As filed with the Securities and Exchange
Commission on March 3, 2015
Registration No. 333-199160
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 5 TO FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
SINO-GLOBAL SHIPPING AMERICA, LTD.
(Exact Name of Registrant as Specified in
Charter)
Virginia |
|
4731 |
|
11-3588546 |
(State or Other Jurisdiction of
Incorporation or Organization) |
|
(Primary Standard Industrial Classification
Code Number) |
|
(IRS Employer Identification No.) |
1044 Northern Boulevard
Roslyn, New York 11576-1514
(718) 888-1814
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Lei Cao
Chief Executive Officer
Sino-Global Shipping America, Ltd.
1044 Northern Boulevard
Roslyn, New York 11576-1514
(718) 888-1814
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Lawrence G. Nusbaum, Esq.
Bryan S. Dixon, Esq.
Gusrae Kaplan Nusbaum PLLC
120 Wall Street, 25th Floor
New York, New York 10005
Tel: (212) 269-1400
Fax: (212) 809-5449 |
|
Joseph A. Smith, Esq.
Robert F. Charron, Esq.
Ellenoff Grossman & Schole
LLP
1345 Avenue of the Americas
New York, New York 10105
Tel: (212) 370-1300
Fax: (212) 370-7889 |
Approximate date of commencement of proposed
sale to the public: As soon as practicable after this Registration Statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box: x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for
the same offering: ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company:
Large accelerated filer ¨ |
Accelerated filer ¨ |
Non-accelerated filer ¨ |
Smaller reporting company x |
Calculation of Registration Fee
Title of each class of securities to be
registered |
|
Amount to
be registered |
|
|
Proposed
maximum
offering price
per share |
|
|
Proposed
maximum
aggregate offering
price(1)(2) |
|
|
Amount of
registration
Fee (3) (4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, without par value per share |
|
$ |
|
|
|
|
|
|
|
$ |
7,000,000 |
|
|
$ |
813 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants to purchase shares of common stock (2) |
|
|
|
|
|
|
|
|
|
$ |
— |
|
|
$ |
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock issuable upon exercise of the warrants |
|
|
|
|
|
|
|
|
|
$ |
8,769,280 |
|
|
$ |
1019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Placement Agent Warrants to purchase shares of common stock |
|
|
|
|
|
|
|
|
|
$ |
— |
|
|
$ |
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock issuable upon exercise of the Placement Agent Warrants |
|
|
|
|
|
|
|
|
|
$ |
438,464 |
|
|
$ |
51 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
$ |
16,207,744 |
|
|
$ |
1,883 |
|
|
(1) |
Estimated solely for the purpose of calculating the registration fee under Rule 457(o) under the Securities Act. |
|
(2) |
Pursuant to Rule 416 of the Securities Act, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting upon exercise of the warrants pursuant to the anti-dilution provisions in the warrants. |
|
(3) |
Calculated pursuant to Rule 457(a) under the Securities Act based on an estimate of the proposed maximum aggregate offering price. |
|
(4) |
$1,883 was previously paid. |
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this registration statement shall hereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement shall become effective on such date as the Commission, acting pursuant
to Section 8(a), may determine.
EXPLANATORY
NOTE
The sole purpose of this Amendment
No. 5 to Registration Statement on Form S-1 (File No. 333-199160) is to file Exhibits 2.1, 4.2, 4.3, 5.1, 5.2, 23.1 and
23.2 to the Registration Statement. No other changes have been made to the Registration Statement or the preliminary prospectus
forming part thereof. Accordingly, Parts I and II of the Registration Statement have been omitted from this Amendment No. 5
to Registration Statement on Form S-1.
SIGNATURES
Pursuant to the requirements
of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned
on March 3, 2015.
|
SINO-GLOBAL SHIPPING AMERICA, LTD. |
|
|
|
|
By: |
/s/ Lei Cao |
|
|
Name: Lei Cao |
|
|
Title: Chief Executive Officer (Principal Executive Officer) |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Lei Cao and Anthony S. Chan, and each of them, his or her true
and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this
Registration Statement and any and all related registration statements pursuant to Rule 462(b) of the Securities Act, and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, the following persons in the capacities and on the dates indicated have signed this Registration Statement or Amendment
thereto on Form S-1.
SIGNATURE |
|
TITLE |
|
DATE |
|
|
|
|
|
/s/ Lei Cao |
|
Chief Executive Officer and Director |
|
March 3, 2015 |
Lei Cao |
|
(Principal Executive Officer) |
|
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|
|
|
|
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/s/ Anthony S. Chan |
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Acting Chief Financial Officer |
|
March 3, 2015 |
Anthony S. Chan |
|
(Principal Accounting and Financial Officer) and Director |
|
|
|
|
|
|
|
/s/ Jing Wang |
|
Director |
|
March 3, 2015 |
Jing Wang |
|
|
|
|
|
|
|
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/s/ Ming Zhu |
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Director |
|
March 3, 2015 |
Ming Zhu |
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/s/ Tieliang Liu |
|
Director |
|
March 3, 2015 |
Tieliang Liu |
|
|
|
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EXHIBIT INDEX
Number |
|
Exhibit |
2.1 |
|
Placement Agency Agreement. + |
3.1 |
|
First Amended and Restated Articles of Incorporation of Sino-Global Shipping America, Ltd.(1) |
3.2 |
|
Bylaws of Sino-Global Shipping America, Ltd. (2) |
4.1 |
|
Specimen Certificate for Common Stock. (2) |
4.2 |
|
Form of warrant to be issued to investors in the offering. + |
4.3 |
|
Form of Placement Agent warrant. + |
4.4 |
|
Form of warrant agent agreement. +
|
5.1 |
|
Opinion of Kaufman & Canoles. + |
5.2 |
|
Opinion of Gusrae Kaplan Nusbaum PLLC. + |
10.1 |
|
Exclusive Management Consulting and Technical Services Agreement by and between Trans Pacific and Sino-China. (2) |
10.2 |
|
Exclusive Marketing Agreement by and between Trans Pacific and Sino-China. (2) |
10.3 |
|
Proxy Agreement by and among Lei Cao, Mingwei Zhang, the Company and Sino-China. (2) |
10.4 |
|
Equity Interest Pledge Agreement by and among Trans Pacific, Lei Cao and Mingwei Zhang. (2) |
10.5 |
|
Exclusive Equity Interest Purchase Agreement by and among the Company, Lei Cao, Mingwei Zhang and Sino-China. (2) |
10.6 |
|
First Amended and Restated Exclusive Management Consulting and Technical Services Agreement by and between Trans Pacific and Sino-China. (2) |
10.7 |
|
First Amended and Restated Exclusive Marketing Agreement by and between Trans Pacific and Sino-China. (2) |
10.8 |
|
The Company’s 2008 Stock Incentive Plan. (2) |
10.9 |
|
The Company’s 2014 Stock Incentive Plan. (3) |
14.1 |
|
Code of Ethics of the Company.(4) |
21.1 |
|
List of subsidiaries of the Company.(5) |
23.1 |
|
Consent of Kaufman & Canoles (included in Exhibit 5.1). + |
23.2 |
|
Consent of Gusrae Kaplan Nusbaum PLLC (included in Exhibit 5.2). + |
23.3 |
|
Consent of Friedman LLP, Independent Registered Public Accounting firm. * |
24.1 |
|
Power of Attorney. (on signature page). |
* |
Previously filed |
+ |
Filed herewith |
** |
To be filed by amendment |
(1) |
Incorporated by reference to the Company’s Current Report on Form 8-K filed on January 27, 2014. |
(2) |
Incorporated by reference to the Company’s Registration Statement on Form S-1 (File Nos. 333-150858 and 333-148611). |
(3) |
Incorporated by reference to the Company’s Registration Statement on Form S-8, filed with the SEC on April 23, 2014 (File No. 333-194211). |
(4) |
Incorporated by reference to the Company’s Annual Report on Form 10-KSB filed on September 29, 2008 (File No. 001-34024). |
(5) |
Incorporated by reference to the Company’s Annual Report on Form 10-K filed on September 30, 2014. |
Exhibit 2.1
PLACEMENT AGENCY AGREEMENT
_________ __, 2015
Aegis Capital Corp.
810 Seventh Avenue, 18th Floor
New York, New York 10019
Ladies and Gentlemen:
Introduction.
Subject to the terms and conditions herein (this “Agreement”), Sino-Global Shipping America, Ltd., a Virginia
corporation (the “Company”), hereby agrees to sell up to an aggregate of $_______ of registered securities of
the Company, including, but not limited to, _____ shares (the “Shares”) of the Company’s common stock,
no par value per share (the "Common Stock”), Common Stock purchase warrants to purchase up to an aggregate of
_______ shares of Common Stock (the “Warrants”) and the shares of Common Stock underlying the Warrants (the
“Warrant Shares” and, together with the Shares and Warrants, collectively, the “Securities”)
directly to various investors (each, an “Investor” and, collectively, the “Investors”) through
Aegis Capital Corp., as exclusive placement agent (the “Placement Agent”). The purchase price to the Investors
for each Share is $____ and the exercise price to the Investors for each share of Common Stock issuable upon exercise of the Warrants
is $_____. The Placement Agent may retain other registered brokers or dealers who are FINRA members to act as sub-agents or selected-dealers
on its behalf in connection with the Offering (as defined below). The Placement Agent will conduct the Offering (as defined below)
on a “firm-wide” basis, subject to suitability and/or other compliance rules and regulations that the Placement Agent
is subject to under FINRA’s rules and regulations.
The Company hereby
confirms its agreement with the Placement Agent as follows:
Section 1. Agreement
to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive Placement Agent in connection with the offer and sale by the Company
of the Securities pursuant to the Company's Registration Statement, as defined below, with the terms of such offering (the “Offering”)
to be subject to market conditions and negotiations between the Company and the Placement Agent. The Placement Agent will act on
a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement
of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any
of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account
or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The
Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Shares and the Company
shall have the sole right to accept offers to purchase Shares and may reject any such offer, in whole or in part. Subject to the
terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings
(each a “Closing” and the date on which each Closing occurs, a “Closing Date”). We expect
to have one Closing. As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent
the fees and expenses set forth below:
(i) A cash
fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing of the
Offering; plus a non-accountable expense allowance equal to 1% of the gross proceeds received by the Company from the sale of the
Securities at the applicable Closing of the Offering.
(ii) Such
number of Common Stock purchase warrants (the “Placement Agent Warrants”) to the Placement Agent or its designees
at each Closing to purchase shares of Common Stock equal to 5% of the aggregate number of Shares sold in the applicable Closing
of the Offering. The Placement Agent Warrants shall have the same terms as the warrants issued to the Investors in the Offering,
provided that the exercise price shall be 125% of the public offering price per share and the expiration date shall be 5 years
from the effective date of the Registration Statement, and such Placement Agent Warrants shall not be exercisable for a period
of 180 days from the effective date of the Registration Statement. The Placement Agent Warrants shall have a cashless exercise
provision and one demand registration right and unlimited piggyback registration rights for the term of the Placement Agent Warrants,
but shall not have any price-based anti-dilution provision. The Placement Agent Warrants shall not be transferable for 180 days
from the date of effectiveness or commencement of sales in the Offering except as permitted by Financial Industry Regulatory Authority
(“FINRA”) Rule 5110(g)(1). The number of Placement Agent Warrants issuable at Closing shall be subject to reduction
to whatever extent is necessary to comply with the compensation limits imposed by FINRA Rule 5110.
(iii) The
Company also agrees to reimburse Placement Agent’s expenses (with supporting invoices/receipts) up to a maximum of $35,000
for Placement Agent’s counsel, plus up to a further $20,000 for actual road show expenses. Placement Agent acknowledges receipt
of the sum of $25,000 against such expenses prior to the execution of this Placement Agency Agreement, and the balance of the reimbursement
shall be payable immediately upon (but only in the event of) a Closing of the Offering. In the event the Offering is terminated
prior to a Closing, the maximum reimbursement of the Placement Agent’s expenses shall be $35,000, which amount includes all
expenses incurred in conducting background checks of the Company’s officers and directors. The Company shall pay other expenses
as set forth in Section 7 of the engagement letter between us dated January 21, 2015, without duplication.
(b) For
a period of twelve (12) months following the date of the commencement of sales in connection with the Offering, if the Company
or any Subsidiary or successor of the Company determines to raise funds by means of a public offering or a private placement of
equity, equity linked or debt securities using an investment bank, underwriter or placement agent, the Placement Agent shall have
the right to act as sole investment bank, sole underwriter or sole placement agent for such financing on terms (including commissions
and discounts) not less favorable to the Company or such Subsidiary or successor as may be elsewhere obtained by the Company (the
“Right of First Refusal”); provided, however, notwithstanding anything to the contrary provided
herein or elsewhere, in no event shall the Right of First Refusal of the Placement Agent be applicable to any debt, equity and/or
any other financing undertaken by the Company if the net proceeds therefrom shall be used solely for the purpose of acquiring a
ship vessel and/or any other acquisitions of specific businesses and/or assets of a third party and not used for general working
capital or to fund a potential acquisition pool (“Acquisition Funding”). If the Placement Agent fails to accept
in writing its role in the public or private sale of equity or debt securities within 5 business days of receipt of notice from
the Company or such Subsidiary or successor of such offering, Placement Agent will have no claim or right with respect to any such
offering in such notice. If the Placement Agent determines to accept such engagement, the agreement governing such engagement will
contain the provisions of this Agreement as are applicable (other than economic fee or compensatory arrangements or provisions),
including indemnification, and other customary provisions which are appropriate to transactions of similar size and nature. Notwithstanding
anything to the contrary contained herein, this Section 1(b) shall be subject to compliance with FINRA Rule 5110(f)(2)(D). In connection
with the right of first refusal set forth in this Section 1(b), the Placement shall have no more than one opportunity to waive
or terminate such right of first refusal in consideration of any payment or fee in compliance with FINRA Rule 5110(f)(2)(E)(ii)
(c) The
term of the Placement Agent's exclusive engagement will be until the completion or termination of the Offering (the “Exclusive
Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any
time upon 5 days written notice to the other parties; provided, however, notwithstanding anything to the contrary
provided herein or elsewhere the Placement Agent’s exclusive engagement shall not apply to Acquisition Financing. Notwithstanding
anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained
herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination
of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually
incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D)(i),
will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability
of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial
advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons”
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 and (ii) “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 405 under the Securities Act of 1933, as amended (the
“Securities Act”).
Section 2. Representations,
Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement Agent as of
the date hereof, and as of each Closing Date, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement on Form S-1 (File No. 333-199160) under the Securities Act of 1933, as amended (the “Securities Act”),
which was filed on October 3, 2014, and as amended from time to time, and which became effective on ______, 2015 for the registration
under the Securities Act of the Securities. The Company will file with the Commission pursuant to Rules 430A and 424(b) under the
Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder,
a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof
(the “Final Prospectus”) and has advised the Placement Agent of all further information (financial and other)
with respect to the Company required to be set forth therein. Such registration statement, at any given time, including the exhibits
thereto filed at such time, as amended at such time, is hereinafter called the “Registration Statement”; such
prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Preliminary Prospectus”.
The Registration Statement at the time it originally becomes effective is hereinafter called the “Original Registration
Statement.” The Company has not received any notice that the Commission has issued or intends to issue a stop order suspending
the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus or intends to
commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement contains all exhibits and schedules as required by the Securities Act and at the time it became
effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Preliminary Prospectus and the Final Prospectus as of its respective dates, each complied
in all material respects with the Securities Act and the applicable Rules and Regulations. The Preliminary Prospectus does not
and the Final Prospectus will not, contain as of the respective dates thereof any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading. No post-effective amendment to the original Registration Statement reflecting any facts or events arising after
the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is
required to be filed with the Commission. Except for this Agreement, there are no documents required to be filed with the Commission
in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act
or (y) will not be filed within the requisite time period. Except for this Agreement, there are no contracts or other documents
required to be described in the Preliminary Prospectus or the Final Prospectus, or to be filed as exhibits or schedules to the
Registration Statement, which have not been described or filed as required.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior
to each Closing Date, any offering material in connection with the offering and sale of the Securities other than the Final Prospectus,
and any other materials permitted by the Securities Act.
(d) Subsidiaries.
All of the direct and indirect subsidiaries of the Company (the “Subsidiaries”) are set forth in the Registration
Statement. Except as set forth in the Registration Statement, the Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any liens, charges, security interests, encumbrances, rights of
first refusal, preemptive rights or other restrictions (collectively, “Liens”), and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.
(e) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of this Agreement or any other agreement entered into between the Company and the Investors, (ii) a material
adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement or the transactions contemplated under the Prospectus Supplement
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and no an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened
(“Proceeding”) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.
(f) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and the Preliminary Prospectus and the Final Prospectus and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby and under the Preliminary Prospectus and the Final Prospectus have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company, the Company’s Board of Directors
(the “Board of Directors”) or the Company’s stockholders in connection therewith other than in connection
with the Required Approvals (as defined below). This Agreement has been duly executed by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(g) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Final Prospectus, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby
and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the
creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(h) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of this Agreement and the transactions contemplated
pursuant to the Preliminary Prospectus and the Final Prospectus other than: (i) the filing with the Commission of the Final Prospectus,
(ii) application(s) to the Nasdaq Capital Market (the “Trading Market”) for the listing of the Shares for trading
thereon in the time and manner required thereby and (iii) such filings as are required to be made under applicable state securities
laws (collectively, the “Required Approvals”).
(i) Issuance
of the Securities; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the Final
Prospectus, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Warrants are duly authorized and valid and binding obligations of the Company in accordance with their terms. The shares underlying
the Warrants (the “Warrant Shares”), when issued in accordance with the terms of the Warrants, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly
authorized capital stock the maximum number of shares of Common Stock issuable pursuant to the Final Prospectus.
(j) Capitalization.
The capitalization of the Company is as set forth in the Preliminary Prospectus and the Final Prospectus. The Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of securities of the Company
or the Subsidiaries which would entitle the holder thereof to acquire at any time any Common Stock, including, without limitation,
any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or
exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (“Common Stock Equivalents”)
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this
Agreement and the transactions contemplated pursuant to the Preliminary Prospectus or the Final Prospectus. Except as a result
of the purchase and sale of the Securities as disclosed in the Final Prospectus, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock,
or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company
to issue shares of Common Stock or other securities to any Person (other than the Investors) and will not result in a right of
any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All
of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the
Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s stockholders.
(k) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, together with the Final Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as
of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(l) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the Preliminary Prospectus and the Final Prospectus, except as specifically disclosed in the Preliminary Prospectus and
the Final Prospectus, (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than
(A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of the Securities contemplated by the Final Prospectus, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective business, prospects, properties, operations, assets or financial
condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is
made.
(m) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of this Agreement and the transactions
contemplated pursuant to the Final Prospectus or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or
any Subsidiary under the Exchange Act or the Securities Act.
(n) Labor
Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. No executive officer, to the knowledge of the Company, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the
continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with
respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(o) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any
court, arbitrator or governmental body or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material Adverse Effect.
(p) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the Final Prospectus,
except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit.
(q) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and Liens for the payment
of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which
the Company and the Subsidiaries are in compliance.
(r) Patents
and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or material for use in connection with their respective businesses as described in the Final
Prospectus and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the
latest audited financial statements included within the Preliminary Prospectus and the Final Prospectus, a notice (written or otherwise)
of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person,
except as would not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(s) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.
(t) Transactions
With Affiliates and Employees. Except as set forth in the Preliminary Prospectus and the Final Prospectus, none of the officers
or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of
the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(u) Sarbanes-Oxley;
Internal Accounting Controls. The Company is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act
of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof and as of each Closing Date. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls
and procedures as of the end of the period covered by the Company’s most recently filed periodic report under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under
the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the Company’s internal
control over financial reporting (as such term is defined in the Exchange Act) that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting.
(v) Certain
Fees. Except as set forth in the Final Prospectus, no brokerage or finder’s fees or commissions are or will be payable
by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement and the transactions contemplated pursuant to the Final Prospectus.
The Investors shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement
and the transactions contemplated pursuant to the Final Prospectus.
(w) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will
not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject
to registration under the Investment Company Act of 1940, as amended.
(x) Registration
Rights. No Person has any right to cause the Company to effect the registration under the Securities Act of any securities
of the Company.
(y) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and maintenance requirements.
(z) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Investors as a result of the Investors and
the Company fulfilling their obligations or exercising their rights under this Agreement and the transactions contemplated pursuant
to the Final Prospectus, including without limitation as a result of the Company’s issuance of the Securities and the Investors’
ownership of the Securities.
(aa) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by this Agreement and the transactions
contemplated pursuant to the Preliminary Prospectus and the Final Prospectus, the Company confirms that neither it nor any other
Person acting on its behalf has provided any of the Investors or their agents or counsel with any information that it believes
constitutes or might constitute material, non-public information which is not otherwise disclosed in the Preliminary Prospectus
and the Final Prospectus. The Company understands and confirms that the Investors will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Investors
regarding the Company, its business and the transactions contemplated hereby, is true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading.
(bb) No
Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would
cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(cc) Solvency.
Based on the consolidated financial condition of the Company as of each Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds
the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry
on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect
of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to
pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).
The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation
under the bankruptcy or reorganization laws of any jurisdiction within one year from each Closing Date. The SEC Reports sets forth
as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $250,000 (other than trade accounts payable incurred in the ordinary course of
business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not
the same are or should be reflected in the Company’s balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $250,000 due under leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.
(dd) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and each Subsidiary (i) has made or filed all United States federal and state income and all
foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim.
(ee) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of
the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation
of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(ff) Accountants.
The Company’s accounting firm is set forth in the Preliminary Prospectus and the Final Prospectus. To the knowledge and belief
of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the year ending
June 30, 2015.
(gg) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any
other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement
agent in connection with the placement of the Securities.
(hh) Office
of Foreign Assets Control. Neither the Company nor, to the Company's knowledge, any director, officer, agent, employee or affiliate
of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”).
(ii) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Investor’s
request.
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act
of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(kk) Money
Laundering. The operations of the Company are and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ll) Certificates.
Any certificate signed by an officer of the Company and delivered to the Placement Agent or to counsel for the Placement
Agent shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth
therein.
(mm) Reliance.
The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(nn) FINRA
Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the Company.
Section 3. Delivery
and Payment. Each Closing shall occur at the offices of the Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas,
New York, New York 10105 (or at such other place as shall be agreed upon by the Placement Agent and the Company) (“Placement
Agent Counsel”). Subject to the terms and conditions hereof, at each Closing payment of the purchase price for the Shares
and Warrants sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, and such
Securities shall be registered in such name or names and shall be in such denominations, as the Placement Agent may request at
least one business day before the time of purchase (as defined below).
Deliveries of the documents
with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All actions taken
at a Closing shall be deemed to have occurred simultaneously.
Section 4. Covenants
and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any
amendment to the Registration Statement has been filed or becomes effective or any supplement to the Preliminary Prospectus or
the Final Prospectus has been filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus for so long as the delivery of a
prospectus is required in connection with the Offering. The Company will advise the Placement Agent, promptly after it receives
notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement any Prospectus
or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of the Preliminary
Prospectus or the Final Prospectus or any amendment or supplement thereto or any post-effective amendment to the Registration Statement,
of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the institution or threatened
institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional information. The Company shall use its best efforts to prevent
the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop
order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of
such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new
registration statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with
the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the
timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Company under
such Rule 424(b) are received in a timely manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors may
reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or required to file such a consent, and provided further
that the Company shall not be required to produce any new disclosure document other than a Prospectus Supplement. The Company will,
from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications
in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The Company will
advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating to)
the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its
best efforts to obtain the withdrawal thereof at the earliest possible moment. The Company shall reimburse the Placement Agent
the sum of $5,000 for its Blue Sky counsel fees at the first Closing.
(c) Amendments
and Supplements to the Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, and the Preliminary Prospectus and the Final Prospectus. If during the period in which a prospectus
is required by law to be delivered in connection with the distribution of Securities (the “Prospectus Delivery Period”),
any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel
for the Placement Agent, it becomes necessary to amend or supplement the Preliminary Prospectus or the Final Prospectus in order
to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading,
the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers,
an appropriate amendment to the Registration Statement or supplement to the Preliminary Prospectus or the Final Prospectus, s applicable,
that is necessary in order to make the statements in the applicable Prospectus as so amended or supplemented, in the light of the
circumstances under which they were made, as the case may be, not misleading, or so that the Registration Statement, or any Prospectus
Supplement, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the
Preliminary Prospectus or the Final Prospectus or any Prospectus Supplement in connection with the Offering, the Company will furnish
the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to
which the Placement Agent reasonably objects.
(d) Copies
of any Amendments and Supplements to a Prospectus Supplement. The Company will furnish the Placement Agent, without charge,
during the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies
of the Preliminary Prospectus and the Final Prospectus and any Prospectus Supplement and any amendments and supplements thereto
as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent,
make any offer relating to the Securities that would constitute an Company Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly
consents in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company
covenants that it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply
with the requirements of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record keeping. The Parties hereto agree that the free writing prospectus
filed with the Commission on or about February 23, 2015 is a Permitted Free Writing Prospectus.
(f) Transfer
Agent; Warrant Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock and warrant
agent for the Warrants.
(g) Earnings
Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event
not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and to
the Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing
Date, that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission
and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the
manner required by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent
or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable to the Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and each is a third
party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription
or other agreement with Investors in the Offering.
(j) No
Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any
securities of the Company in violation of Regulation M.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board
of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent's
prior written consent.
Section 5. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy
of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date hereof
and as of each Closing Date as though then made (except if any such representation or warranty speaks as to a different date),
to the timely performance by each of the Company of its covenants and other obligations hereunder on and as of such dates, and
to each of the following additional conditions:
(a) Accountants’
Comfort Letter. On the date hereof, the Placement Agent shall have received, and the Company shall have caused to be delivered
to the Placement Agent, a letter from Friedman LLP (the independent registered public accounting firm of the Company), addressed
to the Placement Agent, dated as of the date hereof, in form and substance satisfactory to the Placement Agent. The letter shall
not disclose any change in the condition (financial or other), earnings, operations, business or prospects of the Company from
that set forth in the Incorporated Documents or the applicable Prospectus Supplement, which, in the Placement Agent's sole judgment,
is material and adverse and that makes it, in the Placement Agent's sole judgment, impracticable or inadvisable to proceed with
the Offering of the Securities as contemplated by such Prospectus Supplement.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. The Final Prospectus (in accordance with Rule 424(b))
and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed
with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Preliminary or Final Prospectus or Prospectus Supplement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending
the distribution of the Securities or any other securities of the Company shall have been issued by any securities commission,
securities regulatory authority or stock exchange and no proceedings for that purpose shall have been instituted or shall be pending
or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange;
all requests for additional information on the part of the Commission shall have been complied with; and the FINRA shall have raised
no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and the Final Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a
manner reasonably satisfactory to the Placement Agent's counsel, and such counsel shall have been furnished with such papers and
information as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
The Company shall provide evidence of due organization and current existence of each of its operating subsidiaries.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the
Placement Agent's sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Change
or Material Adverse Effect.
(e) Opinion
of Counsel for the Company. The Placement Agent shall have received on each Closing Date the favorable opinion of US legal
counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter, addressed to
the Placement Agent and in form and substance satisfactory to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent
shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Preliminary Prospectus,
the Final Prospectus and any Prospectus Supplement, and this Agreement and to the further effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date,
and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus
or any Prospectus Supplement has been issued and no proceedings for that purpose have been instituted or are pending or, to the
Company’s knowledge, threatened under the Securities Act; no order having the effect of ceasing or suspending the distribution
of the Securities or any other securities of the Company has been issued by any securities commission, securities regulatory authority
or stock exchange in the United States and no proceedings for that purpose have been instituted or are pending or, to the knowledge
of the Company, contemplated by any securities commission, securities regulatory authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement contained all material information required to be included therein by the Securities Act
and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material
respects conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the
Commission thereunder, as the case may be, and the Registration Statement did not and does not include any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective
date of the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of
the Commission thereunder to be set forth in the Final Prospectus or Prospectus Supplement which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, there has not been: (a) any Material Adverse
Change; (b) any transaction that is material to the Company and the Subsidiaries taken as a whole, except transactions entered
into in the ordinary course of business; (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries
taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary course of business; (d)
any material change in the capital stock (except changes thereto resulting from the exercise of outstanding stock options or warrants)
or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary
which has been sustained or will have been sustained which has a Material Adverse Effect.
(g) Bring-down
Comfort Letter. On each Closing Date, the Placement Agent shall have received from Friedman LLP, or such
other independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form and substance
satisfactory to the Placement Agent, to the effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (a) of this Section 5, except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to such Closing Date.
(h) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and
the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Nasdaq Capital Market,
nor shall the Company have received any information suggesting that the Commission or the Nasdaq Capital Market is contemplating
terminating such registration or listing.
(i) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such
information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent
by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution) and Section
8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 6. Payment
of Expenses. The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby, including, without limitation: (i) all
expenses incident to the issuance, delivery and qualification of the Securities (including all printing and engraving costs); (ii)
all fees and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary issue, transfer and other stamp
taxes in connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the Preliminary Prospectus, the Final Prospectus and each Prospectus Supplement,
and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses
incurred by the Company or the Placement Agent in connection with qualifying or registering (or obtaining exemptions from the qualification
or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws or the securities
laws of any other country, and, if requested by the Placement Agent, preparing and printing a “Blue Sky Survey,”
an “International Blue Sky Survey” or other memorandum, and any supplements thereto, advising the Placement
Agent of such qualifications, registrations and exemptions, provided ,that such counsel fees shall be limited to $5,000; (vii)
if applicable, the filing fees incident to the review and approval by the FINRA of the Placement Agent's participation in the offering
and distribution of the Securities; (viii) the fees and expenses associated with including the Securities on the Trading Market;
(ix) all costs and expenses incident to the travel and accommodation of the Company’s and the Placement Agent's employees
on the “roadshow,” limited in the case of the Placement Agent, to $20,000; and (x) all other fees, costs and
expenses referred to in Part II of the Registration Statement.
Section 7. Indemnification
and Contribution.
(a) The Company
agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its
affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all reasonable fees and expenses (including the reasonable fees and expenses of
one counsel for all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”)
as they are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any Actions, whether or not any
Indemnified Person is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or by any omission or alleged omission to state therein
a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading
(other than untrue statements or alleged untrue statements in, or omissions or alleged omissions from, information relating to
an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use in the Registration Statement
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person
pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection
with any such advice, services or transactions; provided, however, that, in no case shall the Company be responsible for
any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such
Indemnified Person's (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services
referred to above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale
of the Securities in the Offering which were not authorized for such use by the Company and which use constitutes gross negligence
or willful misconduct or (z) were based upon information in the Registration Statement or any Prospectus, including the Final Prospectus,
provided by the Placement Agent expressly to be included in the sections titled “Plan of Distribution” or “Placement
Agent Warrants” or relating thereto. The Company also agrees to reimburse each Indemnified Person for all Expenses as they
are incurred in connection with enforcing such Indemnified Person's rights under this Agreement; provided, however,
that notwithstanding anything to the contrary provided herein or elsewhere, if it is finally judicially determined that the Company
was not liable for any paid Liabilities and/or Expenses of any Indemnified Person, each such Indemnified Person shall reimburse
the Company for all paid Liabilities and/or Expenses of the Company; provided, further, that as a condition to paying
any such Liabilities and/or Expenses of any Indemnified Person such Indemnified Person agrees to sign an undertaking to immediately
reimburse the Company for all Company paid Liabilities and Expenses paid for on behalf of such person within five (5) days of it
being determined that the Company was not required under this Agreement to pay any such Liabilities and/or Expenses of such Indemnified
Person.
(b) Upon
receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity
may be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure
by any Indemnified Person so to notify the Company shall not relieve the Company from any liability which the Company may have
on account of this indemnity or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced
by such failure. The Company shall, if requested by the Placement Agent, assume the defense of any such Action including the employment
of counsel reasonably satisfactory to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense
and employ counsel or (ii) the named parties to any such Action (including any impeded parties) include such Indemnified Person
and the Company, and such Indemnified Person shall have been advised in the reasonable opinion of counsel that there is an actual
conflict of interest that prevents the counsel selected by the Company from representing both the Company (or another client of
such counsel) and any Indemnified Person; provided that the Company shall not in such event be responsible hereunder for the fees
and expenses of more than one firm of separate counsel for all Indemnified Persons in connection with any Action or related Actions,
in addition to any local counsel. The Company shall not be liable for any settlement of any Action effected without its written
consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the
Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry of any judgment in or otherwise
seek to terminate any pending or threatened Action in respect of which indemnification or contribution may be sought hereunder
(whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes
an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification or
contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the
Company shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate
to reflect (i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person,
on the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one
hand, and the Placement Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such
Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company
contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities
and Expenses in excess of the amount of fees actually received by the Placement Agent pursuant to this Agreement. For purposes
of this paragraph, the relative benefits to the Company, on the one hand, and to the Placement Agent on the other hand, of the
matters contemplated by this Agreement shall be deemed to be in the same proportion as (a) the total aggregate dollar amount received
by the Company in the Offering, whether or not any such transaction is consummated, bears to (b) the fees paid to the Placement
Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this
Agreement, the transactions contemplated thereby or any Indemnified Person's actions or inactions in connection with any such advice,
services or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to
have resulted solely from such Indemnified Person's gross negligence or willful misconduct in connection with any such advice,
actions, inactions or services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person's services
under or in connection with, this Agreement.
Section 8. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent,
the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent,
or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Agreement.
Section 9. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Placement Agent to the address
set forth above, Attn: Mr. David Bocchi, Managing Director of Investment Banking, Facsimile: (212)
813-1047
With a copy to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th
Floor
New York, New York 10105
Facsimile: (212) 401-4741
Attention: Robert Charron
If to the Company:
Sino-Global Shipping America, Ltd.
1044 Northern Boulevard
Facsimile: (718) 888-1148
Attention: Anthony Chan
With a copy to:
Gusrae Kaplan Nusbaum PLLC
120 Wall Street, 25th Floor
New York, NY 10005
Facsimile: (212) 809-5449
Attention: Lawrence G. Nusbaum, Esq.
Any party hereto may
change the address for receipt of communications by giving written notice to the others.
Section 10. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.
Section 11. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section 12. Governing
Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this engagement letter
and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the
Placement Agent and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement
letter and/or the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York,
or in the United States District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter
to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action
or proceeding. Each of the Placement Agent and the Company further agrees to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such
suit, action or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement Agent’s
address shall be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or proceeding.
Notwithstanding any provision of this engagement letter to the contrary, the Company agrees that neither the Placement Agent nor
its affiliates, and the respective officers, directors, employees, agents and representatives of the Placement Agent, its affiliates
and each other person, if any, controlling the Placement Agent or any of its affiliates, shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction described
herein except for any such liability for losses, claims, damages or liabilities incurred by us that are finally judicially determined
to have resulted from the bad faith or gross negligence of such individuals or entities. If either party shall commence an action
or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
Section 13. General
Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof, other than the expense reimbursement
provisions of the engagement letter dated January 21, 2015. This Agreement may be executed in two or more counterparts, each one
of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein are for the
convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arms length,
are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only
those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those
of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement
Agent arising from an alleged breach of fiduciary duty in connection with the offering of the Securities
[The remainder of this page has been
intentionally left blank.]
If the foregoing is
in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
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Very truly yours, |
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SINO-GLOBAL SHIPPING AMERICA, LTD.,
a Virginia corporation |
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By: |
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Name: |
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Title: |
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The foregoing Placement
Agency Agreement is hereby confirmed and accepted as of the date first above written.
AEGIS CAPITAL CORP. |
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By: |
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Exhibit
4.2
SINO-GLOBAL SHIPPING AMERICA,
LTD.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 2015-[ ]
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Number of Warrants: [ ] |
Date of Issuance: _________,
2015 (“Issuance Date”)
Expiration Date: __________, 2020 (“Expiration
Date”)
Sino-Global
Shipping America, Ltd., a Virginia corporation (the “Company”), certifies that, for good and valuable consideration,
the receipt and sufficiency of which are acknowledged, [ ], the registered holder hereof or its permitted assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price then in effect, upon surrender
of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “Warrant”), at any time or times on or after the date hereof (the “Exercisability Date”),
but not after 5:30 p.m., New York Time, on the Expiration Date (the “Warrant Period”), ________ (______) fully
paid and nonassessable shares (the “Warrant Shares”) of Common Stock (as defined below). Except as otherwise
defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 16.
1.
EXERCISE OF WARRANT.
(a)
Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations
set forth in Section 1(d)), this Warrant may be exercised by the Holder on any day on or after the Exercisability Date through
but not after 5:30 PM, New York Time on the Expiration Date, in whole or in part (but not as to fractional shares), by (i) delivery
of a properly completed and duly executed written notice to Computershare Inc., a Delaware corporation and its wholly-owned subsidiary
Computershare Trust Company, N.A., a federally chartered trust company (collectively, the “Warrant Agent”),
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise
this Warrant, and (ii) if both (A) the Holder is not electing (or is not eligible for) a Cashless Exercise pursuant to Section
1(c) of this Warrant and (B) a registration statement registering the issuance and resale of the Warrant Shares under the Securities
Act of 1933, as amended (the “Securities Act”), is effective and available for the issuance and resale of the
Warrant Shares, or an exemption from registration under the Securities Act is available for the issuance and resale of the Warrant
Shares, payment to the Warrant Agent of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares
as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash or wire transfer of immediately
available funds (a “Cash Exercise”). The Holder shall not be required to surrender this Warrant in order to
effect an exercise hereunder, provided that in the event of an exercise of this Warrant for all Warrant Shares then issuable hereunder,
this Warrant must be surrendered to the Warrant Agent by the second (2nd) Trading Day following the date on which the
Warrant Agent has received each of the following (the “Exercise Delivery Items”) (i) the Exercise Notice, (ii)
if this Warrant is being exercised pursuant to a Cash Exercise, the Aggregate Exercise Price, and (iii) in the case the Holder
elects to have the Warrant Shares issued in uncertificated form in street name (CEDE & Co.), written notice of such election
(an “Uncertificated Request”) on the Exercise Notice. On or before the third (3rd) Trading Day following
the date on which the Warrant Agent has received each of the following Exercise Delivery Items, as applicable (i) the Exercise
Notice duly completed and executed by the Holder, (ii) in the case of a Cash Exercise, the Aggregate Exercise Price, and (iii)
in the case the Holder desires to have the Warrant Shares issued on an uncertificated basis in street name (CEDE & Co.), an
Uncertificated Request (the “Share Delivery Date”), the Warrant Agent shall credit such aggregate number of
shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s designated brokerage firm’s
(or such brokerage firm’s clearing firm if such brokerage firm is not a clearing broker or does not have an account at DTC),
balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system
provided the Holder causes its prime broker or their clearing agent to initiate a DWAC DEPOSIT for the number of Common Shares,
or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program (the “FAST Program”)
or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight
courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in
the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Delivery Items and surrender of this Warrant, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date such Warrant Shares are credited to the Holder’s designated brokerage firm’s (or such brokerage firm’s
clearing firm if such brokerage firm is not a clearing broker or does not have an account at DTC) balance account or the date of
delivery of the certificates evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with
any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise
is greater than the number of Warrant Shares being acquired upon an exercise, then the Warrant Agent shall as soon as practicable
and in no event later than three (3) Trading Days after any proper exercise of this Warrant in accordance with this Section
1(a) and at the Company’s own expense, issue a new Warrant (in accordance with Section 7(e)) representing the
right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number
of Warrant Shares with respect to which this Warrant is exercised. The Company shall pay any and all taxes that may be payable
with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant; provided, however, that
the Company shall not be required to pay any tax which may be payable based on the income of the Holder or 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 or an affiliate
thereof. 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.
In
addition to any other rights available to the Holder, if the Company fails to cause the Warrant Agent to transmit to the Holder
a certificate or the certificates representing the Warrant Shares or to credit the Holder’s brokerage firm’s (or such
brokerage firm’s clearing firm if such Holder’s brokerage firm is not a clearing broker or does not have an account
at DTC) balance account with DTC for such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise
pursuant to an exercise on or before the Share Delivery Date, and if after such date the Holder purchases (in an open market transaction
or otherwise) or the Holder’s brokerage firm otherwise purchases, 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 within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either
(i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation
to deliver such certificate (and to issue such Warrant Shares or credit such Holder’s brokerage firm’s (or such brokerage
firm’s clearing firm if such Holder’s brokerage firm is not a clearing broker or does not have an account at DTC) balance
account with DTC) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates
representing such Warrant Shares or credit such Holder’s designated brokerage firm’s (or such brokerage firm’s
designees) balance account with DTC and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) the Weighted Average Price of a share of Common Stock on the
date of exercise.
(b)
Exercise Price. For purposes of this Warrant, “Exercise Price” means $____ per share of Common
Stock, subject to adjustment as provided herein.
(c)
Cashless Exercise. Notwithstanding anything contained herein to the contrary, if a registration statement registering
the issuance and resale of the Warrant Shares under the Securities Act is not effective or available for the issuance and resale
of the Warrant Shares or an exemption from registration under the Securities Act is not available for the issuance of the Warrant
Shares, the Holder may, but only under such circumstances, in its sole discretion, exercise this Warrant in whole or in part and,
in lieu of making the cash payment otherwise contemplated to be made to the Warrant Agent upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x
C)
B
For purposes of the foregoing
formula:
A=
the total number of shares with respect to which this Warrant is then being exercised.
B=
the Weighted Average Price of the shares of Common Stock (as reported by Bloomberg) on the date immediately preceding the date
of the Exercise Notice.
C=
the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
(d)
Limitations on Exercises. (1) The Company shall not effect the exercise of this Warrant, and the Holder shall not
have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Holder (together with such
Holder’s affiliates and any other Persons acting as a group together) would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes
of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Person and its affiliates
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining,
unexercised portion of this Warrant beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the
unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates
(including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion
or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), it being acknowledged that the Company is not representing to the Holder that such calculation
is in compliance with Section 13(d) of the Exchange Act, and the Holder is solely responsible for any schedules required to be
filed in accordance therewith. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock as reflected in the most recent of the following: (1) the Company’s
most recently filed: Form 10-K, Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities
and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the
Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon
the written or oral request of the Holder, where such request indicates that it is being made pursuant to this Warrant, the Company
shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company, including the Warrants, by the Holder and its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may increase or decrease the Maximum
Percentage to any other percentage not in excess of 9.99% specified in such notice; provided, that (i) any such increase
will not be effective until the 61st day after such notice is delivered to the Company and (ii) any such increase or decrease will
apply only to the Holder and not to any other holder of Warrants.
(e)
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise,
the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price.
| 2. | ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise
Price and the number of Warrant Shares shall be adjusted from time to time as follows (which adjustment shall be calculated by
the Company): |
(a)
Adjustment upon Subdivision or Combination of Shares of Common Stock. If the Company at any time on or after the
Issuance Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time on or
after the Issuance Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under this Section 2(a) shall become
effective at the close of business on the date the subdivision or combination becomes effective.
(b)
Other Events. If any event occurs of the type contemplated by the provisions of Section 2(a) but not expressly provided
for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other
equity rights, pro rata to all or the record holders of any class of the Company’s Common Stock), then the Company’s
Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares so as to protect
the rights of the Holder; provided, that no such adjustment pursuant to this Section 2(b) will increase the Exercise Price
or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2.
3.
RIGHTS UPON DISTRIBUTION OF ASSETS. If the Company shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time
after the issuance of this Warrant, then, in each such case:
(a)
any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of
holders of shares of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business
on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i) the numerator shall be
the Weighted Average Price of the shares of Common Stock on the Trading Day immediately preceding such record date minus the value
of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock,
and (ii) the denominator shall be the Weighted Average Price of the shares of Common Stock on the Trading Day immediately preceding
such record date; and
(b)
the number of Warrant Shares shall be increased to a number of shares equal to the number of shares of Common Stock obtainable
immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock
entitled to receive the Distribution multiplied by the reciprocal of the fraction set forth in the immediately preceding paragraph
(a); provided, that in the event that the Distribution is of shares of Common Stock or common stock of a company whose common
shares are traded on a national securities exchange or a national automated quotation system (“Other Shares of Common
Stock”), then the Holder may elect to receive a warrant to purchase Other Shares of Common Stock in lieu of an increase
in the number of Warrant Shares, the terms of which shall be identical to those of this Warrant, except that such warrant shall
be exercisable for the number of shares of Other Shares of Common Stock that would have been payable to the Holder pursuant to
the Distribution had the Holder exercised this Warrant immediately prior to such record date and with an aggregate exercise price
equal to the product of the amount by which the exercise price of this Warrant was decreased with respect to the Distribution pursuant
to the terms of the immediately preceding paragraph (a) and the number of Warrant Shares calculated in accordance with the first
part of this paragraph (b).
| 4. | PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS. |
(a)
Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time prior to the Expiration
Date the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property pro rata to all of the record holders of any class of shares of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which
the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of
this Warrant (without regard to any limitations on the exercise of this Warrant) immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.
(b) Fundamental
Transactions. Upon the occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to
the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the
Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor
Entity had been named as the Company herein. Upon consummation of the Fundamental Transaction, the Successor Entity shall
deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the
consummation of the Fundamental Transaction, in lieu of the shares of the Common Stock (or other securities, cash, assets or
other property purchasable upon the exercise of the Warrant prior to such Fundamental Transaction), such shares of stock,
securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights), if
any, that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Warrant
been exercised immediately prior to such Fundamental Transaction, as adjusted in accordance with the provisions of this
Warrant. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with
respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make
appropriate provision to ensure that the Holder will thereafter have the right to receive upon exercise of this Warrant
within 90 days after the consummation of the Fundamental Transaction but, in any event, prior to the Expiration Date, in lieu
of the shares of the Common Stock (or other securities, cash, assets or other property) purchasable upon the exercise of the
Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property
whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive
upon the happening of such Fundamental Transaction had the Warrant been exercised immediately prior to such
Fundamental Transaction.
5.
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 shares of Common Stock which are then issuable and
deliverable upon the exercise of this entire Warrant, free from preemptive or any other contingent purchase rights of Persons other
than the Holder (taking into account the adjustments and restrictions in Section 2). Such reservation shall comply with the provisions
of Section 1. The Company covenants that all shares of Common Stock 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. The Company will take all such actions as may be reasonably necessary to assure that such shares of Common Stock
may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities
exchange or automated quotation system upon which the Common Stock may be listed.
6.
WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in
such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder
of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder,
solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any
right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of
stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the
Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
| 7. | REGISTRATION AND REISSUANCE OF WARRANTS. |
(a)
Registration of Warrant. The Company, its Transfer Agent, and/or Warrant Agent shall register this Warrant, upon
the records to be maintained by the Company, its Transfer Agent, and/or Warrant Agent 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. The Company, its Transfer Agent, and/or Warrant Agent shall also register any transfer, exchange,
reissuance or cancellation of any portion of this Warrant in the Warrant Register.
(b)
Transfer of Warrant. This Warrant may be offered for sale, sold, transferred or assigned without the consent of the
Company, except as may otherwise be required by applicable securities laws. Subject to applicable securities laws, if this Warrant
is to be transferred, the Holder shall surrender this Warrant to the Warrant Agent, as directed by the Company, together with all
applicable transfer taxes, whereupon the Company will, or will cause its Warrant Agent to, forthwith issue and deliver upon the
order of the Holder a new Warrant (in accordance with Section 7(e)), registered as the Holder may request, representing the right
to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then
underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(e)) to the Holder representing the right
to purchase the number of Warrant Shares not being transferred. 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 in respect of the new Warrant that the Holder
has in respect of this Warrant.
(c)
Lost, Stolen or Mutilated Warrant. If any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed,
the Company shall issue, and the Warrant Agent shall countersign and deliver, in exchange and substitution for, and upon cancellation
of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of Warrants (in accordance with Section 7(e)), but only
upon receipt of evidence reasonably satisfactory to the Warrant Agent of the loss, theft or destruction of such Warrant Certificate
and an affidavit and the posting of an open penalty surety bond satisfactory to the Warrant Agent and holding the Warrant Agent
and Company harmless, absent notice to Warrant Agent that such certificates have been acquired by a bona fide purchaser. Warrant
Agent may, at its option, issue replacement Warrants for mutilated certificates upon presentation thereof without such indemnity.
Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Warrant Agent may prescribe and as required by Section 8-405 of the Uniform Commercial Code as in effect
in the State of New York.1
(d)
Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the office
of the Warrant Agent designated for such purpose, as directed by the Company, together with all applicable transfer taxes, for
a new Warrant or Warrants (in accordance with Section 7(e)) representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the Holder at the time of such surrender; provided, however, that the Company, its Transfer
Agent, and/or Warrant Agent, as directed by the Company, shall not be required to issue Warrants for fractional shares of Common
Stock hereunder. Such exchange is subject to applicable law and the reasonable requirements of the Warrant Agent which requirements
shall include reasonable evidence of authority, including a signature guarantee from an eligible guarantor institution participating
in a signature guarantee program approved by the Securities Transfer Association, and any other reasonable evidence of authority
that may be required by the Warrant Agent.
(e)
Issuance of New Warrants. Whenever the Warrant Agent, as directed by the Company, is required to issue a new Warrant pursuant
to the terms of this Warrant, such new Warrant shall (i) be of like tenor with this Warrant, (ii) represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant
being issued pursuant to Section 7(b) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number
of shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number
of Warrant Shares then underlying this Warrant), (iii) have an issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date and (iv) have the same rights and conditions as this Warrant.
8.
NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice
shall be given in accordance with the information set forth in the Warrant Register. The Company shall give written notice to the
Holder (i) reasonably promptly following any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying,
the calculation of such adjustment and (ii) at least ten (10) days prior to the date on which the Company closes its books or takes
a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances
or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to
the record holders of any class of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental
Transaction, dissolution or liquidation; provided, that in each case, such information shall be made known to the public
prior to or in conjunction with such notice being provided to the Holder.
9.
NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate
of Incorporation, Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be
required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase
the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect,
(ii) shall use all reasonable efforts to take all such actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant and (iii) shall,
so long as any of the Warrants are outstanding, take all action necessary to reserve and keep available out of its authorized and
unissued shares of Common Stock, solely for the purpose of effecting the exercise of the Warrants, the number of shares of Common
Stock as shall from time to time be necessary to effect the exercise of the Warrants then outstanding (without regard to any limitations
on exercise).
______________________________
1
NTD: Changes made to conform provision to the Warrant Agreement.
10.
AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company
has obtained the written consent of the Holder.
11.
LIMITATION OF LIABILITY. No provision hereof, in the absence of any affirmative action by Holder to exercise this
Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability
of Holder for the purchase price of any Warrant Shares or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
12.
GOVERNING LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of
the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of
New York.
13.
CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall
not be construed against any person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall
not form part of, or affect the interpretation of, this Warrant.
14.
DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall submit the disputed determinations or arithmetic calculations via email or facsimile within
two (2) Trading Days of receipt of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder
and the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares within five
(5) Trading Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall,
within two (2) Trading Days submit via email or facsimile (a) the disputed determination of the Exercise Price to an independent,
reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company’s independent, outside accountant. The Company shall cause the investment bank or the accountant,
as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later
than ten (10) Trading Days from the time it receives the disputed determinations or calculations. Such investment bank’s
or accountant’s determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable error.
The expenses of the investment bank and accountant will be borne by the Company unless the investment bank or accountant determines
that the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares by the Holder was incorrect, in
which case the expenses of the investment bank and accountant will be borne by the Holder.
15.
REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative
and in addition to all other remedies available under this Warrant, at law or in equity (including a decree of specific performance
and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure
by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder
may cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore
agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to
all other available remedies, to seek an injunction restraining any breach. Notwithstanding the foregoing or anything else herein
to the contrary, if the Company is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required
pursuant to the terms hereof, the Company shall have no obligation to pay to the Holder any cash or other consideration or otherwise
“net cash settle” this Warrant.
16.
CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a)
“Bloomberg” means Bloomberg Financial Markets.
(b)
“Common Stock” means (i) the Company’s shares of Common Stock, no par value, and (ii) any share capital
into which such Common Stock shall have been changed or any share capital resulting from a reclassification of such Common Stock.
(c)“Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable
or exchangeable for shares of Common Stock.
(d)
“Eligible Market” means the Principal Market, The New York Stock Exchange, Inc., the NYSE Amex LLC, The
NASDAQ Stock Market, or the OTCQB or OTCQX.
(e)
“Fundamental Transaction” means that (i) the Company or any of its direct and/or indirect subsidiaries
that generate material revenues or hold material assets necessary for the Company to operate its business, shall directly or indirectly
(1) consolidate or merge with or into any other entity other than a direct and/or indirect subsidiary of the Company, or (2) sell,
lease, license, other than for purposes of granting a security interest assign, transfer, convey or otherwise dispose of all or
substantially all of the Company’s and its subsidiaries collective properties or assets to any other person or entity, other
than a direct and/or indirect subsidiary of the Company, (3) a non-affiliated third party purchases and/or acquires through
a tender or exchange offer 50% or more of the outstanding shares of the Company’s voting stock and/or (4) consummates
a stock acquisition or other business combination with any other entity whereby such entity acquires more than 50% of the outstanding
shares of the Company’s voting stock and a majority of the Company’s Board of Directors at the time of such transaction
are no longer directors of the Company or its Successor Entity following such acquisition and/or business combination; provided,
however, that notwithstanding anything to the contrary provided herein or elsewhere this clause (i) shall not apply to (1)
any reorganization, recapitalization or reclassification of the Common Stock in which holders of the Company’s voting power
immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization
or reclassification to hold publicly traded securities on an Eligible Market and, directly or indirectly, the voting power in the
surviving entity or entities necessary to elect a majority of the members of the board of directors (or their equivalent if other
than a corporation) of such entity or entities, or (2) a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company, or (ii) any “person” or “group” (as these terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting
power represented by the Company’s issued and outstanding voting stock and a majority of the Company’s Board of Directors
at the time of such acquisition are no longer directors of the Company following such acquisition; provided , however , that this
clause (ii) shall not apply with respect to any person or group (and/or any affiliate of any such persons) who (1) is the
beneficial owner, directly or indirectly, of at least 50% of the aggregate voting power represented by the Company’s issued
and outstanding voting stock as of the Initial Issuance Date, or (2) who receives securities from the Company’s in connection
with or to finance acquisitions by us of any business and/or assets of a third party, or (3) purchased the Company’s securities,
provided that the Company remains publicly traded on an Eligible Market.
(f)
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or
Convertible Securities.
(g)“Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock
or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity,
the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(h)
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.
(i)
“Principal Market” means The NASDAQ Capital Market.
(j)
“Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting
from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such
Fundamental Transaction shall have been entered into.
(k)
“Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal
Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market
on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on which the
Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended
from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance
the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).
(l)
“Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price
for such security on the Principal Market during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00
p.m., New York City time, as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00 p.m., New York City
time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security
as reported in the “pink sheets” by Pink OTC Markets Inc. If the Weighted Average Price cannot be calculated for such
security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair
market value of such security, then such dispute shall be resolved pursuant to Section 14 with the term “Weighted Average
Price” being substituted for the term “Exercise Price.” All such determinations shall be appropriately adjusted
for any share dividend, share split or other similar transaction during such period.
[Signature Page Follows]
IN WITNESS WHEREOF, the
Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.
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SINO-GLOBAL SHIPPING AMERICA, LTD. |
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SEAL: |
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Chairman |
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Attest: |
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By: |
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Secretary |
EXHIBIT
A
EXERCISE
NOTICE
TO BE EXECUTED BY THE
REGISTERED HOLDER TO EXERCISE
THIS WARRANT TO PURCHASE COMMON STOCK
SINO-GLOBAL SHIPPING AMERICA,
LTD.
The undersigned
holder hereby exercises the right to purchase of the shares of Common Stock (“Warrant Shares”) of Sino-Global
Shipping America, Ltd., a Virginia corporation (the “Company”), evidenced by the attached Warrant to Purchase
Common Stock (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective
meanings set forth in the Warrant.
1.
Exercise Price. The Holder intends that payment of the Exercise Price shall be made as (check one):
| ¨ | Cash Exercise under Section 1(a). |
| ¨ | Cashless Exercise under Section 1(c). |
2.
Cash Exercise. If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ to the Company in
accordance with the terms of the Warrant.
3.
Delivery of Warrant Shares. The Company shall deliver to the holder Warrant Shares in accordance with the terms
of the Warrant.
/___/ If Holder wishes
DWAC delivery of Warrant Shares, please provide DWAC instructions:
DTC #___________________
Account #_________________
4.
Representations and Warranties. By its delivery of this Exercise Notice, the undersigned represents and warrants
to the Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in excess of the number
of shares of Common Stock (determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted
to be owned under Section 1(d) of this Warrant to which this notice relates.
DATED: ___________________
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(Signature must conform in all respects to name of the Holder as specified on the face of the Warrant) |
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Registered Holder |
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Exhibit 4.3
SINO-GLOBAL SHIPPING AMERICA,
LTD.
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: 2015-[ ]
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Number of Warrants: [ ] |
Date
of Issuance: _________, 2015 (“Issuance Date”)
Expiration Date: __________, 2020 (“Expiration
Date”)
Sino-Global
Shipping America, Ltd., a Virginia corporation (the “Company”), certifies that, for good and valuable consideration,
the receipt and sufficiency of which are acknowledged, [ ], the registered holder hereof or its permitted assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price then in effect, upon surrender
of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “Warrant”), at any time or times on or after the date hereof (the “Exercisability Date”),
but not after 5:30 p.m., New York Time, on the Expiration Date (the “Warrant Period”), ________ (______) fully
paid and nonassessable shares (the “Warrant Shares”) of Common Stock (as defined below). Except as otherwise
defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 16.
1.
EXERCISE OF WARRANT.
(a)
Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations
set forth in Section 1(d)), this Warrant may be exercised by the Holder on any day on or after the Exercisability Date through
but not after 5:30 PM, New York Time on the Expiration Date, in whole or in part (but not as to fractional shares), by (i) delivery
of a properly completed and duly executed written notice to Computershare Inc., a Delaware corporation and its wholly-owned subsidiary
Computershare Trust Company, N.A., a federally chartered trust company (collectively, the “Warrant Agent”),
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise
this Warrant, and (ii) if both (A) the Holder is not electing (or is not eligible for) a Cashless Exercise pursuant to Section
1(c) of this Warrant and (B) a registration statement registering the issuance and resale of the Warrant Shares under the Securities
Act of 1933, as amended (the “Securities Act”), is effective and available for the issuance and resale of the
Warrant Shares, or an exemption from registration under the Securities Act is available for the issuance and resale of the Warrant
Shares, payment to the Warrant Agent of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares
as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash or wire transfer of immediately
available funds (a “Cash Exercise”). The Holder shall not be required to surrender this Warrant in order to
effect an exercise hereunder, provided that in the event of an exercise of this Warrant for all Warrant Shares then issuable hereunder,
this Warrant must be surrendered to the Warrant Agent by the second (2nd) Trading Day following the date on which the
Warrant Agent has received each of the following (the “Exercise Delivery Items”) (i) the Exercise Notice, (ii)
if this Warrant is being exercised pursuant to a Cash Exercise, the Aggregate Exercise Price, and (iii) in the case the Holder
elects to have the Warrant Shares issued in uncertificated form in street name (CEDE & Co.), written notice of such election
(an “Uncertificated Request”) on the Exercise Notice. On or before the third (3rd) Trading Day following
the date on which the Warrant Agent has received each of the following Exercise Delivery Items, as applicable (i) the Exercise
Notice duly completed and executed by the Holder, (ii) in the case of a Cash Exercise, the Aggregate Exercise Price, and (iii)
in the case the Holder desires to have the Warrant Shares issued on an uncertificated basis in street name (CEDE & Co.), an
Uncertificated Request (the “Share Delivery Date”), the Warrant Agent shall credit such aggregate number of
shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s designated brokerage firm’s
(or such brokerage firm’s clearing firm if such brokerage firm is not a clearing broker or does not have an account at DTC),
balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system
provided the Holder causes its prime broker or their clearing agent to initiate a DWAC DEPOSIT for the number of Common Shares,
or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program (the “FAST Program”)
or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight
courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in
the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Delivery Items and surrender of this Warrant, the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date such Warrant Shares are credited to the Holder’s designated brokerage firm’s (or such brokerage firm’s
clearing firm if such brokerage firm is not a clearing broker or does not have an account at DTC) balance account or the date of
delivery of the certificates evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with
any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise
is greater than the number of Warrant Shares being acquired upon an exercise, then the Warrant Agent shall as soon as practicable
and in no event later than three (3) Trading Days after any proper exercise of this Warrant in accordance with this Section
1(a) and at the Company’s own expense, issue a new Warrant (in accordance with Section 7(e)) representing the
right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number
of Warrant Shares with respect to which this Warrant is exercised. The Company shall pay any and all taxes that may be payable
with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant; provided, however, that
the Company shall not be required to pay any tax which may be payable based on the income of the Holder or 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 or an affiliate
thereof. 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.
In
addition to any other rights available to the Holder, if the Company fails to cause the Warrant Agent to transmit to the Holder
a certificate or the certificates representing the Warrant Shares or to credit the Holder’s brokerage firm’s (or such
brokerage firm’s clearing firm if such Holder’s brokerage firm is not a clearing broker or does not have an account
at DTC) balance account with DTC for such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise
pursuant to an exercise on or before the Share Delivery Date, and if after such date the Holder purchases (in an open market transaction
or otherwise) or the Holder’s brokerage firm otherwise purchases, 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 within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either
(i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation
to deliver such certificate (and to issue such Warrant Shares or credit such Holder’s brokerage firm’s (or such brokerage
firm’s clearing firm if such Holder’s brokerage firm is not a clearing broker or does not have an account at DTC) balance
account with DTC) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates
representing such Warrant Shares or credit such Holder’s designated brokerage firm’s (or such brokerage firm’s
designees) balance account with DTC and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) the Weighted Average Price of a share of Common Stock on the
date of exercise.
(b)
Exercise Price. For purposes of this Warrant, “Exercise Price” means $____ per share of Common
Stock, subject to adjustment as provided herein.
(c)
Cashless Exercise. Notwithstanding anything contained herein to the contrary, if a registration statement registering
the issuance and resale of the Warrant Shares under the Securities Act is not effective or available for the issuance and resale
of the Warrant Shares or an exemption from registration under the Securities Act is not available for the issuance of the Warrant
Shares, the Holder may, but only under such circumstances, in its sole discretion, exercise this Warrant in whole or in part and,
in lieu of making the cash payment otherwise contemplated to be made to the Warrant Agent upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x
C)
B
For purposes of the foregoing
formula:
A=
the total number of shares with respect to which this Warrant is then being exercised.
B=
the Weighted Average Price of the shares of Common Stock (as reported by Bloomberg) on the date immediately preceding the date
of the Exercise Notice.
C=
the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
(d)
Limitations on Exercises. (1) The Company shall not effect the exercise of this Warrant, and the Holder shall not
have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such Holder (together with such
Holder’s affiliates and any other Persons acting as a group together) would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes
of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Person and its affiliates
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) exercise of the remaining,
unexercised portion of this Warrant beneficially owned by such Person and its affiliates and (ii) exercise or conversion of the
unexercised or unconverted portion of any other securities of the Company beneficially owned by such Person and its affiliates
(including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion
or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), it being acknowledged that the Company is not representing to the Holder that such calculation
is in compliance with Section 13(d) of the Exchange Act, and the Holder is solely responsible for any schedules required to be
filed in accordance therewith. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock as reflected in the most recent of the following: (1) the Company’s
most recently filed: Form 10-K, Proxy Statement, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities
and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the
Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon
the written or oral request of the Holder, where such request indicates that it is being made pursuant to this Warrant, the Company
shall within one (1) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of securities of the Company, including the Warrants, by the Holder and its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may increase or decrease the Maximum
Percentage to any other percentage not in excess of 9.99% specified in such notice; provided, that (i) any such increase
will not be effective until the 61st day after such notice is delivered to the Company and (ii) any such increase or decrease will
apply only to the Holder and not to any other holder of Warrants.
(e)
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise,
the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price.
| 2. | ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise
Price and the number of Warrant Shares shall be adjusted from time to time as follows (which adjustment shall be calculated by
the Company): |
(a)
Adjustment upon Subdivision or Combination of Shares of Common Stock. If the Company at any time on or after the
Issuance Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time on or
after the Issuance Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under this Section 2(a) shall become
effective at the close of business on the date the subdivision or combination becomes effective.
(b)
Other Events. If any event occurs of the type contemplated by the provisions of Section 2(a) but not expressly provided
for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other
equity rights, pro rata to all or the record holders of any class of the Company’s Common Stock), then the Company’s
Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares so as to protect
the rights of the Holder; provided, that no such adjustment pursuant to this Section 2(b) will increase the Exercise Price
or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2.
3.
RIGHTS UPON DISTRIBUTION OF ASSETS. If the Company shall declare or make any dividend or other distribution of its
assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time
after the issuance of this Warrant, then, in each such case:
(a)
any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of
holders of shares of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business
on such record date, to a price determined by multiplying such Exercise Price by a fraction of which (i) the numerator shall be
the Weighted Average Price of the shares of Common Stock on the Trading Day immediately preceding such record date minus the value
of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock,
and (ii) the denominator shall be the Weighted Average Price of the shares of Common Stock on the Trading Day immediately preceding
such record date; and
(b)
the number of Warrant Shares shall be increased to a number of shares equal to the number of shares of Common Stock obtainable
immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock
entitled to receive the Distribution multiplied by the reciprocal of the fraction set forth in the immediately preceding paragraph
(a); provided, that in the event that the Distribution is of shares of Common Stock or common stock of a company whose common
shares are traded on a national securities exchange or a national automated quotation system (“Other Shares of Common
Stock”), then the Holder may elect to receive a warrant to purchase Other Shares of Common Stock in lieu of an increase
in the number of Warrant Shares, the terms of which shall be identical to those of this Warrant, except that such warrant shall
be exercisable for the number of shares of Other Shares of Common Stock that would have been payable to the Holder pursuant to
the Distribution had the Holder exercised this Warrant immediately prior to such record date and with an aggregate exercise price
equal to the product of the amount by which the exercise price of this Warrant was decreased with respect to the Distribution pursuant
to the terms of the immediately preceding paragraph (a) and the number of Warrant Shares calculated in accordance with the first
part of this paragraph (b).
| 4. | PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS. |
(a)
Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time prior to the Expiration
Date the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property pro rata to all of the record holders of any class of shares of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which
the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of
this Warrant (without regard to any limitations on the exercise of this Warrant) immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.
(b) Fundamental
Transactions. Upon the occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to
the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the
Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor
Entity had been named as the Company herein. Upon consummation of the Fundamental Transaction, the Successor Entity shall
deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the
consummation of the Fundamental Transaction, in lieu of the shares of the Common Stock (or other securities, cash, assets or
other property purchasable upon the exercise of the Warrant prior to such Fundamental Transaction), such shares of stock,
securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights), if
any, that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Warrant
been exercised immediately prior to such Fundamental Transaction, as adjusted in accordance with the provisions of this
Warrant. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with
respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make
appropriate provision to ensure that the Holder will thereafter have the right to receive upon exercise of this Warrant
within 90 days after the consummation of the Fundamental Transaction but, in any event, prior to the Expiration Date, in lieu
of the shares of the Common Stock (or other securities, cash, assets or other property) purchasable upon the exercise of the
Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property
whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive
upon the happening of such Fundamental Transaction had the Warrant been exercised immediately prior to such
Fundamental Transaction.
5. RESERVATION
OF WARRANT SHARES; PIGGYBACK REGISTRATION RIGHTS. (a) 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 shares of Common Stock which are then issuable
and deliverable upon the exercise of this entire Warrant, free from preemptive or any other contingent purchase rights of Persons
other than the Holder (taking into account the adjustments and restrictions in Section 2). Such reservation shall comply with the
provisions of Section 1. The Company covenants that all shares of Common Stock 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. The Company will take all such actions as may be reasonably necessary to assure that such shares
of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of any securities exchange or automated quotation system upon which the Common Stock may be listed.
| (b) | If, at any time after the Initial Exercise Date until this Warrant is no
longer outstanding, the Company shall determine to prepare and file with the Commission a registration statement relating to an
offering for its account or the account of others under the Securities Act of any of its equity securities, other than on Form
S-4 or Form S-8 (each as promulgated under the Securities Act), or their then equivalents relating to equity securities to be issued
solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the stock
option or other employee benefit plans, the Company shall send to the Holder a written notice of determination and if, within 15
calendar days after the date of such notice, the Holder shall so request in writing, the Company shall include in such registration
statement all or any part of the Warrant Shares that the Holder requests to be registered; provided, however, that the Company
shall not be required to register any Warrant Shares pursuant to this Section 5(b) that are eligible for resale pursuant to Rule
144 under the Securities Act. The Holder shall provide the Company with such information as shall be required to effect such registration
as a selling shareholder. He Holder shall, at the Company’s request, waive its piggyback rights so long as the Holder’s
right to cashless exercise remains unencumbered. |
| 6. | WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically
provided herein, the Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote
or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the
rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization,
issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is
then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed
as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder
of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. |
| 7. | REGISTRATION AND REISSUANCE OF WARRANTS. |
a.
Registration of Warrant. The Company, its Transfer Agent, and/or Warrant Agent shall register this Warrant, upon
the records to be maintained by the Company, its Transfer Agent, and/or Warrant Agent 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. The Company, its Transfer Agent, and/or Warrant Agent shall also register any transfer, exchange,
reissuance or cancellation of any portion of this Warrant in the Warrant Register.
b.
Transfer of Warrant. Pursuant to FINRA Rule 5110(g), neither this Warrant nor any Warrant Shares issued upon exercise
of this Warrant shall be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative,
put or call transaction that would result in the effective economic disposition of the securities by any person for a period of
180 days immediately following the date of effectiveness or commencement of sales of the offering pursuant to which this Warrant
is being issued, except the transfer of any security pursuant to FINRA Rule 5110(g)(2). This Warrant may be offered for sale, sold,
transferred or assigned without the consent of the Company, except as may otherwise be required by applicable securities laws.
Subject to applicable securities laws, if this Warrant is to be transferred, the Holder shall surrender this Warrant to the Warrant
Agent, as directed by the Company, together with all applicable transfer taxes, whereupon the Company will, or will cause its Warrant
Agent to, forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(e)), registered
as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and,
if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance
with Section 7(e)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred. 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
in respect of the new Warrant that the Holder has in respect of this Warrant.
c.
Lost, Stolen or Mutilated Warrant. If any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed,
the Company shall issue, and the Warrant Agent shall countersign and deliver, in exchange and substitution for, and upon cancellation
of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of Warrants (in accordance with Section 7(e)), but only
upon receipt of evidence reasonably satisfactory to the Warrant Agent of the loss, theft or destruction of such Warrant Certificate
and an affidavit and the posting of an open penalty surety bond satisfactory to the Warrant Agent and holding the Warrant Agent
and Company harmless, absent notice to Warrant Agent that such certificates have been acquired by a bona fide purchaser. Warrant
Agent may, at its option, issue replacement Warrants for mutilated certificates upon presentation thereof without such indemnity.
Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Warrant Agent may prescribe and as required by Section 8-405 of the Uniform Commercial Code as in effect
in the State of New York.
(d)
Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the office
of the Warrant Agent designated for such purpose, as directed by the Company, together with all applicable transfer taxes, for
a new Warrant or Warrants (in accordance with Section 7(e)) representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the Holder at the time of such surrender; provided, however, that the Company, its Transfer
Agent, and/or Warrant Agent, as directed by the Company, shall not be required to issue Warrants for fractional shares of Common
Stock hereunder. Such exchange is subject to applicable law and the reasonable requirements of the Warrant Agent which requirements
shall include reasonable evidence of authority, including a signature guarantee from an eligible guarantor institution participating
in a signature guarantee program approved by the Securities Transfer Association, and any other reasonable evidence of authority
that may be required by the Warrant Agent.
(e)
Issuance of New Warrants. Whenever the Warrant Agent, as directed by the Company, is required to issue a new Warrant pursuant
to the terms of this Warrant, such new Warrant shall (i) be of like tenor with this Warrant, (ii) represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant
being issued pursuant to Section 7(b) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number
of shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number
of Warrant Shares then underlying this Warrant), (iii) have an issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date and (iv) have the same rights and conditions as this Warrant.
8.
NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice
shall be given in accordance with the information set forth in the Warrant Register. The Company shall give written notice to the
Holder (i) reasonably promptly following any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying,
the calculation of such adjustment and (ii) at least ten (10) days prior to the date on which the Company closes its books or takes
a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances
or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to
the record holders of any class of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental
Transaction, dissolution or liquidation; provided, that in each case, such information shall be made known to the public
prior to or in conjunction with such notice being provided to the Holder.
9.
NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate
of Incorporation, Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be
required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase
the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect,
(ii) shall use all reasonable efforts to take all such actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant and (iii) shall,
so long as any of the Warrants are outstanding, take all action necessary to reserve and keep available out of its authorized and
unissued shares of Common Stock, solely for the purpose of effecting the exercise of the Warrants, the number of shares of Common
Stock as shall from time to time be necessary to effect the exercise of the Warrants then outstanding (without regard to any limitations
on exercise).
10.
AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company
has obtained the written consent of the Holder.
11.
LIMITATION OF LIABILITY. No provision hereof, in the absence of any affirmative action by Holder to exercise this
Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability
of Holder for the purchase price of any Warrant Shares or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
12.
GOVERNING LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of
the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of
New York.
13.
CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall
not be construed against any person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall
not form part of, or affect the interpretation of, this Warrant.
14.
DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall submit the disputed determinations or arithmetic calculations via email or facsimile within
two (2) Trading Days of receipt of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder
and the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares within five
(5) Trading Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall,
within two (2) Trading Days submit via email or facsimile (a) the disputed determination of the Exercise Price to an independent,
reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company’s independent, outside accountant. The Company shall cause the investment bank or the accountant,
as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later
than ten (10) Trading Days from the time it receives the disputed determinations or calculations. Such investment bank’s
or accountant’s determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable error.
The expenses of the investment bank and accountant will be borne by the Company unless the investment bank or accountant determines
that the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares by the Holder was incorrect, in
which case the expenses of the investment bank and accountant will be borne by the Holder.
15.
REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative
and in addition to all other remedies available under this Warrant, at law or in equity (including a decree of specific performance
and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure
by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder
may cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore
agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to
all other available remedies, to seek an injunction restraining any breach. Notwithstanding the foregoing or anything else herein
to the contrary, if the Company is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required
pursuant to the terms hereof, the Company shall have no obligation to pay to the Holder any cash or other consideration or otherwise
“net cash settle” this Warrant.
16.
CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
a.
“Bloomberg” means Bloomberg Financial Markets.
b.
“Common Stock” means (i) the Company’s shares of Common Stock, no par value, and (ii) any share
capital into which such Common Stock shall have been changed or any share capital resulting from a reclassification of such Common
Stock.
c.
“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible
into or exercisable or exchangeable for shares of Common Stock.
d.
“Eligible Market” means the Principal Market, The New York Stock Exchange, Inc., the NYSE Amex LLC, The
NASDAQ Stock Market, or the OTCQB or OTCQX.
e.
“Fundamental Transaction” means that (i) the Company or any of its direct and/or indirect subsidiaries
that generate material revenues or hold material assets necessary for the Company to operate its business, shall directly or indirectly
(1) consolidate or merge with or into any other entity other than a direct and/or indirect subsidiary of the Company, or (2) sell,
lease, license, other than for purposes of granting a security interest assign, transfer, convey or otherwise dispose of all or
substantially all of the Company’s and its subsidiaries collective properties or assets to any other person or entity, other
than a direct and/or indirect subsidiary of the Company, (3) a non-affiliated third party purchases and/or acquires through
a tender or exchange offer 50% or more of the outstanding shares of the Company’s voting stock and/or (4) consummates
a stock acquisition or other business combination with any other entity whereby such entity acquires more than 50% of the outstanding
shares of the Company’s voting stock and a majority of the Company’s Board of Directors at the time of such transaction
are no longer directors of the Company or its Successor Entity following such acquisition and/or business combination; provided,
however, that notwithstanding anything to the contrary provided herein or elsewhere this clause (i) shall not apply to (1)
any reorganization, recapitalization or reclassification of the Common Stock in which holders of the Company’s voting power
immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization
or reclassification to hold publicly traded securities on an Eligible Market and, directly or indirectly, the voting power of the
surviving entity or entities necessary to elect a majority of the members of the board of directors (or their equivalent if other
than a corporation) of such entity or entities, or (2) a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company, or (ii) any “person” or “group” (as these terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting
power represented by the Company’s issued and outstanding voting stock and a majority of the Company’s Board of Directors
at the time of such acquisition are no longer directors of the Company following such acquisition; provided , however , that this
clause (ii) shall not apply with respect to any person or group (and/or any affiliate of any such persons) who (1) is the
beneficial owner, directly or indirectly, of at least 50% of the aggregate voting power represented by the Company’s issued
and outstanding voting stock as of the Initial Issuance Date, or (2) who receives securities from the Company in connection with
or to finance acquisitions by us of any business and/or assets of a third party, or (3) purchased the Company’s securities,
provided that the Company remains publicly traded on an Eligible Market.
f.
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or
Convertible Securities.
g.
“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person
and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such
Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation
of the Fundamental Transaction.
h.
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.
i.
“Principal Market” means The NASDAQ Capital Market.
j.
“Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting
from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such
Fundamental Transaction shall have been entered into.
k.“Trading
Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock is then traded; provided that “Trading Day” shall not include any day on which the Common Stock is scheduled
to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the
final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time
of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).
l.
“Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price
for such security on the Principal Market during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00
p.m., New York City time, as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00 p.m., New York City
time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security
as reported in the “pink sheets” by Pink OTC Markets Inc. If the Weighted Average Price cannot be calculated for such
security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair
market value of such security, then such dispute shall be resolved pursuant to Section 14 with the term “Weighted Average
Price” being substituted for the term “Exercise Price.” All such determinations shall be appropriately adjusted
for any share dividend, share split or other similar transaction during such period.
[Signature Page Follows]
IN WITNESS WHEREOF, the
Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.
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SINO-GLOBAL SHIPPING AMERICA, LTD. |
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SEAL: |
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Chairman |
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Attest: |
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Secretary |
EXHIBIT
A
EXERCISE
NOTICE
TO BE EXECUTED BY THE
REGISTERED HOLDER TO EXERCISE
THIS WARRANT TO PURCHASE COMMON STOCK
SINO-GLOBAL SHIPPING AMERICA,
LTD.
The undersigned
holder hereby exercises the right to purchase of the shares of Common Stock (“Warrant Shares”) of Sino-Global
Shipping America, Ltd., a Virginia corporation (the “Company”), evidenced by the attached Warrant to Purchase
Common Stock (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective
meanings set forth in the Warrant.
1.
Exercise Price. The Holder intends that payment of the Exercise Price shall be made as (check one):
| ¨ | Cash Exercise under Section 1(a). |
| ¨ | Cashless Exercise under Section 1(c). |
2.
Cash Exercise. If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ to the Company in
accordance with the terms of the Warrant.
3.
Delivery of Warrant Shares. The Company shall deliver to the holder Warrant Shares in accordance with the terms
of the Warrant.
/___/ If Holder wishes
DWAC delivery of Warrant Shares, please provide DWAC instructions:
DTC #___________________
Account #_________________
4.
Representations and Warranties. By its delivery of this Exercise Notice, the undersigned represents and warrants
to the Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in excess of the number
of shares of Common Stock (determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted
to be owned under Section 1(d) of this Warrant to which this notice relates.
DATED: _______________________
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(Signature must conform in all respects to name of the Holder as specified on the face of the Warrant) |
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Registered Holder |
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Exhibit 4.4
WARRANT AGENT AGREEMENT
This WARRANT AGENT
AGREEMENT (this “Agreement”) between Sino-Global Shipping America, Ltd., a Virginia corporation (the “Company”),
Computershare Inc., a Delaware corporation and its wholly-owned subsidiary Computershare Trust Company, N.A., a federally chartered
trust company (collectively, the “Warrant Agent”), is dated as of March __, 2015.
RECITALS
WHEREAS, on
_________, 2015, the Company issued warrants (“Warrants”) to purchase _____________ common shares, no par value (“Common
Shares”) to the Warrant Holders (as defined hereafter), pursuant to the terms and conditions of that final prospectus dated
March __, 2015 (collectively, the “Warrant Holders”);
WHEREAS, on
October 3, 2014, the Company filed a Registration Statement on Form S-1, which was subsequently amended on November 17, 2014, December
3, 2014, January 23, 2015, February 2, 2015 and February __, 2015 (collectively, the “Registration Statement”), with
the U.S. Securities and Exchange Commission (the “Commission”) to register the Warrants and the Common Shares issuable
upon exercise of the Warrants, which was declared effective by the Commission on ________, 2015;
WHEREAS, the
Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the re-issuance, transfer, exchange and exercise of the Warrants;
NOW, THEREFORE,
in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Appointment of
Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the terms
and conditions of this Agreement, and the Warrant Agent hereby accepts such appointment.
Section 2. Form of Warrant
Certificates. The Warrants shall be evidenced by certificates (the “Warrant Certificates”) (together with the
form notice of exercise), which shall be substantially in the form of Exhibit A1
hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement or as may be required to comply
with any law or with any rule or regulation made pursuant thereto, or to conform to usage.
___________________________
1 NTD: Reference to be revised,
Exhibit A is currently the Schedule of Fees.
Section 3. Countersignature
and Registration.
| (a) | The Warrant Certificates shall be executed on behalf of the Company by its Chairman or its President,
either manually or by facsimile signature, and have affixed thereto the Company’s seal or a facsimile thereof which shall
be attested by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The Warrant Certificates
shall be countersigned by the Warrant Agent either manually or by facsimile signature and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have signed any of the Warrant Certificates shall cease to be such
officer of the Company before countersignature by the Warrant Agent and issuance and delivery by the Company, such Warrant Certificates,
nevertheless, may be countersigned by the Warrant Agent, issued and delivered with the same force and effect as though the person
who signed such Warrant Certificate had not ceased to be such officer of the Company; and any Warrant Certificate may be signed
on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such
person was not such an officer. The Warrant Agent will keep or cause to be kept, at one of its offices or at the office of one
of its agents, books for registration and transfer of the Warrant Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Warrant Certificates, the number of Warrants evidenced on the face of each of such
Warrant Certificate and the date of each of such Warrant Certificate. |
| (b) | The Company shall provide an opinion of counsel prior to the Effective Time to set up reserve of
warrants and related Common Shares. The opinion shall state that all warrants or Common Shares, as applicable, are: |
(1) registered under the Securities
Act of 1933, as amended, or are exempt from such registration, and all appropriate state securities law filings have been made
with respect to the warrants or shares; and
(2) validly issued, fully paid
and non-assessable.
Section 4. Transfer,
Split Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
| (a) | Subject to the provisions of Section 9(a) hereof and the last sentence of this first paragraph
of Section 4(a) and subject to applicable law, rules or regulations, restrictions on transferability that may appear on the
Warrant Certificates or any “stop transfer” instructions the Company may give to the Warrant Agent, at any time after
the date hereof, at or prior to the Expiration Date (as such term is defined in Section 5(a) of this Agreement), any Warrant Certificate(s)
may be transferred, split up, combined or exchanged for another Warrant Certificate(s), entitling the holder to purchase a like
number of Common Shares as the Warrant Certificate(s) surrendered then entitled such holder to purchase, all as set forth in Section
7 of the Warrant Certificate. Any holder desiring to transfer, split up, combine or exchange any Warrant Certificate shall make
such request in writing delivered to the Warrant Agent, and shall surrender the Warrant Certificate(s) to be transferred, split
up, combined or exchanged at the principal office of the Warrant Agent, subject to applicable law and the reasonable requirements
of the Warrant Agent which requirements shall include reasonable evidence of authority to transfer. Such evidence of authority
shall include a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved
by the Securities Transfer Association, and any other reasonable evidence of authority that may be required by the Warrant Agent.
Thereupon the Warrant Agent shall countersign and deliver to the person entitled thereto a Warrant Certificate or Warrant Certificates,
as the case may be, as so requested. |
| (b) | If any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company shall
issue, and the Warrant Agent shall countersign and deliver, in exchange and substitution for, and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate
of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence reasonably satisfactory to the
Warrant Agent of the loss, theft or destruction of such Warrant Certificate and an affidavit and the posting of an open penalty
surety bond satisfactory to the Warrant Agent and holding the Warrant Agent and Company harmless, absent notice to Warrant Agent
that such certificates have been acquired by a bona fide purchaser. Warrant Agent may, at its option, issue replacement Warrants
for mutilated certificates upon presentation thereof without such indemnity. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other reasonable charges as the Warrant Agent may prescribe
and as required by Section 8-405 of the Uniform Commercial Code as in effect in the State of New York. |
Section 5. Exercise of
Warrants; Exercise Price; Expiration Date.
| (a) | The Warrants shall cease to be exercisable and shall terminate and become void at or prior to 5:30
PM, New York Time, on ________________ (the “Expiration Date”). Subject to the foregoing and to Section 5(b) hereof,
the holder of any Warrant Certificate may exercise the Warrants evidenced thereby in whole or in part and from time to time upon
surrender of the Warrant Certificate (if all of the Warrant Shares available under the Warrant Cerare being purchased), with the
notice of exercise properly completed and duly executed, to the Warrant Agent at its principal office or to the office of one of
its agents as may be designated by the Warrant Agent from time to time, accompanied by proper payment to the Company, in a manner
specified on the Warrant Certificate, in an amount equal to the then applicable Exercise Price per share multiplied by the number
of Common Shares then being purchased as well as all applicable taxes or charges due in connection with the exercise of such Warrants.
The Warrant Agent shall forward funds received for warrant exercises in a given month by the 5th Business Day of the following
month by wire transfer to an account designated by the Company. For purposes of the Agreement, “Business Day” shall
mean any day other than a Saturday, Sunday or a day on which banking institutions in the City of New York are authorized or obligated
by law or executive order to close. |
| (b) | Upon receipt of a notice of exercise properly completed and duly executed prior to the Expiration
Date, accompanied by payment of the Exercise Price for the Common Shares to be purchased and all applicable taxes or charges due
in connection with such exercise, the Warrant Agent shall thereupon: (i) promptly requisition from the transfer agent of the
Common Share certificates the number of Common Shares to be purchased, and the Company hereby irrevocably authorizes its transfer
agent to comply with all such requests; (ii) promptly after receipt of such Common Share certificates, cause the same to
be delivered to or upon the order of the holder of such Warrant Certificate, registered in such name or names as may be designated
by such holder; or (iii) if requested by the Holder, deliver the Warrant Shares via DWAC deposit to the account designated by such
Holder as set forth in Section 1(a) of the Warrant Certificate. The Warrant Agent shall use best efforts to deliver Warrant Shares
within three (3) Business Days of receipt of both a notice of exercise duly executed and receipt of payment of the Exercise Price. |
| (c) | Upon receipt by the Warrant Agent of a notice of exercise duly executed at its principal office,
and proper payment of the applicable Exercise Price and any taxes or charges as required hereby, the holder of such Warrant Certificate
shall be deemed to be the holder of record of the Common Shares issuable upon such exercise, notwithstanding that the stock transfer
books of the Company shall then be closed or that certificates representing such common shares shall not then be actually delivered
to the holder of such Warrant Certificate. |
| (d) | The Company acknowledges that all funds received by Computershare under this Agreement that are to
be distributed or applied by Computershare in the performance of services (the “Funds”) shall be held by Computershare
as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for
the Company. Until paid pursuant to the terms of this Agreement, Computershare will hold the Funds through such accounts in: deposit
accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P
(LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported
by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result
from any deposit made by Computershare in accordance with this paragraph, including any losses resulting from a default by any
bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings
in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company,
any holder or any other party. |
| (e) | In the event of a Cashless Exercise (as defined in the Warrant Certificate) pursuant to Section 1(c)
of the Warrant Certificate, upon receipt of a notice of exercise properly completed and duly executed indicating a Cashless Exercise,
the Warrant Agent will promptly deliver a copy of such notice of exercise to the Company to confirm the number of Warrant Shares
issuable in connection with the Cashless Exercise. The Company shall calculate and transmit to the Warrant Agent in a written notice,
and the Warrant Agent shall have no duty, responsibility or obligation to calculate, the number of Warrant Shares issuable in connection
with any Cashless Exercise. The Warrant Agent shall be entitled to rely conclusively on any such written notice provided by the
Company, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with
such written instructions or pursuant to this Agreement. In the event of a Cashless Exercise, the Company shall provide the Warrant
Agent with the cost basis for all securities issued pursuant to such Cashless Exercise prior to the issuance of such securities.
In the event of an exercise other than a Cash Exercise, the Company hereby instructs the Warrant Agent to record cost basis for
newly issued securities as [the Exercise Price thereof]2. |
_______________________
2
Issuer to confirm/update.
Section 6. Cancellation and Destruction
of Warrant Certificates. All Warrant Certificates surrendered for the purpose of exercise, transfer, split up, combination
or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for cancellation or
in canceled form, or, if surrendered to the Warrant Agent, shall be canceled by it, and no Warrant Certificates shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the Warrant
Agent for cancellation and retirement, and the Warrant Agent shall so cancel and retire, any other Warrant Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Warrant Agent shall deliver all canceled Warrant Certificates
to the Company, or shall, at the written request of the Company, destroy such canceled Warrant Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company, subject to any applicable law, rule or regulation requiring
the Warrant Agent to retain such canceled certificates.
Section 7. Adjustment of Exercise
Price and Number of Common Shares. The number and kind of securities purchasable upon the exercise of the Warrants and
the Exercise Price shall be subject to adjustment from time to time upon the occurrence of certain events, as set forth in Sections
2, 3 and 4 of the Warrant Certificate; provided, however, that the Warrant Agent shall have no obligation under any Section of
this Agreement to determine whether an adjustment event has occurred or to calculate any of the adjustments set forth therein.
The form of Warrant Certificate need not be changed because of any adjustment hereunder, and Warrants issued after such
adjustment may state the same Exercise 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 Certificate
that the Company may deem appropriate and that does not affect the substance thereof (including any of the rights, duties, obligations
and liabilities of the Warrant Agent), 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.
Section 8. Certification of Adjusted
Exercise Price or Number of Common Shares. Whenever the Exercise Price or the number of Common Shares issuable upon the
exercise of each Warrant is adjusted as provided in Section 7, the Company shall: (i) within ten (10) days of such adjustment,
prepare and file with the Warrant Agent a certificate setting forth the Exercise Price of each warrant as so adjusted, and a brief
statement of the facts accounting for such adjustment; and (ii) instruct the Warrant Agent to mail a copy of such certificate
to each holder of a Warrant Certificate. The Warrant Agent shall mail a copy of such certificate to each holder of a Warrant Certificate
within twenty (20) days after receipt of such certificate from the Company. Until such certificate is
received by the Warrant Agent, the Warrant Agent may presume conclusively for all purposes that no such
adjustments have been made and the Warrant Agent shall have no duty or obligation to investigate or confirm whether any
of the Company’s determination are accurate or correct.
Section 9. Fractional Common
Shares. No fractional common shares shall be issued in connection with any warrant exercise, but in lieu of such fractional
common shares the Company shall make a cash payment equal to the Exercise Price for such fractional common share. The Warrant Agent
shall promptly provide the Company with written notice upon the exercise of any warrant or warrants by a registered holder which
would otherwise result in the issuance of fractional common shares. The Company shall provide an initial funding of [one thousand
dollars ($1000)] for the purpose of issuing cash in lieu of fractional shares. From time to time thereafter, Computershare may
request additional funding to cover such payments. Computershare shall have no obligation to make such payments unless the Company
shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto.
Section 10. Transfer and Exercise
of Warrant Certificates. The Company and the Warrant Agent consent and agree:
| (a) | that the Warrant Certificates shall be transferable only on the registry books of the Warrant Agent
if surrendered at the principal office of the Warrant Agent, duly endorsed or accompanied by a proper instrument of transfer; and |
| (b) | that the Company and the Warrant Agent may deem and treat the person in whose name the Warrant
Certificate is registered as the absolute owner thereof and of the warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificates made by anyone other than the Company or the Warrant Agent) for all purposes whatsoever,
and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. |
Section 11. Concerning the
Warrant Agent.
| (a) | The Company shall pay to the Warrant Agent compensation in accordance with the fee schedule attached
as Exhibit B hereto, together with reimbursement for reasonable fees and disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties hereunder. |
| (b) | The Company covenants and agrees to indemnify and to hold the Warrant Agent harmless against any
costs, expenses (including reasonable fees of its legal counsel), losses or damages, which may be paid, incurred or suffered by
or to which it may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from its actions
as Warrant Agent pursuant hereto; provided, that such covenant and agreement does not extend to, and the Warrant Agent shall not
be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by the Warrant Agent as a result
of, or arising out of, its gross negligence, bad faith, or willful misconduct. |
| (c) | From time to time, the Company may provide the Warrant Agent with instructions concerning the services
performed by the Warrant Agent hereunder. In addition, at any time the Warrant Agent may apply to any officer of the Company for
instruction, and may consult with legal counsel for the Warrant Agent or the Company with respect to any matter arising in connection
with the services to be performed by the Warrant Agent under this Agreement. The Warrant Agent and its agents and subcontractors
shall not be liable and shall be indemnified by Company for any action taken or omitted by Warrant Agent in reliance upon any Company
instructions or upon the advice or opinion of such counsel. The Warrant Agent shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the Company. |
| (d) | The Warrant Agent shall be responsible for and shall indemnify and hold the Company harmless from
and against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising from or out of,
directly or indirectly, or attributable to the Warrant Agent’s refusal or failure to comply with the terms of this Agreement,
or which arise out of Warrant Agent’s gross negligence, bad faith or willful misconduct or which arise out of the breach
of any representation or warranty of the Warrant Agent hereunder, for which the Warrant Agent is not entitled to indemnification
under this Agreement; provided, however, that Warrant Agent’s aggregate liability under this Agreement with respect to, arising
from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid under this Agreement by the
Company to Warrant Agent as fees and charges, but not including reimbursable expenses. |
| (e) | In order that the indemnification provisions contained in this Section 11 shall apply, upon the
assertion of a claim for which one party may be required to indemnify the other, the party seeking indemnification shall promptly
notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such
claim. The indemnifying party shall have the option to participate with the indemnified party in the defense of such claim or to
defend against said claim in its own name or the name of the indemnified party. The indemnified party shall in no case confess
any claim or make any compromise in any case in which the indemnifying party may be required to indemnify it except with the indemnifying
party’s prior written consent. |
| (f) | Neither party to this Agreement shall be liable to the other party
for any consequential, indirect, special or incidental damages under any provisions of this Agreement or for any consequential,
indirect, penal, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised
of or has foreseen the possibility of such damages. |
Section 12. Purchase or Consolidation
or Change of Name of Warrant Agent.
| (a) | 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 party, or any corporation succeeding
to the corporate trust business of the Warrant Agent shall be the successor to the Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor
Warrant Agent shall succeed to the agency created by this Agreement any of the Warrant Certificates shall have been countersigned
but not delivered, any such successor Warrant Agent may adopt the countersignature of the predecessor Warrant Agent and deliver
such Warrant Certificates so countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned,
any successor Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in
the name of the successor Warrant Agent; and in all such cases such Warrant Certificates shall have the full force provided in
the Warrant Certificates and in this Agreement. |
| (b) | In case at any time the name of the Warrant Agent shall be changed and at such time any of the
Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and in case at that time any of the Warrant Certificates shall not
have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this
Agreement. |
| (c) | To the extent doing so will not violate any legal or contractual obligation on the part of the
Warrant Agent to maintain the confidentiality of such information, the Warrant Agent shall notify the Company in writing in advance
of any proposed change in its ownership, control or management. |
Section 13. Duties of Warrant
Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions:
| (a) | The Warrant Agent may consult with legal counsel, and the opinion of such counsel shall be full
and complete authorization and protection to the Warrant Agent as to any action taken or omitted by it in good faith and in accordance
with such opinion. |
| (b) | Whenever in the performance of its duties under this 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 certificate signed by the Chief Executive Officer, Chief Financial Officer, Treasurer
or Secretary of the Company and delivered to the Warrant Agent; and such certificate shall be full authentication to the Warrant
Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate. |
| (c) | The Warrant Agent shall be liable hereunder for its own gross negligence, bad faith and willful
misconduct. |
| (d) | The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals
contained in this Agreement or in the Warrant Certificates (except its countersignature thereof) or be required to verify the same. |
| (e) | The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution
of any Warrant Certificate (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 Certificate; nor shall it be responsible for the adjustment
of the Exercise Price or the making of any change in the number of Common Shares required under the provisions of Sections 7 and8
or responsible for the manner, method or amount of any such change or the ascertaining of the existence of facts that would require
any such adjustment or change (except with respect to the exercise of Warrants evidenced by Warrant Certificates after actual notice
of any adjustment of the Exercise Price); nor shall it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any Common Shares to be issued pursuant to this Agreement or any Warrant Certificate or
as to whether any Common Shares will, when issued, be duly authorized, validly issued, fully paid and nonassessable. |
| (f) | The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further information and documentation as may reasonably be required by the Warrant
Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement. |
| (g) | The Warrant Agent is hereby authorized to accept instructions with respect to the performance of
its duties hereunder from the Chief Executive Officer, Chief Financial Officer, Treasurer or Secretary of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and it shall not be liable and shall be indemnified
and held harmless for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such
officer, provided Warrant Agent carries out such instructions without gross negligence, bad faith or willful misconduct. |
| (h) | The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it
were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity
for the Company or for any other legal entity. |
| (i) | The Warrant Agent may perform any of its duties hereunder either directly or by or through agents
or attorneys and Warrant Agent shall not be liable or responsible for any misconduct or negligence on the part of any agent or
attorney appointed with reasonable care hereunder. |
Section 14. Termination.
Either the Company or the Warrant Agent may terminate this Agreement upon thirty (30) days prior written notice to the other party.
In the event of such termination, the Company shall appoint a successor agent and inform the Warrant Agent of the name and address
of any successor agent so appointed, provided that no failure by the Company to appoint such a successor agent shall affect the
termination of this Agreement or the discharge of the Warrant Agent as agent hereunder. Upon any such termination, Warrant Agent
shall be relieved and discharged of any further responsibilities with respect to its duties hereunder. Upon payment of all outstanding
fees and expenses hereunder, Warrant Agent shall promptly forward to the Company or its designee any and all property or documentation
relative to the Warrant Certificates and the holders thereof and documents relating to the Warrant Certificates or the holders
thereof that the Warrant Agent may receive after its appointment has so terminated.
Section 15. Issuance of New Warrant
Certificates. The Company may, at its option and in accordance with the provisions of the Warrant Certificates, request
the Warrant Agent to issue new Warrant Certificates, in such form as is acceptable to the Company, in order to reflect any adjustment
or change in the Exercise Price or the number of Common Shares purchasable under the several Warrant Certificates.
Section 16. Notices.
All notices, demands and other communications given pursuant to the terms and provisions of this Agreement shall be in writing,
shall be deemed effective on the date of receipt, and may be sent by overnight delivery service, or by certified or registered
mail, return receipt requested to:
To the Company:
With a copy to:
To Warrant Agent: |
Computershare Trust Company, N.A. |
|
250 Royall Street |
|
Canton, Massachusetts 02021 |
|
Attention: Client Administration Corporate Actions |
Section 17. Governing Law.
This Agreement and the interpretation of its terms shall be governed by the laws of the State of New York, without application
of conflicts of law principles.
Section 18. Force Majeure.
Notwithstanding anything to the contrary contained herein, Warrant Agent shall not be liable for any delays or failures in performance
resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
Section 19. Amendment.
No provision of this Agreement may be amended, modified, or waived, except in a written document signed by all of the parties.
As a condition precedent to the Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent
a certificate from a duly authorized officer of the Company that states that the proposed amendment is in compliance with the terms
of this Agreement.
Section 20. Severability.
If any provision of this Agreement shall be held illegal, invalid or unenforceable by any court, this Agreement shall be construed
and enforced as if such provision had not been contained herein and shall be deemed binding and enforceable to the full extent
permitted by applicable law.
Section 21. Entire Agreement.
This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes all
prior written or oral communications, understandings, and agreements with respect to the subject matter of this Agreement.
Section 22. Assignment.
This Agreement may not be assigned, or otherwise transferred, in whole or in part, by the parties without the prior written consent
of all the other parties, which the other parties will not unreasonably withhold, condition or delay.
Section 23. Successors.
All 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 hereunder.
Section 24. Benefits of this
Agreement. Nothing in this Agreement shall be construed to give any person other than the Company and the Warrant Agent
any legal or equitable right, remedy or claim under this Agreement; and this Agreement shall be for the sole and exclusive benefit
of the Company and the Warrant Agent.
Section 25. 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. A signature to this Agreement
transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
Section 26. Captions.
The captions of the sections of this Agreement have been inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
Section 27. Confidentiality.
The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party,
including inter alia, personal, non-public warrant holder information, which are exchanged or received pursuant to the negotiation
or the carrying out of this Agreement including the fees for services set forth in the attached schedule shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant
to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 28. Further
Assurances. The Company shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all
such further and other acts, documents, instruments and assurances as may be reasonably required by the Warrant Agent for the carrying
out or performing by the Warrant Agent of the provisions of this Agreement.
Section 29. Force
Majeure. Notwithstanding anything to the contrary contained herein, the Warrant Agent will not be liable for any delays
or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist
acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due
to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
|
Company |
|
Sino-Global Shipping America, Ltd., a Virginia corporation |
|
|
|
By: ____________________________ |
|
Name: ____________________________ |
|
Title: ____________________________ |
|
|
|
Computershare Trust Company, N.A. |
|
|
|
By: ____________________________ |
|
Name: ____________________________ |
|
Title: ____________________________ |
|
|
|
Computershare Inc. |
|
|
|
By: ____________________________ |
|
Name: ____________________________ |
|
Title: ____________________________ |
|
|
Exhibit A
Form of
Warrant Certificate
Exhibit B
Schedule of Fees
Warrant Agent
Service Description | |
Fees | |
Warrant Conversion Agent | |
| | |
1st year Annual Administration (includes initial setup) | |
$ | 5,000.00 | |
Annual Administration each year thereafter | |
$ | 1,000.00 | |
| |
| | |
Processing Accounts, each | |
$ | 50.00 | |
| |
| | |
Conversions requiring additional handling (window items, deficient items, correspondence items, legal items, items not providing a taxpayer identification number, Transfer Requests, etc), additional each | |
$ | 15.00 | |
| |
| | |
Requisitioning Funds, each requisition | |
$ | 25.00 | |
| |
| | |
Expiration | |
$ | 1,000.00 | |
| |
| | |
Special Services | |
| Additional | |
| |
| | |
Out of Pocket Expenses Including Postage, Printing, Stationery, Overtime, Transportation,
Microfilming, Imprinting, Mailing, etc. | |
| Additional | |
Exhibit 5.1
|
Kaufman & Canoles, P.C.
Two James Center
1021 East Cary Street, Suite 1400
Richmond, VA 23219
Mailing Address
Post Office Box 27828
Richmond, VA 23261
T (804) 771.5700
F (804) 771.5777
kaufCAN.com |
March 3, 2015
Lei Cao, Chief Executive Officer
Sino-Global Shipping America, Ltd.
1044 Northern Boulevard
Roslyn, New York 11576-1514
Re: Sino-Global Shipping America, Ltd.
Dear Mr. Cao:
We have acted as special Virginia counsel for Sino-Global Shipping
America, Ltd., a Virginia corporation (the “Company”), in connection with the preparation and filing of the Company’s
registration statement on Form S-1, as may from time to time be amended (the “Registration Statement”), as originally
filed with the Securities and Exchange Commission (the “Commission”) on October 3, 2014. The Registration
Statement includes a prospectus (the “Prospectus”), which provides that the Prospectus will be supplemented in the
future by one or more prospectus supplements (each, a “Prospectus Supplement”). The Registration Statement, including
the Prospectus as supplemented from time to time by one or more Prospectus Supplements, will provide for the registration by the
Company of:
(i) |
shares (the “Offering Shares”) of common stock, without par value per share of the Company (the “Common Stock”); |
(ii) |
warrants to purchase shares of Common Stock (the “Investor Warrants”), to be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the Company and a bank or trust company as Warrant agent, and such warrants will be issued together with Common Stock. The Registration Statement also relates to the offering, on a delayed or continuous basis, of shares of Common Stock issuable upon the exercise of the Investor Warrants. |
(iii) |
warrants to purchase shares of Common Stock (the “Placement Agent Warrants”), issued to Aegis Capital Corp. as additional underwriting compensation. The Registration Statement also relates to the offering, on a delayed or continuous basis, of shares of Common Stock issuable upon the exercise of the Placement Agent Warrants (together with the shares of Common Stock underlying the Investor Warrants described above, the “Warrant Shares”). |
In connection with this opinion, we have examined the Registration
Statement and the prospectus contained therein, the Company’s Articles of Incorporation, as amended to date, the Company’s
Bylaws, as amended to date, and the originals, or copies certified to our satisfaction, of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below
(the “Documents”). We are relying (without any independent investigation thereof) upon the truth and accuracy of the
statements, covenants, representations and warranties set forth in the Documents. In addition, for all purposes of this opinion,
we have assumed that the placement agreement pursuant to which the Offering Shares will be sold (the “Placement Agreement”)
will be duly executed and delivered and will be a valid and binding agreement of the parties thereto in accordance with its terms.
The following opinion is given only as to matters of Virginia
law, and we express no opinion with respect to any matters governed by or construed in accordance with the laws of any jurisdiction
other than the Commonwealth of Virginia. We have assumed that there is nothing under any law (other than the laws of the Commonwealth
of Virginia) that would affect or vary the following opinion.
On the basis of the foregoing, and in reliance thereon, we are
of the opinion that:
| 1. | The Offering Shares have been duly authorized and upon the sale thereof in accordance with the terms of the Underwriting Agreement,
such securities will be duly and validly issued, fully paid and non-assessable shares of the Common Stock of the Company. |
| 2. | The Investor Warrants have been duly and validly authorized and, when resold as contemplated by the Registration Statement,
will be duly and validly issued. |
| 3. | The Placement Agent Warrants have been duly and validly authorized and, when resold as contemplated by the Registration Statement,
will be duly and validly issued. |
| 4. | The Warrant Shares issuable upon the exercise of the Investor Warrants and Placement Agent Warrants have been duly and validly
authorized and, when issued as contemplated by the Registration Statement and the terms and conditions of such warrants, will be
fully paid and non-assessable shares of the Common Stock of the Company. |
We consent to the use of our name in the Registration Statement
and the prospectus that forms a part thereof and the filing of this opinion as an exhibit to the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended or the Rules and Regulations of the Securities and Exchange Commission.
|
Sincerely, |
|
|
|
By: /s/ Kaufman & Canoles, P.C.
|
|
Kaufman & Canoles, P.C. |
Exhibit 5.2
DAVID A. GEHN
SCOTT H. GOLDSTEIN
MARTIN H. KAPLAN
MARLEN KRUZHKOV**
LAWRENCE
G. NUSBAUM
MARTIN P. RUSSO |
GUSRAE
KAPLAN NUSBAUM PLLC
ATTORNEYS
AT LAW
120
WALL STREET-25TH FLOOR
NEW
YORK, NEW YORK 10005
TEL
(212)269-1400
FAX
(212)809-5449
—–
|
OF
COUNSEL ROBERT L. BLESSEY |
** MEMBER NY AND NJ BAR |
81
MAIN STREET-SUITE 215
WHITE PLAINS,
NEW YORK 10601
(914)644-8323
—–
www.gusraekaplan.com
|
|
March 3, 2015
Lei Cao, Chief Executive Officer
Sino-Global Shipping America, Ltd.
1044 Northern Boulevard
Roslyn, New York 11576-1514
Re: Sino-Global Shipping America, Ltd.
Dear Mr. Cao:
We have acted
as special counsel for Sino-Global Shipping America, Ltd., a Virginia corporation (the “Company”), in
connection with the preparation and filing of the Company’s registration statement on Form S-1, as may from time to time
be amended (the “Registration Statement”), as originally filed with the Securities and Exchange Commission
(the “Commission”) on October 3, 2014. The Registration Statement will provide for the registration by
the Company of:
| a) | shares (the “Offering Shares”) of common stock, without par value per share of the Company (the “Common
Stock”); |
| b) | warrants to purchase shares of Common Stock (the “Investor Warrants”), to be issued under a warrant
agreement (the “Warrant Agreement”) to be entered into between the Company and a bank or trust company
as Warrant agent, and such warrants will be issued together with Common Stock. The Registration Statement also relates to the offering,
on a delayed or continuous basis, of shares of Common Stock issuable upon the exercise of the Investor Warrants (the “Investor
Warrant Shares”). |
| c) | warrants to purchase shares of Common Stock (the “Placement Agent Warrants”), issued to Aegis Capital
Corp. (the “Placement Agent”) as additional underwriting compensation. The Registration Statement also
relates to the offering, on a delayed or continuous basis, of shares of Common Stock issuable upon the exercise of the Placement
Agent Warrants (the “Placement Agent Warrant Shares,” and, together Investor Warrant Shares, the “Warrant
Shares”). |
We have examined such documents and
considered such legal matters as we have deemed necessary and relevant as the basis for the opinion set forth below (the “Documents”).
With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as reproduced or certified copies, and
the authenticity of the originals of those latter documents. As to questions of fact material to this opinion, we have, to the
extent deemed appropriate, relied upon certain representations of certain officers and employees of the Company.
Based on the foregoing, and subject
to the qualifications stated herein, we are of the opinion that the Investor Warrants and Placement Agent Warrants, when duly executed
and issued in accordance with and in the manner described in the Registration Statement constitutes legal, valid and binding obligation
of the Company under the laws of the State of New York, enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
The opinions expressed herein are limited
to the laws of the State of New York and we express no opinion as to the effect on the matters covered by this letter of the laws
of any other jurisdiction.
We hereby consent to the filing of
this letter as an exhibit to the Registration Statement and the reference to our firm under the caption “Legal Matters”
in the prospectus which is a part of the Registration Statement. In giving such consent we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Commission.
Very truly yours,
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Gusrae Kaplan Nusbaum PLLC |
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By: |
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/s/ Gusrae Kaplan Nusbaum PLLC |
Sino Global Shipping Ame... (NASDAQ:SINO)
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