Contract
Exhibit
10.2
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
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.
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3.2 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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4
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13. 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.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
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NEW
ORIENTAL ENERGY & CHEMICAL CORP.
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By:
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Name: | |||
Title: | |||
[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.
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.
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] | ||||
(Name)
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B-1