Warrant are for the
convenience of the Company and the Warrantholder and in no way alter, modify,
amend, limit or restrict the provisions hereof.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, as of
the 28th day of June, 2010.
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BIRCH
BRANCH, INC.
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By:
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/s/ Wang Feng
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Name: Wang
Feng
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Title: Chief
Executive Officer
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APPENDIX
A
BIRCH
BRANCH, INC.
WARRANT
EXERCISE FORM
To: Birch
Branch, Inc.:
The undersigned hereby irrevocably
elects to exercise the right of purchase represented by the within Warrant
(“Warrant”) for, and to purchase thereunder by the payment of the Warrant Price
and surrender of the Warrant, _______________ shares of Common Stock (“Warrant
Shares”) provided for therein, and requests that certificates for the Warrant
Shares be issued as follows:
_______________________________
Name
________________________________
Address
________________________________
Federal Tax ID or Social Security
No.
and delivered
by: certified mail to the above address,
or
electronically
(provide
DWAC
Instructions:___________________),
or
other
(specify):__________________________________________).
and, if
the number of Warrant Shares shall not be all the Warrant Shares purchasable
upon exercise of the Warrant, that a new Warrant for the balance of the Warrant
Shares purchasable upon exercise of this Warrant be registered in the name of
the undersigned Warrantholder or the undersigned’s assignee as below indicated
and delivered to the address stated below.
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Dated:
___________________, ____
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Name
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Note: The
signature must correspond with
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the
name of the Warrantholder as written
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Signature
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on
the first page of the Warrant in every
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By:
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particular,
without alteration or enlargement
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Title:
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or
any change whatsoever, unless the Warrant
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has
been assigned.
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Address
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Federal
Identification or
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Social
Security No.
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Assignee:
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APPENDIX
B
BIRCH
BRANCH, INC.
NET ISSUE
ELECTION NOTICE
To: Birch
Branch, Inc.
Date:[_________________________]
The
undersigned hereby elects under Section 3(c) of this
Warrant to surrender the right to purchase [____________] shares of Common Stock
pursuant to this Warrant and hereby requests the issuance of [_____________]
shares of Common Stock. The certificate(s) for the shares issuable
upon such net issue election shall be issued as follows:
_______________________________
Name
________________________________
Address
________________________________
________________________________
Federal Tax ID or Social Security
No.
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Dated:
___________________, ____
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Name
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Note: The
signature must correspond with
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the
name of the Warrantholder as written
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Signature
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on
the first page of the Warrant in every
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By:
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particular,
without alteration or enlargement
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Title:
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or
any change whatsoever, unless the Warrant
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has
been assigned.
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Address
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Federal
Identification or
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Social
Security No.
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Assignee:
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