ex104.htm


    Exhibit
10.4

     

    NEITHER
THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES OF COMMON STOCK TO
BE ISSUED ON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE WARRANT NOR THE SUCH SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT, OR (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND THE COMPANY SHALL HAVE RECEIVED AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY AS TO SUCH EXEMPTION.

    


    IN
ADDITION, A SECURITIES PURCHASE AGREEMENT DATED AS
OF     OCTOBER 29, 2009, AS AMENDED (THE “PURCHASE
AGREEMENT”), A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS BETWEEN THE PARTIES
WITH RESPECT TO THIS WARRANT.

    


    
      
        

      



    LONGWEI
PETROEUM INVESTMENT HOLDING LIMITED

    


    COMMON
STOCK PURCHASE WARRANT

    


    Number of
Shares:  ___________                                                                                                                                                                                
  Holder: ___________

                                                                                         


    Expiration
Date: October 29, 2012

    


    Exercise Price per Share:
$2.255

    


    LONGWEI PETROEUM INVESTMENT HOLDING
LIMITED, a Colorado corporation (the “Company”),
hereby certifies that, for value received, ____________, or registered assigns (the
“Warrant
Holder”), is entitled, subject to the terms set forth below, to purchase
from the Company up to [_______]
(             )
shares (as adjusted from time to time as provided in Section 7 of this Warrant,
the “Warrant
Shares”) of common stock, no par value (the “Common
Stock”), of the Company at a price of $2.255 per Warrant Share (as
adjusted from time to time as provided in Section 7, the “Exercise
Price”), at any time and from time to time from and after the date
thereof and through and including 5:00 p.m. New York City time on October 29,
2012 (the “Expiration
Date”), and subject to the terms and conditions set forth
below.  This Warrant is issued pursuant to the terms of a Securities
Purchase Agreement dated as of October 29, 2009 by and among the Company and the
investors listed on the Schedule of Buyers attached hereto (the “SPA”).  Defined
terms not otherwise defined herein shall have the respective meanings set forth
in the SPA.

    


    1. Registration
of Warrant.  The Company shall
register this Warrant upon records to be maintained by the Company for that
purpose (the “Warrant
Register”), in the name of the record Warrant Holder hereof from time to
time.  The Company may deem and treat the registered Warrant Holder of
this Warrant as the absolute owner hereof for the purpose of any exercise hereof
or any distribution to the Warrant Holder, and for all other purposes, and the
Company shall not be affected by notice to the contrary.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    2. Investment
Representation.  The Warrant
Holder by accepting this Warrant represents that the Warrant Holder is acquiring
this Warrant for its own account or the account of an affiliate (that is an
“accredited investor,” as defined under Regulation D promulgated under the
Securities Act (an “Accredited Investor”), which has
been identified to and approved by the Company for investment purposes and not
with the view to any offering or distribution and that the Warrant Holder will
not sell or otherwise dispose of this Warrant or the underlying Warrant Shares
in violation of applicable securities laws.  The Warrant Holder
acknowledges that the certificates representing any Warrant Shares will bear a
legend indicating that they have not been registered under the Securities Act,
and may not be sold by the Warrant Holder except pursuant to an effective
registration statement or pursuant to an exemption from registration
requirements of the Securities Act and in accordance with federal and state
securities laws.

     

    3. Validity
of Warrant and Issue of Shares.  The Company
represents and warrants that this Warrant has been duly authorized and validly
issued and warrants and agrees that all of the Warrant Shares, when issued on
exercise of this Warrant, shall be duly authorized, validly issued, fully paid
and nonassessable and free from all taxes, Liens and charges with respect to the
issue thereof other than those incurred by the Holder.  The Company
further warrants and agrees that during the Exercise Period, the Company will at
all times have authorized and reserved a sufficient number of Common Stock to
provide for the exercise of the rights represented by this Warrant.

     

    4. Registration of Transfers
and Exchange of Warrants.

     

    a. Subject
to compliance with the federal and state securities laws, the Company shall
register the transfer of any portion of this Warrant in the Warrant Register,
upon surrender of this Warrant with the Form of Assignment attached hereto duly
completed and signed to the Company at the office specified in or pursuant to
Section 12.  Upon any such registration or transfer, a new warrant to
purchase Common Stock, in substantially the form of this Warrant (any such new
warrant, a “New
Warrant”), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the transferring
Warrant Holder.  The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance of such transferee of all of the rights
and obligations of a Warrant Holder of a Warrant.

     

    b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to the
office of the Company for one or more New Warrants, evidencing in the aggregate
the right to purchase the number of Warrant Shares which may then be purchased
hereunder.  Any such New Warrant will be dated the date of such
exchange.

     

    
      	
              5.  

            	
              Exercise of
      Warrants.

            


    

     

    a. Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, at its address set forth in Section
12, and upon payment and delivery of the Exercise Price per Warrant Share
multiplied by the number of Warrant Shares that the Warrant Holder intends to
purchase hereunder, in lawful money of the United States of America, by wire
transfer or by certified or official bank check or checks, to the Company, all
as specified by the Warrant Holder in the Form of Election to Purchase, the
Company shall promptly (but in no event later than three Business Days after the
Date of Exercise (as defined herein)) issue or cause to be issued  and
cause to be delivered to or upon the written order of the Warrant Holder and in
such name or names as the Warrant Holder may designate (subject to the
restrictions on transfer described in the legend set forth on the face of this
Warrant), a certificate for the Warrant Shares issuable upon such exercise, with
such restrictive legend as required by the Securities Act.  Any Person
so designated by the Warrant Holder to receive Warrant Shares shall be deemed to
have become holder of record of such Warrant Shares as of the Date of Exercise
of this Warrant; provided, however, that in the
event the Warrant Shares are not registered for resale by the Warrant Holder,
such Person shall reasonably demonstrate to the Company its status as an
Accredited Investor.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    b. A “Date
of Exercise” means the date on which the Company shall have received (i) this
Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.

     

    c. This
Warrant shall be exercisable at any time and from time to time during the
Exercise Period for such number of Warrant Shares as is indicated in the
attached Form of Election To Purchase.  If less than all of the
Warrant Shares which may be purchased under this Warrant are exercised at any
time, the Company shall issue or cause to be issued, at its expense, a New
Warrant evidencing the right to purchase the remaining number of Warrant Shares
for which no exercise has been evidenced by this Warrant.

     

    d. (i) Notwithstanding anything
contained herein to the contrary, but subject to Section 5(e) and Section 6, the
holder of this Warrant may, at its election exercised 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 Company 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 - C))/B

     

    (ii)           For
purposes of the foregoing formula:

     

    A= the
total number shares with respect to which this Warrant is then being
exercised.

     

    B= the
last reported sale price (as reported by Bloomberg) of the Common Stock on the
trading day immediately preceding the date of the Exercise Notice.

     

    C= the
Warrant Exercise Price then in effect at the time of such exercise.

     

    e. The
holder of this Warrant may not make a Cashless Exercise if the resale of the
Warrant Shares by the Holder of the Warrant Shares is covered by an effective
registration statement.

     

    6. Maximum
Exercise.   The Warrant
Holder shall not be entitled to exercise this Warrant on a Date of
Exercise in connection with that number of shares of Common Stock which would be
in excess of the sum of (i) the number of shares of Common Stock beneficially
owned by the Warrant Holder and its affiliates on the Date of Exercise, and (ii)
the number of shares of Common Stock issuable upon the exercise of this Warrant
with respect to which the determination of this limitation is being made on an
Date of Exercise, which would result in beneficial ownership by the Warrant
Holder and its affiliates of more than 4.9% of the outstanding shares of Common
Stock on such date.  This Section 6 may be waived on 61 days prior
written notice.  As used in this Warrant, beneficial ownership shall
be determined in accordance with Section 13(d) of the Exchange Act and
Regulation 13d-3 thereunder.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    7. Adjustment
of Exercise Price and Number of Shares.  The character of the
shares of stock or other securities at the time issuable upon exercise of this
Warrant and the Exercise Price therefor, are subject to adjustment upon the
occurrence any of the following events which shall have occurred or which shall
occur at any time on or after the Closing Date and all such adjustments shall be
cumulative:

     

    a. Adjustment for Stock Splits, Stock
Dividends, Recapitalizations, Etc.  The Exercise Price of this
Warrant and the number of shares of Common Stock or other securities at the time
issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock dividend, stock split, stock distribution, combination of
shares, reverse split, reclassification, recapitalization or other similar event
affecting the number of outstanding shares of stock or securities.

     

    b. Adjustment for Reorganization,
Consolidation, Merger, Etc.  In case of any consolidation or
merger of the Company with or into any other corporation, entity or person, or
any other corporate reorganization, in which the Company shall not be the
continuing or surviving entity of such consolidation, merger or reorganization
(any such transaction being hereinafter referred to as a “Reorganization”),
then, in each case, the holder of this Warrant, on exercise hereof at any time
after the consummation or effective date of such Reorganization (the “Effective
Date”),
shall receive, in lieu of the shares of stock or other securities at any time
issuable upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).

     

    c. Certificate as to
Adjustments.  In case of any adjustment or readjustment in the
price or kind of securities issuable on the exercise of this Warrant, the
Company will promptly give written notice thereof to the holder of this Warrant
in the form of a certificate, certified and confirmed by the Secretary of the
Company, setting forth such adjustment or readjustment and showing in reasonable
detail the facts upon which such adjustment or readjustment is
based.

     

    d. Sales of Common Stock at less than
the Exercise Price. From the date hereof except for (i) issuances
covered by Sections 7(a), 7(b) and 7(e) hereof or (ii) an issuance of Common
Stock upon exercise or upon conversion of warrants, options or other convertible
securities for which an adjustment has already been made pursuant to this
Section 7, as to all of which this Section 7(d) does not apply, if the Company
closes on the sale or issuance of Common Stock at a price, or issues warrants,
options, convertible debt or equity securities with a exercise price per share
or conversion price which is less than the Exercise Price (such lower sales
price, conversion or exercise price, as the case may be, being referred to as
the “Lower
Price”), then the Exercise Price shall be reduced and only reduced to
equal the Lower Price and the number of Warrant Shares issuable hereunder shall
be increased such that the aggregate Exercise Price payable hereunder, after
taking into account the decrease in the Exercise Price, shall be equal to the
aggregate Exercise Price prior to such adjustment..  For purpose of
determining the exercise price of warrants issued by the Company, the price, if
any, paid per share for the warrants shall be added to the exercise price of the
warrants. Such adjustment shall be made successively whenever such an issuance
is made.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    e. Price
Adjustments Based on Pre-Tax Income per Share.

     

    
      	
              i.  

            	
              In
      the event the Company’s After-Tax Income for the year ended June 30, 2010
      is less than the 2010 Guaranteed ATNI  then the Exercise Price
      shall be adjusted by multiplying the Exercise Price by a fraction the
      numerator of which shall be the After-Tax Net Income and the denominator
      shall be the 2010 Guaranteed ATNI (defined below) provided that in no
      event shall the Exercise Price be reduced by more than
      50%.  Thus, if  After-Tax Income for the year ended
      June 30, 2010 is 80% of the 2010 Guaranteed ATNI, the Exercise Price shall
      be multiplied by 80%. 

            


    

     

    
      	
              ii.  

            	
              Such
      reduction shall be made at the time the Company files its Form 10-K for
      the year ended June 30, 2010, and shall apply to the Warrants which are
      outstanding on the date the Form 10-K is filed, or, if not filed on time,
      on the date that filing was required, after giving effect to any extension
      pursuant to Rule 12b-25 of the Exchange Act.  In the event that
      the Form 10-K is not filed with the SEC within thirty (30) days after the
      date that filing was required, the Exercise Price shall automatically be
      reduced by 50%.

            


    

     

    8. Fractional
Shares.  The Company shall
not be required to issue or cause to be issued fractional Warrant Shares on the
exercise of this Warrant.  The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of this
Warrant so presented.  If any fraction of a Warrant Share would,
except for the provisions of this Section 8, be issuable on the exercise of this
Warrant, the Company shall, at its option, (i) pay an amount in cash equal to
the Exercise Price multiplied by such fraction or (ii) round the number of
Warrant Shares issuable, up to the next whole number.

     

    9. Sale or
Merger of the Company.  Upon a Merger
Transaction (as defined below), the restriction contained in Section 6 shall
immediately be released and the Warrant Holder will have the right to exercise
this Warrant concurrently with such Merger Transaction.  For purposes
of this Warrant, the term “Merger Transaction” shall
mean a consolidation or merger of the Company into another company or entity in
which the Company is not the surviving entity or the sale of all or
substantially all of the assets of the Company to another company or entity not
controlled by the then existing stockholders of the Company.

     

    10. Notice of
Intent to Sell or Merge the Company.  The Company will
give Warrant Holder ten (10) Business Days notice before any Merger
Transaction.

     

    11. Issuance
of Substitute Warrant. In the event of a merger,
consolidation, recapitalization or reorganization of the Company or a
reclassification of Company shares of stock, which results in an adjustment to
the number of shares subject to this Warrant and/or the Exercise Price
hereunder, the Company agrees to issue to the Warrant Holder a substitute
Warrant reflecting the adjusted number of shares and/or Exercise Price upon the
surrender of this Warrant to the Company.  However, in the event that
the Company does not issue a substitute warrant, the number and class of Warrant
Shares or other securities and the Exercise Price shall be adjusted as provided
in this Warrant, and this Warrant shall relate the adjusted number of Warrant
Shares and Exercise Price.

     

    12. Notice.  All notices and
other communications hereunder shall be in writing and shall be deemed to have
been given (i) on the date they are delivered if delivered in person; (ii) on
the date initially received if delivered by facsimile transmission followed by
registered or certified mail confirmation; (iii) on the date delivered by an
overnight courier service; or (iv) on the date of delivery after it is mailed by
registered or certified mail, return receipt requested with postage and other
fees prepaid as follows:

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              If
      to the Company:

            	
              Longwei
      Petroleum Investment Holding Limited

              No.
      30, Guanghua Street, Xiaojingyu Xiang,

              Wanbailin
      District,

              Taiyan
      City, Shanxi Province 

              People’s
      Republic of China 030024

              
                Attn:
      Chief Executive Officer 

                  Facsimile:
      617-977-8618

                

              

            


    

     

    with a copy
to:

     

    
      
        	
              	
                
                  Sichenzia
      Ross Friedman Ference LLP

                  61
      Broadway, 32nd Floor

                  New
      York, NY 10006 

                    Facsimile:  212
      930 9725 

                      Attn.:  Darrin
      M Ocasio,
Esq.

                    

                  

                

              


      

    

     

    If to the Warrant
Holder:

    


    at the
address or telecopier number and to the attention of the person shown on the
Company’s warrant register.

    


    with a copy
to:

     

    
      	
            	
              
                
                  National
      Securities Corporation

                  330
      Madison Avenue, 18th
      Floor,

                  New
      York, NY 10017 

                    Attn:
      Jonathan C. Rich

                  

                

              

            


    

     

    
      	
              13.  

            	
              Miscellaneous.

            


    

     

    a. This
Warrant shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.  This Warrant may
be amended only by a writing signed by the Company and the Warrant
Holder.

     

    b. Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.

     

    c. This
Warrant shall be governed by, construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof.

     

    d. The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.

     

    e. In case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    f. The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a stockholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.

     

    IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by the
authorized officer as of the date first above stated.

    


    Date:          ,
2009                                                                                     

    


    


    LONGWEI
PETROLEUM INVESTMENT HOLDING LIMITED.

     

    By:________________________________________                     

    Name:_____________________________________

    Title:______________________________________

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    FORM
OF ELECTION TO PURCHASE

    


    (To be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)

    


    To:  Longwei
Petroleum Investment Holding Limited:

    


    In
accordance with the Warrant enclosed with this Form of Election to Purchase, the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common Stock”), no par value, of Longwei Petroleum Investment
Holding Limited. and encloses the warrant and $____ for each Warrant Share being
purchased or an aggregate of $________________ in cash or certified or official
bank check or checks, which sum represents the aggregate Exercise Price (as
defined in the Warrant) together with any applicable taxes payable by the
undersigned pursuant to the Warrant.

    


    The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:

    


                                                                               


    


                                                                               


    
      

    

    
      

    

    
    

    
      

    

                                                                             
(Please
print name and address)

     

     

    
      
 (Please
insert Social Security or Tax Identification Number)

    


    If the
number of shares of Common Stock issuable upon this exercise shall not be all of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:

    


                                                                               


    


    
      
                                          
(Please
print name and address)

    


    Dated:________________________________________   Name of Warrant
Holder:____________________________________

    


                                                                    

     

    
      

    

    (Print)

     

    
      

    

     (By:)

     

    
      

    

    (Name:)

     

    
      

    

     (Title:)

     

    Signature
must conform in all respects to name of Warrant
Holder as specified on the face of the Warrant