Contract
Exhibit
4.5
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON STOCK ISSUABLE
UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS
WARRANT UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO NEW ORIENTAL ENERGY & CHEMICAL CORP. THAT
SUCH REGISTRATION IS NOT REQUIRED.
Right to
Purchase up to [________] Shares of Common Stock of
New
Oriental Energy & Chemical Corp.
(subject
to adjustment as provided herein)
COMMON
STOCK PURCHASE WARRANT
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No.
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Date: [___],
2010
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New Oriental Energy & Chemical
Corp., a corporation organized under the laws of the State of Delaware
(the “Company”), hereby
certifies that, for value received, [_____________________] or its assigns (the
“Holder”), is entitled,
subject to the terms set forth below, to purchase from the Company from and
after [___], 2010 (a date that is six (6) months after the issuance of this
Common Stock Purchase Warrant (the “Warrant”) in connection with a
private placement by the Company) (the “Issue Date”) and at any time
or from time to time before 5:00 p.m., New York time, through the close of
business [___], 2013 (a date that is three (3) years after the issuance of the
Warrant) (the “Expiration
Date”), up to [______] fully paid and nonassessable shares of Common
Stock (as hereinafter defined), $0.001 par value per share, at the applicable
Exercise Price (as defined below) per share. The number and character
of such shares of Common Stock and the applicable Exercise Price per share are
subject to adjustment as provided herein.
As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) “Common
Stock” means (i) the Company’s Common Stock, par value $0.001 per share; and
(ii) any other securities into which or for which any of the securities
described in the preceding clause (i) may be converted or exchanged pursuant to
a plan of recapitalization, reorganization, merger, sale of assets or
otherwise.
(b) “Company”
means New Oriental Energy & Chemical Corp. and any person or entity which
shall succeed, or assume the obligations of, New Oriental Energy & Chemical
Corp. hereunder.
(c) “Exercise
Price” means a price of $2.00.
(d) “Other
Securities” means any stock (other than Common Stock) and other securities of
the Company or any other person (corporate or otherwise) which the holder of the
Warrant at any time shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 3 or
otherwise.
9. EXERCISE OF
WARRANT.
(a) Number of Shares Issuable
upon Exercise. From and after the Issue Date through and
including the Expiration Date, the Holder shall be entitled to receive, upon
exercise of this Warrant in whole or in part, by delivery of an original or fax
copy of an exercise notice in the form attached hereto as Exhibit A (the “Exercise Notice”), shares of
Common Stock of the Company, subject to adjustment pursuant to Section
4.
(b) Company
Acknowledgment. The Company will, at the time of the exercise
of this Warrant, upon the request of the Holder hereof, acknowledge in writing
its continuing obligation to afford to such Holder any rights to which such
Holder shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant. If the Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to such Holder any such rights.
(c) Trustee for Warrant
Holders. In the event that a bank or trust company shall have
been appointed as trustee for the Holders of this Warrant pursuant to Subsection
3.2, such bank or trust company shall have all the powers and duties of a
warrant agent (as hereinafter described) and shall accept, in its own name for
the account of the Company or such successor person as may be entitled thereto,
all amounts otherwise payable to the Company or such successor, as the case may
be, on exercise of this Warrant pursuant to this Section 1.
10. PROCEDURE FOR
EXERCISE.
(a) Delivery of Stock
Certificates, Etc., on Exercise. The Company agrees that the
shares of Common Stock purchased upon exercise of this Warrant shall be deemed
to be issued to the Holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment shall have been made for such shares in accordance
herewith. Each date on which an Exercise Notice is delivered or
telecopied to the Company in accordance with the provisions hereof shall be
deemed an Exercise Date (the “Exercise
Date”). Pursuant to the terms of each Exercise Notice, the
Company at its expense (including the payment by it of any applicable issue
taxes) will issue instructions to the transfer agent within one (1) business day
of the date of the delivery to the Company of an Exercise Notice and shall cause
the transfer agent to transmit the certificates representing the shares of
Common Stock (“Warrant
Shares”) purchased and issuable upon such exercise to the Holder by
crediting the account of the Holder’s designated broker with the Depository
Trust Corporation (“DTC”) through its Deposit
Withdrawal Agent Commission (“DWAC”) system within three (3)
business days after receipt by the Company of the Exercise Notice. In
the case of the exercise of this Warrant such exercise shall be deemed to have
been exercised and the Warrant Shares shall be deemed to have been issued upon
the date of receipt by the Company of the Exercise Notice. The Holder
shall be treated for all purposes as the record holder of the Warrant
Shares.
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(b) Exercise. Payment
may be made either in cash, by wire transfer, or by certified or official bank
check payable to the order of the Company in an amount equal to the applicable
aggregate Exercise Price, for the number of shares of Common Stock specified in
the Exercise Notice (as such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock issuable to the Holder
per the terms of this Warrant) and the Holder shall thereupon be entitled to
receive the number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock (or Other Securities) determined as
provided herein.
11. EFFECT OF REORGANIZATION,
ETC.; ADJUSTMENT OF EXERCISE PRICE.
(a) Reorganization,
Consolidation, Merger, Etc. In case at any time or from time
to time, the Company shall (a) effect a reorganization, (b) consolidate with or
merge into any other person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Company, then, in each such case, as a
condition to the consummation of such a transaction, proper and adequate
provision shall be made by the Company whereby the Holder, on the exercise
hereof as provided in Section 2, at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Common Stock (or
Other Securities) issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such Holder would have been entitled upon such consummation or in
connection with such transaction, as the case may be, if such Holder had so
exercised this Warrant, immediately prior thereto, all subject to further
adjustment thereafter as provided in Section 4.
(b) Dissolution. In
the event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, concurrently with
any distributions made to holders of its Common Stock, shall at its expense
deliver or cause to be delivered to the Holder the stock and other securities
and property (including cash, where applicable) receivable by the
Holder pursuant to Section 3.1, or, if the Holder shall so instruct
the Company, to a bank or trust company specified by the Holder and having its
principal office in New York, NY as trustee for the Holder (the
“Trustee”).
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(c) Continuation of
Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this
Section 3, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided hereunder. In
the event this Warrant does not continue in full force and effect after the
consummation of the transactions described in this Section 3, then the Company’s
securities and property (including cash, where applicable) receivable by the
Holder will be delivered to the Holder or the Trustee as contemplated
by Section 3.2.
12. EXTRAORDINARY EVENTS
REGARDING COMMON STOCK. IF THE COMPANY AT ANY TIME ON OR AFTER
THE ISSUE 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 ISSUE 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. IN NO EVENT SHALL THE HOLDER PAY AN EXERCISE
PRICE THAT IN THE AGGREGATE EXCEEDS THE AGGREGATE EXERCISE PRICE IN EFFECT PRIOR
TO THE PROPOSED ADJUSTMENT. ANY ADJUSTMENT UNDER THIS SECTION 4 SHALL
BECOME EFFECTIVE AT THE CLOSE OF BUSINESS ON THE DATE THE SUBDIVISION OR
COMBINATION BECOMES EFFECTIVE.
13. CERTIFICATE AS TO
ADJUSTMENTS. IN EACH CASE OF ANY ADJUSTMENT OR READJUSTMENT IN
THE SHARES OF COMMON STOCK (OR OTHER SECURITIES) ISSUABLE ON THE EXERCISE OF
THIS WARRANT, THE COMPANY AT ITS EXPENSE WILL PROMPTLY CAUSE ITS CHIEF FINANCIAL
OFFICER OR OTHER APPROPRIATE DESIGNEE TO COMPUTE SUCH ADJUSTMENT OR READJUSTMENT
IN ACCORDANCE WITH THE TERMS OF THIS WARRANT AND PREPARE A CERTIFICATE SETTING
FORTH SUCH ADJUSTMENT OR READJUSTMENT AND SHOWING IN DETAIL THE FACTS UPON WHICH
SUCH ADJUSTMENT OR READJUSTMENT IS BASED, INCLUDING A STATEMENT OF (A) THE
CONSIDERATION RECEIVED OR RECEIVABLE BY THE COMPANY FOR ANY ADDITIONAL SHARES OF
COMMON STOCK (OR OTHER SECURITIES) ISSUED OR SOLD OR DEEMED TO HAVE BEEN ISSUED
OR SOLD, (B) THE NUMBER OF SHARES OF COMMON STOCK (OR OTHER SECURITIES)
OUTSTANDING OR DEEMED TO BE OUTSTANDING, AND (C) THE EXERCISE PRICE AND THE
NUMBER OF SHARES OF COMMON STOCK TO BE RECEIVED UPON EXERCISE OF THIS WARRANT,
IN EFFECT IMMEDIATELY PRIOR TO SUCH ADJUSTMENT OR READJUSTMENT AND AS ADJUSTED
OR READJUSTED AS PROVIDED IN THIS WARRANT. THE COMPANY WILL FORTHWITH
MAIL A COPY OF EACH SUCH CERTIFICATE TO THE HOLDER AND ANY WARRANT AGENT OF THE
COMPANY (APPOINTED PURSUANT TO SECTION 10 HEREOF).
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14. RESERVATION OF STOCK, ETC.,
ISSUABLE ON EXERCISE OF WARRANT. THE COMPANY WILL AT ALL TIMES
RESERVE AND KEEP AVAILABLE, SOLELY FOR ISSUANCE AND DELIVERY ON THE EXERCISE OF
THIS WARRANT, SHARES OF COMMON STOCK (OR OTHER SECURITIES) FROM TIME TO TIME
ISSUABLE ON THE EXERCISE OF THIS WARRANT.
15. ASSIGNMENT; EXCHANGE OF
WARRANT. SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES
LAWS, THIS WARRANT, AND THE RIGHTS EVIDENCED HEREBY, MAY BE TRANSFERRED BY ANY
REGISTERED HOLDER HEREOF (A “TRANSFEROR”) IN WHOLE OR IN
PART. ON THE SURRENDER FOR EXCHANGE OF THIS WARRANT, WITH THE
TRANSFEROR’S ENDORSEMENT IN THE FORM OF EXHIBIT B ATTACHED
HERETO (THE “TRANSFEROR
ENDORSEMENT FORM”) AND TOGETHER WITH EVIDENCE REASONABLY SATISFACTORY TO
THE COMPANY DEMONSTRATING COMPLIANCE WITH APPLICABLE SECURITIES LAWS, WHICH
SHALL INCLUDE, WITHOUT LIMITATION, THE PROVISION OF A LEGAL OPINION FROM THE
TRANSFEROR’S COUNSEL (AT THE COMPANY’S EXPENSE) THAT SUCH TRANSFER IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF APPLICABLE SECURITIES LAWS, THE COMPANY AT
ITS EXPENSE (BUT WITH PAYMENT BY THE TRANSFEROR OF ANY APPLICABLE TRANSFER
TAXES) WILL ISSUE AND DELIVER TO OR ON THE ORDER OF THE TRANSFEROR THEREOF A NEW
WARRANT OF LIKE TENOR, IN THE NAME OF THE TRANSFEROR AND/OR THE TRANSFEREE(S)
SPECIFIED IN SUCH TRANSFEROR ENDORSEMENT FORM (EACH A “TRANSFEREE”), CALLING IN THE
AGGREGATE ON THE FACE OR FACES THEREOF FOR THE NUMBER OF SHARES OF COMMON STOCK
CALLED FOR ON THE FACE OR FACES OF THE WARRANT SO SURRENDERED BY THE
TRANSFEROR.
16. REPLACEMENT OF
WARRANT. ON RECEIPT OF EVIDENCE REASONABLY SATISFACTORY TO THE
COMPANY OF THE LOSS, THEFT, DESTRUCTION OR MUTILATION OF THIS WARRANT AND, IN
THE CASE OF ANY SUCH LOSS, THEFT OR DESTRUCTION OF THIS WARRANT, ON DELIVERY OF
AN INDEMNITY AGREEMENT OR SECURITY REASONABLY SATISFACTORY IN FORM AND AMOUNT TO
THE COMPANY OR, IN THE CASE OF ANY SUCH MUTILATION, ON SURRENDER AND
CANCELLATION OF THIS WARRANT, THE COMPANY AT ITS EXPENSE WILL EXECUTE AND
DELIVER, IN LIEU THEREOF, A NEW WARRANT OF LIKE TENOR.
17. MAXIMUM
EXERCISE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THE HOLDER SHALL NOT BE ENTITLED TO EXERCISE THIS WARRANT IN
CONNECTION WITH THAT NUMBER OF SHARES OF COMMON STOCK WHICH WOULD EXCEED THE
DIFFERENCE BETWEEN (I) 19.99% OF THE ISSUED AND OUTSTANDING SHARES OF COMMON
STOCK AND (II) THE NUMBER OF SHARES OF COMMON STOCK BENEFICIALLY OWNED BY THE
HOLDER. FOR THE PURPOSES OF THE IMMEDIATELY PRECEDING SENTENCE,
BENEFICIAL OWNERSHIP SHALL BE DETERMINED IN ACCORDANCE WITH SECTION 13(D) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND REGULATION 13D-3
THEREUNDER.
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18. WARRANT
AGENT. THE COMPANY MAY, BY WRITTEN NOTICE TO THE HOLDER OF THE
WARRANT, APPOINT AN AGENT FOR THE PURPOSE OF ISSUING COMMON STOCK (OR OTHER
SECURITIES) ON THE EXERCISE OF THIS WARRANT PURSUANT TO SECTION 1, EXCHANGING
THIS WARRANT PURSUANT TO SECTION 7, AND REPLACING THIS WARRANT PURSUANT TO
SECTION 8, OR ANY OF THE FOREGOING, AND THEREAFTER ANY SUCH ISSUANCE, EXCHANGE
OR REPLACEMENT, AS THE CASE MAY BE, SHALL BE MADE AT SUCH OFFICE BY SUCH
AGENT.
19. TRANSFER ON THE COMPANY’S
BOOKS. UNTIL THIS WARRANT IS TRANSFERRED ON THE BOOKS OF THE
COMPANY, THE COMPANY MAY TREAT THE REGISTERED HOLDER HEREOF AS THE ABSOLUTE
OWNER HEREOF FOR ALL PURPOSES, NOTWITHSTANDING ANY NOTICE TO THE
CONTRARY.
20. NOTICES,
ETC. ALL NOTICES AND OTHER COMMUNICATIONS FROM THE COMPANY TO
THE HOLDER SHALL BE MAILED BY FIRST CLASS REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, AT SUCH ADDRESS AS MAY HAVE BEEN FURNISHED TO THE COMPANY IN WRITING BY
SUCH HOLDER OR, UNTIL ANY SUCH HOLDER FURNISHES TO THE COMPANY AN ADDRESS, THEN
TO, AND AT THE ADDRESS OF, THE LAST HOLDER WHO HAS SO FURNISHED AN ADDRESS TO
THE COMPANY.
21. MISCELLANEOUS. THIS
WARRANT AND ANY TERM HEREOF MAY BE CHANGED, WAIVED, DISCHARGED OR TERMINATED
ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT
OF SUCH CHANGE, WAIVER, DISCHARGE OR TERMINATION IS SOUGHT. THIS
WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS. ANY ACTION BROUGHT CONCERNING THE TRANSACTIONS CONTEMPLATED BY
THIS WARRANT SHALL BE BROUGHT ONLY IN THE STATE COURTS OF NEW YORK OR IN THE
FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT THE
HOLDER MAY CHOOSE TO WAIVE THIS PROVISION AND BRING AN ACTION OUTSIDE THE STATE
OF NEW YORK. THE INDIVIDUALS EXECUTING THIS WARRANT ON BEHALF OF THE
COMPANY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS AND WAIVE TRIAL BY
JURY. THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE
OTHER PARTY ITS REASONABLE ATTORNEYS’ FEES AND COSTS. IN THE EVENT
THAT ANY PROVISION OF THIS WARRANT IS INVALID OR UNENFORCEABLE UNDER ANY
APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION SHALL BE DEEMED
INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT THEREWITH AND SHALL BE DEEMED
MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF LAW. ANY SUCH
PROVISION WHICH MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS
WARRANT. THE HEADINGS IN THIS WARRANT ARE FOR PURPOSES OF REFERENCE
ONLY, AND SHALL NOT LIMIT OR OTHERWISE AFFECT ANY OF THE TERMS
HEREOF. THE COMPANY ACKNOWLEDGES THAT LEGAL COUNSEL PARTICIPATED IN
THE PREPARATION OF THIS WARRANT AND, THEREFORE, STIPULATES THAT THE RULE OF
CONSTRUCTION THAT AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY
SHALL NOT BE APPLIED IN THE INTERPRETATION OF THIS WARRANT TO FAVOR ANY PARTY
AGAINST THE OTHER PARTY.
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[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has executed this Common Stock Purchase Warrant as
of the date first written above.
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NEW
ORIENTAL ENERGY & CHEMICAL CORP.
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By:
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Name:
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Title:
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[Signature
Page to Investor Warrant]
Exhibit
A
FORM
OF SUBSCRIPTION
(To Be
Signed Only On Exercise Of Warrant)
TO:
NEW ORIENTAL ENERGY & CHEMICAL CORP.
[_____________________]
[_____________________]
Attention: Chief
Financial Officer
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase ________ shares of the Common
Stock covered by such Warrant.
The
undersigned herewith makes payment of the full Exercise Price for such shares at
the price per share provided for in such Warrant, which is
$___________. Such payment takes the form of $__________ in lawful
money of the United States.
The
undersigned requests that the certificates for such shares be issued in the name
of, and delivered to
_________________________________________________________________ whose address
is
______________________________________________________________________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933,
as amended (the “Securities Act”) or pursuant to an exemption from registration
under the Securities Act.
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Dated:
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(Signature
must conform to name of holder as specified on the face of the
Warrant)
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Address:
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A-1
Exhibit
B
FORM
OF TRANSFEROR ENDORSEMENT
(To Be
Signed Only On Transfer Of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading “Transferees” the right represented by
the within Warrant to purchase the percentage and number of shares of Common
Stock of New Oriental Energy & Chemical Corp. into which the within Warrant
relates specified under the headings “Percentage Transferred” and “Number
Transferred,” respectively, opposite the name(s) of such person(s) and appoints
each such person attorney to transfer its respective right on the books of New
Oriental Energy & Chemical Corp. with full power of substitution in the
premises.
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Transferees
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Address
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Percentage
Transferred
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Number
Transferred
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Dated:
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(Signature
must conform to name of holder as specified on the face of the
Warrant)
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Address:
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SIGNED
IN THE PRESENCE OF:
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(Name)
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ACCEPTED
AND AGREED:
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[TRANSFEREE]
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(Name)
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