Contract
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW. THIS
WARRANT AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE PLEDGED,
TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR DELIVERY OF
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE WITH THE SECURITIES ACT OR UNLESS SOLD IN FULL COMPLIANCE WITH RULE
144 UNDER THE SECURITIES ACT.
EMERALD
ACQUISITION CORPORATION
Warrant
for the Purchase of Ordinary Shares
|
No.
2009-[ ]
|
_________
Shares
|
FOR VALUE
RECEIVED, EMERALD ACQUISITION CORPORATION, a Cayman Islands corporation (the
“Company”),
hereby certifies that [________________], its designee or its permitted assigns
is entitled to purchase from the Company, at any time or from time to time
commencing on
[ ],
2009 (the “Issuance
Date”) and prior to 5:00 P.M., New York City time, on
[ ], 2014 (the “Exercise
Period”), [________________] fully paid and non-assessable ordinary
shares, $0.001 par value per share, of the Company for a purchase price per
share of $6.00
(subject to adjustment at set forth in Section 3), pursuant to that
certain Private
Placement Memorandum
dated October 1, 2009, as amended or supplemented from time to time (the
“Memorandum”). Hereinafter, (i) said ordinary shares, $0.001
par value per share, of the Company, are
referred to as the “Ordinary
Shares”; (ii) the Ordinary Shares (subject to adjustment as set forth
herein) purchasable hereunder or under any other Warrant (as hereinafter
defined) are referred to as the “Warrant
Shares”; (iii) the aggregate purchase price payable for the Warrant
Shares purchasable hereunder is referred to as the “Aggregate
Warrant Price”; (iv) the price payable (initially $6.00 per share subject
to adjustment as set forth herein) for each of the Warrant Shares hereunder is
referred to as the “Per
Share Warrant Price”; (v) this Warrant, all similar Warrants issued on
the date hereof and all warrants hereafter issued in exchange or substitution
for this Warrant or such similar Warrants are referred to as the “Warrants”;
and (vi) the holder or their
permitted or registered assigns of this Warrant is referred to as the
“Holder”
and the holder of this Warrant and all other Warrants and Warrant Shares are
referred to as the “Holders”
and Holders of more than fifty percent (50%) of the Warrant Shares then issuable
upon exercise of then outstanding Warrants are referred to as the “Majority
of the Holders”).
This
Warrant is one of the Warrants to purchase Ordinary Shares issued pursuant to a
Subscription Agreement (the “Subscription
Agreement”)
between the Company and the Subscriber named therein in connection with a
private placement by the Company of units (the “Units”), each Unit consisting of
fifty thousand (50,000) Ordinary Shares and a Warrant to purchase twenty five
thousand (25,000) Ordinary Shares, as further described in the Memorandum dated
October 1, 2009. By acceptance of this Warrant, the Holder agrees to
comply with all applicable provisions of the Subscription Agreement. Defined
terms used but not otherwise defined herein shall have the meanings ascribed to
such terms in the Memorandum.
1.
Exercise
of Warrant.
(a) Except
as set forth in Section
1(d) below, this Warrant may be exercised in whole at any time, or in
part from time to time, by the Holder during the Exercise Period by the
surrender of this Warrant (with the exercise notice, in the form attached hereto
(the “Exercise
Notice”), duly executed) at the address set forth in Section
10(a)
hereof, together with payment in
immediately available funds of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part, with payment
for the Warrant Shares made by certified or official bank check payable to the
order of, or wire transfer of immediately available funds to, the Company;
or
(b) If
this Warrant is exercised in part, this Warrant must be exercised for a number
of whole shares of the Ordinary Shares and the Holder is entitled to receive a
new Warrant covering the Warrant Shares that have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon surrender of this Warrant in connection with the
exercise of this Warrant pursuant to the terms hereof, the Company will (i)
issue a certificate or certificates in the name of the Holder for the largest
number of whole shares of the Ordinary Shares to which the Holder shall be
entitled upon such exercise and, if this Warrant is exercised in whole, no
fractional Ordinary Shares are to be issued, but rather the number of Ordinary
Shares to which the Holder shall be entitled, shall be rounded up to the nearest
whole number, and (ii) deliver the other securities and properties receivable
upon the exercise of this Warrant, or the proportionate part thereof, if this
Warrant is exercised in part, pursuant to the provisions of this
Warrant.
(c) Notwithstanding
anything herein to the contrary, in no event shall the Holder have the right or
be required to exercise this Warrant to the extent, and only to the extent, that
as a result of such exercise, the aggregate number of Ordinary Shares
beneficially owned by the Holder, its affiliates and any “group” (as defined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended
and the rules promulgated thereunder (the “Exchange
Act”)) of
which the Holder may be deemed to be a party (collectively the “Affiliates”) would
exceed 9.99% of the outstanding Ordinary Shares immediately after giving effect
to such exercise. For purposes of this Section, beneficial ownership
shall be calculated in accordance with Sections 13(d) and Section 16(a) of the
Exchange Act. The provisions of this Section
1(d) may be
waived by a Holder as to itself (and solely as to itself) upon not less than
sixty-five (65) days prior written notice to the Company. For purposes of this
Warrant, in determining the number of outstanding Ordinary Shares, the Holder
may rely upon the number of outstanding Ordinary Shares as reflected in the
Company’s most recent annual or quarterly report on Form 10-K or Form 10-Q,
respectively.
(d) Upon
exercise of this Warrant, the Company shall promptly (but in no event later than
ten (10) business
days after the date the Exercise Notice is delivered to the Company (the
“Exercise
Date”)) issue or cause to be issued and cause to be delivered to or upon
the written order of the Holder (together with such other transfer documentation
as may be reasonably requested by the Company) and in such name or names as the
Holder may designate (provided that, if the Registration Statement (as defined
in the Subscription Agreement) is not effective and the Holder directs the
Company to deliver a certificate for the Warrant Shares in a name other than
that of the Holder or an Affiliate of the Holder, it shall deliver to the
Company on the Exercise Date an opinion of counsel reasonably satisfactory to
the Company to the effect that the issuance of such Warrant Shares in such other
name may be made pursuant to an available exemption from the registration
requirements of the Securities Act and all applicable state securities or blue
sky laws), a certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends, unless the Registration Statement covering the
resale of the Warrant Shares and naming the Holder as a selling stockholder
thereunder is not then effective or the Warrant Shares are not freely
transferable without volume restrictions pursuant to Rule 144(b) under the
Securities Act. The Holder, or any person permissibly so designated by the
Holder to receive Warrant Shares, shall be deemed to have become the holder of
record of such Warrant Shares as of the Exercise
Date.
-2-
2.
Reservation
of Warrant Shares; Listing. The Company agrees that, prior to the
expiration of this Warrant, the Company shall at all times (a) have authorized
and in reserve, and shall keep available, solely for issuance and delivery upon
the exercise of this Warrant, one hundred (100%) percent of the Ordinary Shares
issuble,
from time to time, upon the exercise of this Warrant, free and clear of
all restrictions on sale or transfer, other than under Federal or state
securities laws, and free and clear of all preemptive rights and rights of first
refusal and (b) if the Company hereafter lists its Ordinary Shares on any
national securities exchange, including NASDAQ, use its commercially reasonable
efforts to keep the Warrant Shares authorized for listing on such exchange upon
notice of issuance. The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Per Share Warrant Price in accordance with the terms hereof, be duly authorized,
validly
issued,
fully paid and nonassessable free
from all taxes, liens and charges in respect of the issue thereof. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged
with the duty of executing stock certificates, to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant by the Holder. The
Company will take all such action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the OTC
Bulletin Board, exchange, trading market of other inter-dealer electronic
quotation system upon which the Ordinary Shares may be
listed.
3.
Certain
Adjustments.
(a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is
outstanding: (i) pays a stock dividend or otherwise make a distribution or
distributions on the Ordinary Shares or any other equity or equity equivalent
securities payable in Ordinary Shares (which, for avoidance of doubt, shall not
include any Ordinary Shares issued by the Company upon exercise of this
Warrant)(“Ordinary
Shares Equivalents”), (ii) subdivides outstanding Ordinary Shares into a
larger number of shares, (iii) combines (including by way of reverse stock
split) outstanding Ordinary Shares into a smaller number of shares, or (iv)
issues by reclassification of the Ordinary Shares of the Company, then in each
case the Per Share Warrant Price shall be multiplied by a fraction the numerator
of which shall be the number of Ordinary Shares (excluding treasury shares, if
any) outstanding immediately before such event and the denominator of which
shall be the number of Ordinary Shares outstanding immediately after such event
and the number of shares issuable upon exercise of this Warrant shall be
proportionately adjusted. Any adjustment made pursuant to this Section
3(a) shall become effective at the close of business on the record date
for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective at the close of business on the
effective date in the case of a subdivision, combination or
re-classification.
(b) In
case of any capital reorganization or reclassification, or any consolidation or
merger to which the Company is a party other than a merger or consolidation in
which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of all or substantially all of the assets of the
Company, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company but excluding any exchange of securities or
merger with another corporation in which the Company is a continuing corporation
and that does not result in any reclassification of or similar change in the
Ordinary Shares), the Holder of this Warrant,
upon the exercise
hereof at any time thereafter shall be
entitled to receive, in lieu
of the stock or other securities and property receivable upon the exercise
hereof prior to such consolidation, merger, sale or other disposition,
reclassification, change, conversion or reorganization, the stock or other
securities or property to which such holder would have been entitled upon such
consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in Section
3(a) or
3(b); and in
each such case, the terms of this Section 3 shall be applicable to the
shares of stock or other securities properly
receivable upon the exercise of this Warrant after
such consolidation, merger, sale or other disposition, reclassification, change,
conversion or reorganization. The Company shall require the issuer of any
shares of stock or other securities or property thereafter deliverable on the
exercise of this Warrant to be responsible for all of the agreements and
obligations of the Company hereunder. Notice of any such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and of said provisions so proposed to be made, shall be
mailed to the Holders of the Warrants not less than ten (10) days prior to such
event. A sale of all or substantially all of the assets of the
Company for a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing
purposes.
-3-
(c) No
adjustment in the Per Share Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least $0.01 per Ordinary
Share; provided,
however,
that any adjustments which by reason of this Section
3(c) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment; provided,
further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section
3 (other than this subsection 3(c)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution, if any, to
the Holder of this Warrant or Ordinary Shares issuable upon the exercise
hereof. All calculations under this Section
3 shall be made to the nearest cent or to the nearest 1/100th of a share,
as the case may be. Anything in this Section
3 to the contrary notwithstanding, the Company shall be entitled to make
such reductions in the Per Share Warrant Price, in addition to those required by
this Section
3, as it in its discretion shall deem to be advisable in order that any
stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable. Anything
in this Section
3 to the
contrary notwithstanding, no adjustment made pursuant to any provision of this
Section
3 shall
have the net effect of increasing the Per Share Warrant Price in relation to the
split adjusted and distribution adjusted price of the Ordinary Shares issuable
upon exercise.
(d) Whenever
the Per Share Warrant Price or the number of Warrant Shares is adjusted as
provided in this Section
3 and upon any modification of the rights of a Holder of Warrants in
accordance with this Section
3, the Company shall promptly prepare a brief statement of the facts
requiring such adjustment or modification and the manner of computing the same
and cause copies of such certificate to be mailed to the Holders of the
Warrants. The Company may, but shall not be obligated to unless
requested by a Majority of the Holders, obtain, at its expense, a certificate of
a firm of independent public accountants of recognized standing selected by the
Board of Directors (who may be the regular auditors of the Company) setting
forth the Per Share Warrant Price and the number of Warrant Shares in effect
after such adjustment or the effect of such modification, a brief statement of
the facts requiring such adjustment or modification and the manner of computing
the same and cause copies of such certificate to be mailed to the Holders of the
Warrants.
(e) If
the Board of Directors of the Company shall declare any dividend or other
distribution with respect to the Ordinary Shares other than a cash distribution
out of earned surplus, the Company shall mail notice thereof to the Holders of
the Warrants not less than ten (10) days prior to the record date fixed for
determining stockholders entitled to participate in such dividend or other
distribution.
(f) If,
as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
Ordinary Shares and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine, in good faith, the allocation of the adjusted Per Share Warrant Price
between or among shares or such classes of capital stock or Ordinary Shares and
other capital stock.
-4-
(g) In
case any event shall occur as to which the other provisions of this Section
3 are not strictly applicable but as to which the failure to make any
adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles of the
adjustments set forth in this Section
3 then, in each such case, the Board of Directors of the Company shall in
good faith determine the adjustment, if any, on a basis consistent with the
essential intent and principles established herein, necessary to preserve the
purchase rights represented by the Warrants. Upon such determination, the
Company will promptly mail a copy thereof to the Holder of this Warrant and
shall make the adjustments described therein.
4. Fully
Paid Stock; Taxes. The Ordinary Shares represented by each and
every certificate for Warrant Shares delivered on the exercise of this Warrant
shall, subject to compliance by the Holder with the terms hereof, at the time of
such delivery, be duly authorized, validly issued and outstanding, fully paid
and nonassessable, free from
all taxes, liens and charges in respect of the issue thereof and not
subject to preemptive rights or rights of first refusal imposed by any agreement
to which the Company is a party, and the Company will take all such actions as
may be necessary to assure that the par value, if any, per share of the Ordinary
Shares is at all times equal to or less than the then Per Share Warrant
Price. The Company shall pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any Warrant Share or any certificate thereof to the
extent required because of the issuance by the Company of such
security.
5. Registration
Under Act. The Holder shall have the right to participate in
the registration rights granted to purchasers of the Units (as defined in the
Subscription Agreement) pursuant to Section VII of the Subscription
Agreement. By acceptance of this Warrant, the Holder agrees to comply
with the provisions in Section VII of the Subscription
Agreement.
6.
Investment
Intent; Limited Transferability.
(a) By
accepting this Warrant, the Holder represents to the Company that it understands
that this Warrant and any securities obtainable upon exercise of this Warrant
have not been registered for sale under Federal or state securities laws and are
being offered and sold to the Holder pursuant to one or more exemptions from the
registration requirements of such securities laws, as more
fully described in each of the Memorandum and Subscription Agreement, each of
which the Holder represents and warrants that Holder has carefully
reviewed. In the absence of an effective registration of such
securities or an exemption therefrom, any certificates for such securities shall
bear the legend set forth on the first page hereof. The Holder
understands that it must bear the economic risk of its investment in this
Warrant and hold any securities obtainable upon exercise of this Warrant for an
indefinite period of time, as this Warrant and such securities have not been
registered under Federal or state securities laws and therefore cannot be sold
unless subsequently registered under such laws, unless an exemption from such
registration is available. The Holder further represents to the
Company, by accepting this Warrant, that it has full power and authority to
accept this Warrant and make the representations set forth
herein.
(b) The
Holder, by its acceptance of this Warrant, represents to the Company that it is
acquiring this Warrant and will acquire any securities obtainable upon exercise
of this Warrant for its own account for investment (and not
as a nominee or agent) and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities
Act. The Holder agrees, by acceptance of this Warrant, that this
Warrant and any such securities will not be sold or otherwise transferred unless
(i) a registration statement with respect to such transfer is effective under
the Securities Act and any applicable state securities laws or (ii) such sale or
transfer is made pursuant to one or more exemptions from the Securities
Act.
-5-
(c) In
addition to the limitations set forth in Section
1 and in accordance with the legend on the first page hereof, this
Warrant may not be sold, transferred, assigned or hypothecated by the Holder
in
the absence of (i) an effective registration statement under the Securities Act
as to this Warrant or such Warrant Shares and registration or qualification of
this Warrant or such Warrant Shares under any applicable U.S. federal or state
securities law then in effect or (ii) an opinion of counsel, reasonably
satisfactory to the Company, that such registration and qualification are not
required. Notwithstanding the foregoing, the restrictions imposed
upon the transferability of any of its rights to acquire Ordinary Shares or
Ordinary Shares issuable on the exercise of such rights do not apply to
transfers from the beneficial owner of any of the aforementioned securities to
its nominee or from such nominee to its beneficial owner, and shall terminate as
to any particular Ordinary Share when (i) such security shall have been
effectively registered under the Securities Act and sold by the holder thereof
in accordance with such registration or (ii) such security shall have been sold
without registration in compliance with Rule 144 under the Securities Act, or
(iii) a letter shall have been issued to the Holder at its request by the staff
of the Securities and Exchange Commission or a ruling shall have been
issued to the Holder at its request by the Securities and Exchange Commission
stating that no action shall be recommended by such staff or taken by the
Securities and Exchange Commission, as the case may be, if such security is
transferred without registration under the Securities Act in accordance with the
conditions set forth in such letter or ruling and such letter or ruling
specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall
terminate, as hereinabove provided, the Holder or holder of an Ordinary Share
then outstanding as to which such restrictions have terminated shall be entitled
to receive from the Company, without expense to such holder, one or more new
certificates for the Warrant or for such Ordinary Shares not bearing any
restrictive legend. The Company may treat the registered Holder of this
Warrant as it appears on the Company’s books at any time as the Holder for all
purposes. The Company shall permit any Holder of a Warrant or its
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
Holders of Warrant. All Warrants issued upon the transfer or
assignment of this Warrant will be dated the same date as this Warrant, and all
rights of the holder thereof shall be identical to those of the Holder unless,
in each case, otherwise prohibited by applicable law.
(d) The
Holder has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the Warrants or the exercise of the
Warrants; and (ii) the opportunity to request such additional information which
the Company possesses or can acquire without unreasonable effort or
expense.
(e) The
Holder did not (i) receive or review any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or broadcast
over television or radio, whether closed circuit, or generally available; or
(ii) attend any seminar, meeting or investor or other conference whose attendees
were, to such Holder’s knowledge, invited by any general solicitation or general
advertising.
(f) The
Holder is an “accredited investor” within the meaning of Regulation D or a “non
United States person” (as defined in the Subscription Agreement) under
Regulation S under the Securities Act. Such Holder is acquiring the
Warrants for its own account and not with a present view to, or for sale in
connection with, any distribution thereof in violation of the registration
requirements of the Securities Act, without prejudice, however, to such Holder’s
right, subject to the provisions of the Subscription Agreement and this Warrant,
at all times to sell or otherwise dispose of all or any part of such Warrants
and Warrant Shares.
-6-
(g) Either
by reason of such Holder’s business or financial experience or the business or
financial experience of its professional advisors (who are unaffiliated with and
who are not compensated by the Company or any affiliate, finder or selling agent
of the Company, directly or indirectly), such Holder has the capacity to protect
such Holder’s interests in connection with the transactions contemplated by this
Warrant and the Subscription Agreement. The Holder, by its acceptance
of this Warrant, represents to the Company that it is able to fend for itself,
can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in this Warrant. Holder also
represents it has not been organized for the purpose of acquiring this
Warrant.
7.
Representations
and Warranties of the Company.
This
Warrant has been entered into by the Holder in reliance upon the following
representations and covenants of the Company:
(a) Authorization. The
Warrant has been duly executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable
remedies.
(b) Valid
Issuance. The
Warrant Stock is duly authorized and reserved for issuance, and when issued,
sold and delivered in accordance with the terms of this Warrant will be duly and
validly issued, fully paid and nonassessable.
(c) No
Conflict. The
execution and delivery of this Warrant do not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, breach or default (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit, under, any provision of the
Certificate of Incorporation or Memorandum and Articles of Association, as
amended from time to time, of the Company, any material agreement of the Company
filed with the Commission, or any order, decree, statute, law, ordinance, rule,
listing requirement or regulation applicable to the Company, its properties or
assets, which conflict, violation, default or right would have a material
adverse effect on the business, properties, prospects, financial condition or
operations of the Company.
8.
Loss,
etc., of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Company, if lost,
stolen or destroyed, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver to the Holder a new Warrant of
like date, tenor and denomination.
9.
Warrant
Holder Not Stockholder. This Warrant does not confer upon the
Holder any right to vote on or consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, nor any other rights
or liabilities as a stockholder, prior to the exercise hereof; this Warrant
does, however, require certain notices to Holders as set forth
herein.
10.
Communication. No
notice or other communication under this Warrant shall be effective or deemed to
have been given unless, the same is in writing and is mailed by first-class
mail, postage prepaid, or via recognized overnight courier with confirmed
receipt, addressed to:
(a) the
Company at Emerald Acquisition Corporation, Xx. 00 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxx, Xxxxx, Attn: Chief Executive Officer, or other such address as the
Company has designated in writing to the Holder; or
(b) the
Holder at the address last furnished to the Company in writing by the
Holder.
-7-
11.
Headings. The
headings of this Warrant have been inserted as a matter of convenience and shall
not affect the construction hereof.
12.
Applicable
Law. This Warrant will be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
principles of conflict of laws. The Holder hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement
or the transactions contemplated hereby or thereby.
13.
Amendment,
Waiver, etc. Except as expressly provided herein, neither this
Warrant nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that any provision hereof may be amended, waived, discharged or
terminated upon the written consent of the Company and the Majority of the
Holders and such amendment, waiver, discharge or termination shall be effective
with respect to the Company and all Holders.
-8-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by the
undersigned duly authorized officer, this 22nd day of
October, 2009.
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EMERALD ACQUISITION CORPORATION
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By:
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/s/
Zhide Jiang
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Name:
Zhide Jiang
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Title:
Chief Executive
Officer
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FORM
OF EXERCISE NOTICE
(To
be executed by the Holder to exercise the right to
purchase
Ordinary Shares under the foregoing Warrant)
Ladies
and Gentlemen:
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(1)
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The
undersigned is the Holder of Warrant No. __________ (the “Warrant”)
issued by Emerald Acquisition Corporation, a Cayman Islands corporation
(the “Company”). Capitalized
terms used herein and not otherwise defined herein have the respective
meanings set forth in the Warrant.
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(2)
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The
undersigned hereby exercises its right to purchase __________ Warrant
Shares pursuant to the Warrant.
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(3)
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The
Holder shall pay the sum of $_______ to the Company in accordance with the
terms of the Warrant.
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(4)
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Pursuant
to this Exercise Notice, the Company shall deliver to the Holder
_____________ Warrant Shares in accordance with the terms of the
Warrant.
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Dated:
_______________, ________
Name of
Holder:________________________
By:___________________________________
Name:
________________________________
Title:
_________________________________
(Signature
must conform in all respects to name of Holder as specified on the face of the
Warrant)
ASSIGNMENT
FOR VALUE
RECEIVED _______________ (“Assignor”)
hereby sells, assigns and transfers unto ____________________ (“Transferee”)
the foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________, attorney, to transfer said Warrant
on the books of Emerald Acquisition Corporation. By acceptance of the
foregoing Warrant, Transferee shall become a Holder under said Warrant and
subject to the rights, obligations and representations of Holder set forth in
said Warrant.
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ASSIGNOR:
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Dated:
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Signature:
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Address:
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TRANSFEREE:
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Dated:
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Signature:
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Address:
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PARTIAL
ASSIGNMENT
FOR VALUE
RECEIVED _______________ (“Assignor”)
hereby assigns and transfers unto ____________________ (“Transferee”)
the right to purchase _______ Ordinary Shares, par value $0.001 per share, of
Emerald Acquisition Corporation covered by the foregoing Warrant, and a
proportionate part of said Warrant and the rights evidenced thereby, and does
irrevocably constitute and appoint ____________________, attorney, to transfer
such part of said Warrant on the books of Emerald Acquisition
Corporation. By acceptance of the proportionate part of foregoing
Warrant, Transferee shall become a Holder under said proportionate part of said
Warrant and subject to the rights, obligations and representations of Holder set
forth in said Warrant.
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ASSIGNOR:
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Dated:
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Signature:
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Address:
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TRANSFEREE:
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Dated:
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Signature:
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Address:
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