WARRANT AGREEMENT
This
Warrant Agreement (this “Warrant Agreement”) dated as of ___________, 2008, by
and between Spring Creek Acquisition Corp. a Cayman Islands company with offices
at 00X, Xxxx#0000, Xxxxxxx Int’l Building, Xx.00, Xxxxx XxXxxXxx Xxxx, Xxx Xxxx
Xxxxxxxx, Xxxxxxx 000000, People’s Republic of China (“Company”), and American
Stock Transfer & Trust Company, with offices at 00 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, as warrant agent ( the “Warrant Agent”).
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) of Units, each
comprised of one of the Company’s Ordinary Shares (as hereinafter defined) and
one Warrant (as hereinafter defined) (the “Units”) and, in connection therewith,
has determined to issue and deliver (i) up to 5,175,000 Warrants (“Public
Warrants”) to the public investors, (ii) 1,430,000 Warrants to the Company’s
founding shareholders (the “Placement Warrants”) in a concurrent private
placement pursuant to that certain Subscription Agreement dated
________________, 2008 (the “Subscription Agreement”) and (iii) 450,000 Warrants
to EarlyBird Capital, Inc. the representative (the “Representative”) of the
underwriters (the “Underwriters”) with respect to the Public Offering, or to the
Representative’s designees (“Representative’s Warrants” and, together with the
Public Warrants and the Placement Warrants, the “Warrants”), each of such
Warrants evidencing the right of the holder thereof to purchase one ordinary
share, par value $.001 per share, of the Company (“Ordinary Share”) for $5.00;
and
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a
Registration Statement, No. 333-147284 on Form S-1 (as may be amended from
time
to time) (“Registration Statement”) for the registration under the Securities
Act of 1933, as amended (“Act”) of, among other securities, the Public Warrants
and the Representative’s Warrants and the Ordinary Share issuable upon exercise
of the Public Warrants and the Representative’s Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption, exercise and cancellation of
the
Warrants; and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent for the Company for
the Warrants, and the Warrant Agent hereby accepts such appointment and agrees
to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2. Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only. Each Public Warrant, Placement
Warrant and Representative Warrant shall be in substantially the forms,
respectively, of Exhibit
X-0,
Xxxxxxx
X-0 and
Exhibit
A-3
hereto,
the provisions of which are incorporated herein, and shall be signed by, or
bear
the facsimile signature of, the Chairman of the Board or Chief Executive Officer
and Chief Financial Officer, Treasurer, Secretary or Assistant Secretary of
the
Company and shall bear a facsimile of the Company’s seal. In the event the
person whose facsimile signature has been placed upon any Warrant shall have
ceased to serve in the capacity in which such person signed the Warrant before
such Warrant is issued, it may be issued with the same effect as if he or she
had not ceased to be such at the date of issuance.
2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant Register”) for the registration of
original issuance and the registration of transfer of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
by
the Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“registered holder”), as the absolute
owner of such Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant Certificate made
by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
2.4 Detachability
of Warrants.
The
Ordinary Shares and Warrants comprising the Units will not be separately
transferable until the 90th
day
after the Registration Statement is declared effective by the Staff of the
SEC
unless the Representative informs the Company of its determination (based on
its
assessment of the relative strengths of the securities markets and small
capitalization companies in general and the trading pattern of and demand for
the Company’s securities in particular) that an earlier separate trading date is
acceptable. In no event will the Representative allow separate trading of the
securities comprising the Units until the Company files a Current Report on
Form
8-K, that includes an audited balance sheet reflecting the receipt by the
Company of the gross proceeds of the Public Offering including the proceeds
received by the Company from the exercise of the Underwriters’ Over-Allotment
Option, if the Over-Allotment Option is exercised prior to the filing of the
Form 8-K. For purposes of this Warrant Agreement, the term “Over Allotment
Option” shall mean the option granted by the Company to the Underwriters, and
exercisable until ________, 2008, to purchase from the Company at a price of
$8.00 per Unit less underwriting discounts, up to an aggregate of 675,000 Units
for the sole purpose of covering over-allotments, if any, in connection with
the
Public Offering.
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3. Terms
and Exercise of Warrants
3.1 Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of Ordinary Shares stated
therein, at the price of $5.00 per whole share, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this Section 3.1.
The
term “Warrant Price” as used in this Warrant Agreement refers to the price at
which each Ordinary Share may be purchased at the time a Warrant is exercised.
The Company in its sole discretion may lower the Warrant Price at any time
prior
to the Expiration Date (as hereinafter defined).
3.2 Duration
of Warrants.
Subject
to compliance with the terms set forth in Section 3.3 hereof, a Warrant may
be
exercised only during the period (“Exercise Period”) commencing six months after
the date of consummation by the Company of a stock exchange, asset acquisition
or other similar business combination with, or controlling, through contractual
arrangements of, one or more Target Businesses (as hereinafter defined) having
a
fair market value of at least 80% of the Company’s net assets at the time of
such acquisition (a “Business Combination”) and terminating at 5:00 p.m., New
York City time on the earlier to occur of (x) _____________, 2013 (the
“Expiration Date”) or (y) the Redemption Date (as hereinafter defined). Except
with respect to the right, if applicable, to receive the Redemption Price (as
hereinafter defined), in the case of Warrants called for redemption in
accordance with Section 6 hereof each Warrant not exercised on or before the
earlier of the Redemption Date or the Expiration Date shall become void, and
all
rights thereunder and all rights in respect thereof under this Agreement shall
cease at the close of business on the earlier of the Redemption Date or the
Expiration Date. The Company in its sole discretion may extend the duration
of
the Warrants by delaying the Expiration Date. Notwithstanding the foregoing,
a
Warrant may expire unexercised regardless of whether a registration statement
covering the sale of the Ordinary Shares underlying the Warrants is effective.
For purposes of this Warrant Agreement, the term “Target Business” shall mean an
operating business with its principal operations in Greater China (as described
in the Registration Statement).
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrants and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or, if
applicable, at the office of its successor as Warrant Agent, in the Borough
of
Manhattan, City and State of New York, with the subscription form, as set forth
in the Warrants, duly executed, and by paying in full, the Warrant Price for
each full Ordinary Share as to which the Warrant is exercised and any and all
applicable taxes due in connection with the exercise of the Warrant, the
exchange of the Warrant for Ordinary Shares, and the issuance of the Ordinary
Share. Payment of the Warrant Price shall be made either (i) in cash or by
certified or official bank check payable to the order of the Company, (ii)
in
the
event of redemption pursuant to Section 6 hereof in which the Company’s
management has elected to force all holders of Warrants to exercise such
Warrants on a “cashless basis,” by surrendering the Warrants for that number of
Ordinary Shares equal to the quotient obtained by dividing (x) the product
of
the number of Ordinary Shares underlying the Warrants, multiplied by the
difference between the Warrant Price and the “Fair Market Value” (defined below)
by (y) the Fair Market Value or
(iii)
in the case of the Placement Warrants, if the Company has previously called
the
Warrants for redemption pursuant to Article 6 and the applicable Placement
Warrants are owned by one of the officers or directors of the Company and/or
their respective affiliates, on a cashless basis by surrendering Warrants held
by such holder to the Company. Upon the surrender of Warrants to the Company
in
payment of the Warrant Price pursuant to a cashless exercise, a holder shall
be
entitled to receive therefor that number of Ordinary Shares otherwise issuable
upon exercise of such holder’s Warrants less that number of Ordinary Shares
having a Fair Market Value (as hereinafter defined) equal to the aggregate
Warrant Price that would otherwise have been paid by the holder of such
Warrants. For purposes of this Section 3.3.1, the term “Fair Market Value” shall
mean the average reported last sales price of the Ordinary Shares for the last
10 trading days ending on the third business day prior to the date on which
notice of redemption of the Warrants is given by the Company.
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3.3.2 Issuance
of Certificates.
As soon
as practicable after the exercise of any Warrant and, to the extent applicable,
the clearance of the funds in payment of the Warrant Price, the Company shall
issue to the registered holder of such Warrant a certificate or certificates
for
the number of full Ordinary Shares to which he, she or it is entitled,
registered in such name or names as may be directed by him, her or it, and
if
such Warrant shall not have been exercised in full, a new countersigned Warrant
for the number of shares as to which such Warrant shall not have been exercised.
Notwithstanding the foregoing, the Company shall not be obligated to deliver
any
securities pursuant to the exercise of a Warrant unless (i) a registration
statement under the Act with respect to the Ordinary Shares issuable upon the
exercise of such Warrant is effective, or (ii) in the opinion of counsel to
the
Company, the exercise of such Warrant is exempt from the registration
requirements of the Act and the Ordinary Shares issuable upon exercise of such
Warrant are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the registered
holder(s) thereof reside. Warrants may not be exercised by, or securities issued
to, any registered holder in any state in which such exercise or issuance would
be unlawful. In no event will the registered holder of the Warrant be entitled
to receive a net-cash settlement, securities or other consideration in lieu
of
physical settlement in Ordinary Shares, regardless of whether the Ordinary
Shares underlying the Warrants are registered pursuant to an effective
registration statement.
3.3.3 Valid
Issuance.
All
Ordinary Shares issued upon the proper exercise of a Warrant in conformity
with
this Agreement shall be validly issued, fully paid and
nonassessable.
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3.3.4 Date
of Issuance.
Each
person in whose name any such certificate for Ordinary Shares is issued shall
for all purposes be deemed to have become the holder of record of such shares
on
the date on which the Warrant was surrendered and payment of the Warrant Price
was made, irrespective of the date of delivery of such certificate, except
that,
if the date of such surrender and payment is a date when the stock transfer
books of the Company are closed, such person shall be deemed to have become
the
holder of such shares at the close of business on the next succeeding date
on
which the stock transfer books are open.
4. Adjustments.
4.1 Stock
Dividends/Split Ups.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding Ordinary Shares is increased by a stock dividend payable
in Ordinary Shares, or by a split up or reclassification of shares Ordinary
Shares, or other similar event, then, on the effective date of such stock
dividend, split up, reclassification or similar event, the number of Ordinary
Shares issuable on exercise of each Warrant shall be increased in proportion
to
such increase in outstanding Ordinary Shares.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding Ordinary Shares is decreased by a consolidation, combination,
reverse stock split or reclassification of Ordinary Shares or other similar
event, then, on the effective date of such consolidation, combination, reverse
stock split, reclassification or similar event, the number of Ordinary Shares
issuable on exercise of each Warrant shall be decreased in proportion to such
decrease in outstanding Ordinary Shares.
4.3 Adjustments
in Warrant Price.
Whenever the number of Ordinary Shares purchasable upon the exercise of the
Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of Ordinary Shares purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (y) the denominator of which
shall be the number Ordinary Shares so purchasable immediately
thereafter.
4.4 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding Ordinary Shares
(other than a change covered by Section 4.1 or 4.2 hereof or that solely affects
the par value of such Ordinary Shares), or in the case of any merger or
consolidation of the Company with or into another company (other than a
consolidation or merger in which the Company survives and that does not result
in any reclassification or reorganization of the outstanding Ordinary Shares),
or in the case of any sale or conveyance to another company or entity of the
assets or other property of the Company as an entirety or substantially as
an
entirety in connection with which the Company is dissolved, the Warrant holders
shall thereafter have the right to purchase and receive, upon the basis and
upon
the terms and conditions specified in the Warrants and in lieu of the Ordinary
Shares of the Company immediately theretofore purchasable and receivable upon
the exercise of the rights represented thereby, the kind and amount of shares
of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, that the Warrant holder would have received
if such Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a change in
Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions
of
this Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
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4.5 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable on
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the Warrant Register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the
holder of any Warrant would be entitled, upon the exercise of such Warrant,
to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up to the nearest whole number Ordinary Shares to be issued to the Warrant
holder.
4.7 Forms
of Warrants.
The
forms of the Public Warrants, the Placement Warrants and the Representatives
Warrants need not be changed because of any adjustment pursuant to this Section
4, and Warrants issued after such adjustment may state the same Warrant Price
and the same number of shares as is stated in the Warrants initially issued
pursuant to this Agreement. However, the Company may at any time in its sole
discretion make any change in the form of any Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer
and Exchange of Warrants.
5.1 Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instruction. Upon any such transfer, a new Warrant representing
an
equal aggregate number of Warrants shall be issued and the old Warrant shall
be
cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered
by
the Warrant Agent to the Company from time to time upon request.
5.2 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided,
however,
that in
the event that a Warrant surrendered for transfer bears a restrictive legend,
the Warrant Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion of counsel
for
the Company stating that such transfer may be made and indicating whether the
new Warrants must also bear a restrictive legend.
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5.3 Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6. Redemption.
6.1 Redemption.
Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, with the prior consent of the
Representative, at any time while they are exercisable and prior to their
expiration, at the office of the Warrant Agent, upon the notice referred to
in
Section 6.2, at the price of $.01 per Warrant (the “Redemption Price”), provided
that the last sales price of the Ordinary Shares has been equal to or greater
than $11.50 per share, on each of twenty (20) trading days within any thirty
(30) trading day period ending on the third business day prior to the date
on
which notice of redemption is given. Notwithstanding the foregoing, the
registration statement with respect to the Ordinary Shares for which the
Warrants are exercisable must be current and effective in order for the Company
to exercise its redemption rights pursuant to this Section 6. The provisions
of
this Section 6.1 may not be modified, amended or deleted without the prior
written consent of the Representative.
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date and time for the redemption (the “Redemption Date”). Notice of
redemption shall be mailed by first class mail, postage prepaid, by the Company
not less than 30 days prior to the Redemption Date to the registered holders
of
the Warrants to be redeemed at their last addresses as they shall appear on
the
Warrant Register. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Warrant Agreement
at any time after notice of redemption shall have been given by the Company
pursuant to Section 6.2 hereof and prior to the Redemption Date. In
the
event the Company determines to require all holders of Warrants to exercise
their Warrants on a “cashless basis” pursuant to Section 3, the notice of
redemption will contain the information necessary to calculate the number of
Ordinary Shares to be received upon exercise of the Warrants, including the
“Fair Market Value” in such case. On
and
after the Redemption Date, the record holder of the Warrants shall have no
further rights except to receive, upon surrender of the Warrants, the Redemption
Price.
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6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this Section
6
apply only to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the
Warrants issued upon such exercise provided that the criteria for redemption
are
met, including the opportunity of the Warrant holder to exercise prior to
redemption pursuant to Section 6.3. The provisions of this Section 6.4 may
not
be modified, amended or deleted without the prior written consent of the
Representative.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and date
as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3 Reservation
of Ordinary Shares.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued Ordinary Shares that will be sufficient to permit the exercise
in
full of all outstanding Warrants issued pursuant to this Warrant
Agreement.
7.4 Registration
of Ordinary Shares.
The
Company agrees that it shall use its best efforts to file with the SEC a
post-effective amendment to the Registration Statement, or a new registration
statement, for the registration, under the Act, of the Ordinary Shares issuable
upon exercise of the Warrants, and it shall take such action as is necessary
to
qualify for sale, in those states in which the Warrants were initially offered
by the Company, the Ordinary Shares issuable upon exercise of the Warrants.
In
either case, the Company will use its best efforts to cause the same to become
effective on or prior to the commencement of the Exercise Period and to maintain
the effectiveness of such registration statement until the earlier of the
Redemption Date or the Expiration Date in accordance with the provisions of
this
Warrant Agreement. In addition, the Company agrees to use its commercially
reasonable best efforts to register such securities under the blue sky laws
of
the states of residence of exercising warrant holders, if permitted by the
blue
sky laws of such jurisdictions, in the event that an exemption is not available.
Notwithstanding the foregoing, a Warrant may expire worthless regardless of
whether a registration statement is current under the Act with respect to the
Ordinary Shares issuable upon exercise of the Warrants. In no event will the
registered holder of a Warrant be entitled to receive a net-cash settlement,
securities or other consideration in lieu of physical settlement in Ordinary
Shares, regardless of whether the Company complies with this Section 7.4. The
provisions of this Section 7.4 may not be modified, amended or deleted without
the prior written consent of the Representative.
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8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of Ordinary Shares upon the exercise of Warrants, but the Company
shall
not be obligated to pay any transfer taxes in respect of the Warrants or such
shares.
8.2 Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a company having its principal office in the Borough
of
Manhattan, City and State of New York, and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant Agent
shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent, the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2 Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Ordinary Shares not later than the effective date of any such
appointment.
8.2.3 Merger
or Consolidation of Warrant Agent.
Any
company into which the Warrant Agent may be merged or with which it may be
consolidated or any company resulting from any merger or consolidation to which
the Warrant Agent shall be a party shall be the successor Warrant Agent under
this Warrant Agreement without any further act.
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8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder as set forth on Exhibit B
hereto,
and will reimburse the Warrant Agent upon demand for all expenditures that
the
Warrant Agent may reasonably incur in the execution of its duties
hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Warrant
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chief Executive Officer, Chairman
of
the Board or Chief Financial Officer of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action taken
or
suffered in good faith by it pursuant to the provisions of this Warrant
Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Warrant Agreement except as a result of the Warrant
Agent’s negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Warrant Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Warrant
Agreement or in any Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible for the manner,
method, or amount of any such adjustment or the ascertaining of the existence
of
facts that would require any such adjustment; nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any Ordinary Shares to be issued pursuant to this Warrant
Agreement or any Warrant or as to whether any Ordinary Shares will when issued
be valid and fully paid and nonassessable.
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Warrant Agreement
and agrees to perform the same upon the terms and conditions herein set forth
and among other things, shall account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase of the Company’s Ordinary
Shares through the exercise of Warrants.
10
9. Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Warrant Agreement by or for the benefit of
the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
9.2 Notices.
Any
notice or other communication required or which may be given hereunder shall
be
in writing and either be delivered personally or by private national courier
service, or be mailed, certified or registered mail, return receipt requested,
postage prepaid, and shall be deemed given when so delivered personally or,
if
sent by private national courier service, on the next business day after
delivery to the courier, or, if mailed, two business days after the date of
mailing, as follows:
Xxxxxx
Xxxxx Xxxxxxxxxxx Xxxx.
00X,
Xxxx#0000
Fortune
Int’l Building, Xx.00
Xxxxx
XxXxxXxx Xxxx,
Xxx
Xxxx
Xxxxxxxx Xxxxxxx 000000
People’s
Republic of China
Attn:
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the holder of any Warrant or by the Company to or on the Warrant Agent
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service five days after deposit
of such notice, postage prepaid, addressed (until another address is filed
in
writing by the Warrant Agent with the Company), as follows:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
with
a
copy in each case to:
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
X. Xxxxxxxx, Esq.
and
EarlyBird
Capital, Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Chairman
11
and
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
9.3 Applicable
law.
The
validity, interpretation, and performance of this Warrant Agreement and of
the
Warrants shall be governed in all respects by the laws of the State of New
York,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way
to
this Warrant Agreement shall be brought and enforced in the courts of the State
of New York or the United States District Court for the Southern District of
New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the
Company in any action, proceeding or claim.
9.4 Persons
Having Rights under this Warrant Agreement.
Nothing
in this Warrant Agreement expressed and nothing that may be implied from any
of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or company other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 6.1, 6.4, 7.4, 9.2
and
9.8 hereof, the Representative, any right, remedy, or claim under or by reason
of this Warrant Agreement or of any covenant, condition, stipulation, promise,
or agreement hereof. The Representative shall be deemed to be a third-party
beneficiary of this Warrant Agreement with respect to Sections 6.1, 6.4, 7.4,
9.2 and 9.8 hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto (and the Representative with respect
to
the Sections 6.1, 6.4, 7.4, 9.2 and 9.8 hereof) and their successors and assigns
and of the registered holders of the Warrants.
9.5 Examination
of the Warrant Agreement.
A copy
of this Warrant Agreement shall be available at all reasonable times at the
office of the Warrant Agent in the Borough of Manhattan, City and State of
New
York, for inspection by the registered holder of any Warrant. The Warrant Agent
may require any such holder to submit his Warrant for inspection by
it.
9.6 Counterparts.
This
Warrant Agreement may be executed in any number of counterparts and each of
such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation
thereof.
12
9.8 Amendments.
This
Warrant Agreement may be amended by the parties hereto without the consent
of
any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Warrant Agreement as the parties may deem necessary or desirable
and
that the parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of each of the Representative and the registered holders of
a
majority of the then outstanding Warrants. Notwithstanding the foregoing, the
Company may lower the Warrant Price or extend the duration of the Exercise
Period in accordance with Sections 3.1 and 3.2, respectively, without such
consent.
9.9 Severability.
This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of
this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
13
IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Attest:
|
||
By:
|
|
|
Name:
|
||
|
Title:
|
Attest:
|
AMERICAN
STOCK TRANSFER & TRUST COMPANY
|
|
By:
|
|
|
Name:
|
||
|
Title:
|
14
EXHIBIT
A-1
SPECIMEN
WARRANT CERTIFICATE FOR
PUBLIC
WARRANT
NUMBER
__________-
|
WARRANTS
|
(SEE
REVERSE SIDE FOR LEGEND)
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M.
NEW
YORK
CITY TIME, __________, 2013
CUSIP
WARRANT
THIS
CERTIFIES THAT, for value received
is
the
registered holder of a Warrant or Warrants expiring _________, 2013 (the
“Warrant”) to purchase one fully paid and non-assessable Ordinary Share, par
value $.001 per share (“Shares”), of SPRING CREEK ACQUISITION CORP., a Cayman
Islands company (the “Company”), for each Warrant evidenced by this Warrant
Certificate. Subject to the conditions set forth herein and in the Warrant
Agreement dated as of ______________, 2008 by and between the Company and the
Warrant Agent (the “Warrant Agreement”). The Warrant entitles the holder thereof
to purchase from the Company, commencing on the later of (i) the Company’s
completion of a Business Combination with a Target Business or (ii)
_____________, 2009, and terminating at 5:00 p.m., New York City time on the
earlier to occur of (x) _____________, 2013 (the “Expiration Date”) or (y) the
Redemption Date, such number of Shares of the Company at the price of $5.00
per
share, upon surrender of this Warrant Certificate and payment of the Warrant
Price at the office or agency of the Warrant Agent, American Stock Transfer
& Trust Company. Payment of the Warrant Price may be made at the option of
the holder of the Warrant in cash or by certified or official bank check payable
to the order of the Company. The Warrant Agreement provides that upon the
occurrence of certain events the Warrant Price and the number of Warrant Shares
purchasable hereunder, set forth on the face hereof, may, subject to certain
conditions, be adjusted. The term Warrant Price as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased
at
the time the Warrant is exercised. Capitalized terms used in this Warrant
Certificate without definition shall have the respective meanings ascribed
to
such terms in the Warrant Agreement.
No
fraction of a Share will be issued upon any exercise of a Warrant. If, upon
exercise of a Warrant, a holder would be entitled to receive a fractional
interest in a Share, the Company will, upon exercise, round up to the nearest
whole number the number of ordinary shares to be issued to the warrant
holder.
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent
by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the
aggregate a like number of Warrants.
A-1-1
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all
other
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
The
Company reserves the right to redeem all of the outstanding Warrants, with
the
prior consent of EarlyBirdCapital, Inc., at any time while they are exercisable
and prior to the Expiration Date upon a notice of redemption in writing to
the
holders of record of the Warrants, giving no less than 30 days’ notice of such
redemption if the last sale price of the Shares has been equal to or greater
than $11.50 per Share on each of 20 trading days within a 30 trading day period
ending on the third business day prior to the date on which notice of such
redemption is given. The redemption price of the Warrants is to be $.01 per
Warrant. Any Warrant either not exercised or tendered back to the Company by
the
Redemption Date shall be canceled on the books of the Company and have no
further value except for the $.01 redemption price.
A-1-2
This
Warrant Certificate shall not be valid or obligatory for any purpose until
it
shall have been countersigned by the Warrant Agent.
|
|
By:
|
|
Title:
|
[SEAL]
Attest:
|
|
Secretary
|
DATED:
Countersigned:
|
|
|
|
Authorized
Signatory
|
A-1-3
SUBSCRIPTION
FORM
To
Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise ______________
Warrants represented by this Warrant Certificate, and to purchase the Ordinary
Shares issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
|
|||
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
|||
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
|
|||
and
be delivered to
|
|||
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
|
|||
and,
if such number of Warrants shall not be all the Warrants evidenced
by this
Warrant Certificate, that a new Warrant Certificate for the balance
of
such Warrants be registered in the name of, and delivered to, the
Registered Holder at the address stated below:
|
|||
Dated:
|
|||
(SIGNATURE)
|
|||
(ADDRESS)
|
|||
(TAX
IDENTIFICATION NUMBER)
|
A-1-4
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value Received,
|
hereby
sell, assign, and transfer unto
|
||||
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
|||||
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
|
|||||
and
be delivered to
|
|||||
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
|
|||||
of
the Warrants represented by this Warrant Certificate, and
hereby
|
|||||
irrevocably
constitute and appoint
|
|||||
Attorney
to transfer this Warrant Certificate on the books of the Company,
with
full power of substitution in the premises.
|
|||||
Dated:
|
|
||||
(SIGNATURE)
|
THE
SIGNATURE MUST CORRESPOND WITH THE NAME WRITTEN UPON THE FACE OF THE WITHIN
WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR
ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION PURSUANT TO S.E.C. RULE 17Ad-15.
X-0-0
XXXXXXX
X-0
SPECIMEN
WARRANT CERTIFICATE FOR
PLACEMENT
WARRANT
NUMBER
_________-
|
WARRANTS
|
(SEE
REVERSE SIDE FOR LEGENDS)
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M.
NEW
YORK
CITY TIME, April 25, 2013
CUSIP
WARRANT
THIS
CERTIFIES THAT, for value received
is
the
registered holder of a Warrant or Warrants expiring ____________, 2013 (the
“Warrant”) to purchase one fully paid and non-assessable Ordinary Share, par
value $.001 per share (“Shares”), of SPRING CREEK ACQUISITION CORP., a Cayman
Islands company (the “Company”), for each Warrant evidenced by this Warrant
Certificate. Subject to the conditions set forth herein and in the Warrant
Agreement dated as of ______________, 2008 by and between the Company and the
Warrant Agent (the “Warrant Agreement”), the Warrant entitles the holder thereof
to purchase from the Company, commencing on the later of (i) the Company’s
completion of a Business Combination with a Target Business or (ii)
_____________, 2009, and terminating at 5:00 p.m., New York City time on the
earlier to occur of (x) _____________, 2013 (the “Expiration Date”) or (y) the
Redemption Date, such number of Shares of the Company at the price of $5.00
per
share, upon surrender of this Warrant Certificate and payment of the Warrant
Price at the office or agency of the Warrant Agent, American Stock Transfer
& Trust Company. Payment of the Warrant Price may be made, at the option of
the holder of the Warrant either in cash or by certified or official bank check
payable to the order of the Company or if the Warrants have been called for
redemption by the Company and such warrant is held by an officer or director
of
the Company or any of their respective affiliates, on a cashless basis by
surrendering Warrants held by the holder to the Company. The Warrant Agreement
provides that upon the occurrence of certain events the Warrant Price and the
number of Warrant Shares purchasable hereunder, set forth on the face hereof,
may, subject to certain conditions, be adjusted. The term Warrant Price as
used
in this Warrant Certificate refers to the price per Share at which Shares may
be
purchased at the time the Warrant is exercised. Capitalized terms used in this
Warrant Certificate without definition shall have the respective meanings
ascribed to such terms in the Warrant Agreement.
No
fraction of a Share will be issued upon any exercise of a Warrant. If, upon
exercise of a Warrant, a holder would be entitled to receive a fractional
interest in a Share, the Company will, upon exercise, round up to the nearest
whole number the number of ordinary shares to be issued to the warrant
holder.
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
A-2-1
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent
by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the
aggregate a like number of Warrants.
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all
other
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
The
Company reserves the right to redeem all of the outstanding Warrants, with
the
prior consent of EarlyBirdCapital, Inc., at any time while they are exercisable
and prior to the Expiration Date upon a notice of redemption in writing to
the
holders of record of the Warrants, giving no less than 30 days’ notice of such
redemption if the last sale price of the Shares has been equal to or greater
than $11.50 per Share on each of 20 trading days within a 30 trading day period
ending on the third business day prior to the date on which notice of such
redemption is given. The redemption price of the Warrants is to be $.01 per
Warrant. Any Warrant either not exercised or tendered back to the Company by
the
Redemption Date shall be canceled on the books of the Company and have no
further value except for the $.01 redemption price. Following the date on which
notice of a redemption of the Warrants has been given, payment of the Warrant
Price may, at the option of the holder thereof, also be made on a cashless
basis
by surrendering Warrants held by such holder to the Company. Upon such surrender
of Warrants to the Company in payment of the Warrant Price, a holder shall
be
entitled to receive therefor that number of Shares otherwise issuable upon
exercise of such holder’s Warrants less the number of Shares having a Fair
Market Value equal to the aggregate Warrant Price that would otherwise have
been
paid by the holder of such Warrants.
A-2-2
This
Warrant Certificate shall not be valid or obligatory for any purpose until
it
shall have been countersigned by the Warrant Agent.
|
|
By:
|
|
Title:
|
[SEAL]
Attest:
|
|
Secretary
|
DATED:
Countersigned:
|
|
|
|
Authorized
Signatory
|
A-2-3
[FORM
OF
REVERSE OF WARRANT CERTIFICATE FOR PLACEMENT WARRANT]
THE
WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE ORDINARY SHARE, PAR VALUE
$.001
(“ORDINARY SHARE”) OF SPRING CREEK ACQUISITION CORP. (THE “COMPANY”) AND ONE
WARRANT. THE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL NOT BE SEPARATELY
TRANSFERABLE UNTIL THE 90TH
DAY
AFTER THE REGISTRATION STATEMENT IS DECLARED EFFECTIVE BY THE STAFF OF THE
SECURITIES AND EXCHANGE COMMISSION (“SEC”) UNLESS EARLYBIRD CAPITAL, INC.
INFORMS THE COMPANY OF ITS DETERMINATION THAT AN EARLIER SEPARATE TRADING DATE
IS ACCEPTABLE AND THE COMPANY HAS MADE CERTAIN PUBLIC FILINGS WITH THE SEC
ON OR
PRIOR TO SUCH EARLIER SEPARATE TRADING DATE.
THE
ORDINARY SHARES OF THE COMPANY FOR WHICH THIS WARRANT IS EXERCISABLE MAY NOT
BE
OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
ACCORDINGLY, NO HOLDER SHALL BE ENTITLED TO EXERCISE SUCH HOLDER’S WARRANTS AT
ANY TIME UNLESS, AT THE TIME OF EXERCISE (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT RELATING TO THE ORDINARY SHARES ISSUABLE UPON THE
EXERCISE OF THIS WARRANT HAS BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE
SEC, AND NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF SUCH REGISTRATION
STATEMENT HAS BEEN ISSUED BY THE SEC, OR (ii) THE ISSUANCE OF SUCH SHARES
IS PERMITTED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE
SECURITIES LAWS. NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF
THE SECURITIES ACT.
THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE WARRANT
AGENT’S RIGHT PRIOR TO ANY OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER
INFORMATION
SATISFACTORY TO EACH OF THEM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE A
CERTIFICATE OF ASSIGNMENT IN THE FORM APPEARING ON THE OTHER SIDE OF THESE
SECURITIES IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT
AGENT.
A-2-4
SUBSCRIPTION
FORM
To
Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise ______________
Warrants represented by this Warrant Certificate, and to purchase the Ordinary
Shares issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
|||
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
|
|||
and
be delivered to
|
|||
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
|
|||
and,
if such number of Warrants shall not be all the Warrants evidenced
by this
Warrant Certificate, that a new Warrant Certificate for the balance
of
such Warrants be registered in the name of, and delivered to, the
Registered Holder at the address stated below:
|
|||
Dated:
|
|||
(SIGNATURE)
|
|||
(ADDRESS)
|
|||
(TAX
IDENTIFICATION NUMBER)
|
A-2-5
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value Received,
|
hereby
sell, assign, and transfer unto
|
||||
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
|
|||||
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
|
|||||
and
be delivered to
|
|||||
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
|
|||||
of
the Warrants represented by this Warrant Certificate, and
hereby
|
|||||
irrevocably
constitute and appoint
|
|||||
Attorney
to transfer this Warrant Certificate on the books of the Company,
with
full power of substitution in the premises.
|
|||||
Dated:
|
|||||
(SIGNATURE)
|
THE
SIGNATURE MUST CORRESPOND WITH THE NAME WRITTEN UPON THE FACE OF THE WITHIN
WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR
ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION PURSUANT TO S.E.C. RULE 17Ad-15.
X-0-0
XXXXXXX
X-0
SPECIMEN
WARRANT CERTIFICATE FOR
REPRESENTATIVE
WARRANT
NUMBER
__________-
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WARRANTS
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(SEE
REVERSE SIDE FOR LEGEND)
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M.
NEW
YORK
CITY TIME, __________, 2013
CUSIP
WARRANT
THIS
CERTIFIES THAT, for value received
is
the
registered holder of a Warrant or Warrants expiring _____________, 2013 (the
“Warrant”) to purchase one fully paid and non-assessable Ordinary Share, par
value $.001 per share (“Shares”), of SPRING CREEK ACQUISITION CORP., a Cayman
Islands company (the “Company”), for each Warrant evidenced by this Warrant
Certificate. Subject to the conditions set forth herein and in the Warrant
Agreement dated as of ____________, 2008 by and between the Company and the
Warrant Agent (the “Warrant Agreement”), the Warrant entitles the holder thereof
to purchase from the Company, commencing on the later of (i) the Company’s
completion of a Business Combination with a Target Business or (ii)
____________, 2008, and terminating at 5:00 p.m., New York City time on the
earlier to occur of (x) _____________, 2013 (the “Expiration Date”) or (y) the
Redemption Date such number of Shares of the Company at the price of $5.00
per
share, upon surrender of this Warrant Certificate and payment of the Warrant
Price at the office or agency of the Warrant Agent, American Stock Transfer
& Trust Company. Payment of the Warrant Price may be made, at the option of
the holder of the Warrant, in cash or by certified or official bank check
payable to the order of the Company. The Warrant Agreement provides that upon
the occurrence of certain events the Warrant Price and the number of Warrant
Shares purchasable hereunder, set forth on the face hereof, may, subject to
certain conditions, be adjusted. The term Warrant Price as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased
at
the time the Warrant is exercised. Capitalized terms used in this Warrant
Certificate without definition shall have the respective meanings ascribed
to
such terms in the Warrant Agreement.
No
fraction of a Share will be issued upon any exercise of a Warrant. If, upon
exercise of a Warrant, a holder would be entitled to receive a fractional
interest in a Share, the Company will, upon exercise, round up to the nearest
whole number the number of ordinary shares to be issued to the warrant
holder.
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent
by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the
aggregate a like number of Warrants.
A-3-1
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all
other
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
The
Company reserves the right to redeem all of the outstanding Warrants, with
the
prior consent of EarlyBirdCapital, Inc., at any time while they are exercisable
and prior to the Expiration Date upon a notice of redemption in writing to
the
holders of record of the Warrants, giving no less than 30 days’ notice of such
redemption if the last sale price of the Shares has been equal to or greater
than $11.50 per Share on each of 20 trading days within a 30 trading day period
ending on the third business day prior to the date on which notice of such
redemption is given. The redemption price of the Warrants is to be $.01 per
Warrant. Any Warrant either not exercised or tendered back to the Company by
the
Redemption Date shall be canceled on the books of the Company and have no
further value except for the $.01 redemption price.
A-3-2
This
Warrant Certificate shall not be valid or obligatory for any purpose until
it
shall have been countersigned by the Warrant Agent.
SPRING
CREEK ACQUISITION CORP.
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By:
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Title:
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[SEAL]
Attest:
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Secretary
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DATED:
Countersigned:
[FORM
OF
REVERSE OF WARRANT CERTIFICATE FOR REPRESENTATIVE WARRANT]
THE
WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE ORDINARY SHARE, PAR VALUE
$.001
(“ORDINARY SHARE”) OF SPRING CREEK ACQUISITION CORP. (THE “COMPANY”) AND ONE
WARRANT. THE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL NOT BE SEPARATELY
TRANSFERABLE UNTIL THE 90TH
DAY
AFTER THE REGISTRATION STATEMENT IS DECLARED EFFECTIVE BY THE STAFF OF THE
SECURITIES AND EXCHANGE COMMISSION (“SEC”) UNLESS EARLYBIRD CAPITAL, INC.
INFORMS THE COMPANY OF ITS DETERMINATION THAT AN EARLIER SEPARATE TRADING DATE
IS ACCEPTABLE AND THE COMPANY HAS MADE CERTAIN PUBLIC FILINGS WITH THE SEC
ON OR
PRIOR TO SUCH EARLIER SEPARATE TRADING DATE.
THE
ORDINARY SHARES OF THE COMPANY FOR WHICH THIS WARRANT IS EXERCISABLE MAY NOT
BE
OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
ACCORDINGLY, NO HOLDER SHALL BE ENTITLED TO EXERCISE SUCH HOLDER’S WARRANTS AT
ANY TIME UNLESS, AT THE TIME OF EXERCISE (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT RELATING TO THE ORDINARY SHARES ISSUABLE UPON THE
EXERCISE OF THIS WARRANT HAS BEEN FILED WITH, AND DECLARED EFFECTIVE BY, THE
SEC, AND NO STOP ORDER SUSPENDING THE EFFECTIVENESS OF SUCH REGISTRATION
STATEMENT HAS BEEN ISSUED BY THE SEC, OR (ii) THE ISSUANCE OF SUCH SHARES
IS PERMITTED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE WARRANT
AGENT’S RIGHT PRIOR TO ANY OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE
A CERTIFICATE OF ASSIGNMENT IN THE FORM APPEARING ON THE OTHER SIDE OF THESE
SECURITIES IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT
AGENT.
A-3-4
SUBSCRIPTION
FORM
To
Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise ______________
Warrants represented by this Warrant Certificate, and to purchase the Ordinary
Shares issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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and
be delivered to
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(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
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and,
if such number of Warrants shall not be all the Warrants evidenced
by this
Warrant Certificate, that a new Warrant Certificate for the balance
of
such Warrants be registered in the name of, and delivered to, the
Registered Holder at the address stated below:
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Dated:
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(SIGNATURE)
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(ADDRESS)
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(TAX
IDENTIFICATION NUMBER)
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A-3-5
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value Received,
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hereby
sell, assign, and transfer unto
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||||
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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|||||
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
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|||||
and
be delivered to
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|||||
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
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|||||
of
the Warrants represented by this Warrant Certificate, and
hereby
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irrevocably
constitute and appoint
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Attorney
to transfer this Warrant Certificate on the books of the Company,
with
full power of substitution in the premises.
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Dated:
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|||||
(SIGNATURE)
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THE
SIGNATURE MUST CORRESPOND WITH THE NAME WRITTEN UPON THE FACE OF THE WITHIN
WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR
ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION PURSUANT TO S.E.C. RULE 17Ad-15.
A-3-6