Warrant to Purchase a Maximum of [___________] Shares of Common Stock of GC China Turbine Corp. (Void after _____, 2009)
Warrant
No. __
Warrant
to Purchase a Maximum of
[___________]
Shares of Common Stock of
(Void
after _____, 2009)
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT.
THIS
WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH HEREIN.
1. Issuance of
Warrant. This certifies that ________________, or assigns, for
value received, will be entitled to purchase from GC China Turbine, Corp., a
Nevada corporation (the “Company”),
subject to the terms set forth below, a maximum of [_____________] fully paid
and nonassessable shares (subject to adjustment as provided herein) of the
Company’s Common Stock (the “Warrant
Shares”) for cash at a price of $1.00 per share (the “Exercise
Price”) (subject to adjustment as provided herein) at any time or from
time to time up to and including 5:00 p.m. (Eastern Time) (subject to Section 2
below) on ________, 2012 (the “Expiration
Date”) upon surrender to the Company at its principal office (or at such
other location as the Company may advise the Holder in writing) of this Warrant
properly endorsed with the Exercise Notice attached hereto duly filled in and
signed and upon payment in cash, wire transfer or by check of the aggregate
Exercise Price for the number of shares for which this Warrant is being
exercised determined in accordance with the provisions hereof. The
Exercise Price is subject to adjustment as provided in Section 4 of this
Warrant.
2. Exercise
of Warrant
2.1 Exercise,
Issuance of Certificates, Reduction in Number of Warrant
Shares. Subject to Section 2.3 below, this Warrant is
exercisable at the option of the Holder of record hereof on or prior to the
Expiration Date, at any time or from time to time, for all or any part of the
Warrant Shares (but not for a fraction of a share) which may be purchased
hereunder, as that number may be adjusted pursuant to Section 4 of this
Warrant. The Company agrees that the Warrant Shares purchased under
this Warrant shall be and are deemed to be issued to the Holder hereof as the
record owner of such Warrant Shares as of the close of business on the date on
which this Warrant shall have been surrendered, properly endorsed, the completed
and executed Exercise Notice delivered, and payment made for such Warrant
Shares. Certificates for the Warrant Shares so purchased, together
with any other securities or property to which the Holder hereof is entitled
upon such exercise, shall be delivered to the Holder hereof by the Company at
the Company’s expense as soon as practicable after the rights represented by
this Warrant have been so exercised. In case of a purchase of less
than all the Warrant Shares which may be purchased under this Warrant, the
Company shall cancel this Warrant and execute and deliver to the Holder hereof
within a reasonable time a new Warrant of like tenor for the balance of the
Warrant Shares purchasable under the Warrant surrendered upon such
purchase. Each stock certificate so delivered shall be registered in
the name of such Holder.
2.2 Cashless
Exercise. Subject to
Section 2.3 below, the Holder may, in its sole discretion, exercise this Warrant
in whole or in part and, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in payment of the
Exercise Price, elect instead to receive upon such exercise the “Net Number” of
shares of the Company’s Common Stock determined according to the following
formula (a “Cashless
Exercise”):
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Net
Number = (A x B)
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B
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For purposes of the foregoing
formula:
A= the
total number of shares with respect to which this Warrant is then being
exercised.
B= the
Closing Sale Price of the Common Stock on the Trading Day immediately preceding
the date of the Exercise Notice.
C= the
Exercise Price then in effect for the applicable Warrant Shares at the time of
such exercise.
2.3 Limitations on
Exercises. Notwithstanding
anything to the contrary contained in this Warrant, this Warrant shall not be
exercisable by the Holder hereof to the extent (but only to the extent) that the
Holder or any of its affiliates would beneficially own in excess of five percent
(5%) of the then current issued and outstanding shares of the Company’s Common
Stock.
3. Shares to be
Fully Paid; Reservation of Shares. The Company covenants and
agrees that all Warrant Shares, will, upon issuance and, if applicable, payment
of the applicable Exercise Price, be duly authorized, validly issued, fully paid
and nonassessable, and free of all preemptive rights, liens and encumbrances,
except for restrictions on transfer provided for herein or under applicable
federal and state securities laws. The Company shall at all times
reserve and keep available out of its authorized and unissued Common Stock,
solely for the purpose of providing for the exercise of the rights to purchase
all Warrant Shares granted pursuant to this Warrant, such number of shares of
Common Stock as shall, from time to time, be sufficient therefor.
4. Adjustment of
Exercise Price and Number of Shares. The Exercise Price and
the total number of Warrant Shares shall be subject to adjustment from time to
time upon the occurrence of certain events described in this Section
4. Upon each adjustment of the Exercise Price, the Holder of this
Warrant shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment, and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
4.1 Subdivision or
Combination of Stock. In case the Company shall at any time
split or subdivide its outstanding shares of Common Stock into a greater number
of shares, the Exercise Price in effect immediately prior to such split or
subdivision shall be proportionately reduced and the number of Warrant Shares
issuable hereunder proportionately increased, and conversely, in case the
outstanding shares of the Common Stock of the Company shall be combined into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
issuable hereunder proportionately decreased.
4.2 Reclassification. If
any reclassification of the capital stock of the Company or any reorganization,
consolidation, merger, or any sale, lease, license, exchange or other transfer
(in one transaction or a series of related transactions) of all or substantially
all, of the business and/or assets of the Company (the “Reclassification
Events”) shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, or other assets or property,
then, as a condition of such Reclassification Event lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter have the
right to purchase and receive (in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby) such shares of stock, securities, or other assets
or property as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Common Stock equal to the number of shares
of such stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby. In any Reclassification
Event, appropriate provision shall be made with respect to the rights and
interests of the Holder of this Warrant to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise Price
and of the number of Warrant Shares), shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities, or assets thereafter
deliverable upon the exercise hereof.
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4.3 Notice of
Adjustment. Upon any adjustment of the Exercise Price or any
increase or decrease in the number of Warrant Shares, the Company shall give
written notice thereof, by first class mail postage prepaid, addressed to the
registered Holder of this Warrant at the address of such Holder as shown on the
books of the Company. The notice shall be prepared and signed by the
Company’s Chief Financial Officer and shall state the Exercise 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 this Warrant, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
5. No Voting or
Dividend Rights. Nothing contained in this Warrant shall be
construed as conferring upon the holder hereof the right to vote or to consent
to receive notice as a shareholder of the Company on any other matters or any
rights whatsoever as a shareholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or the interest
represented hereby or the shares purchasable hereunder until, and only to the
extent that, this Warrant shall have been exercised.
6. Compliance with
Securities Act: Transferability of Warrant, Disposition of Shares of Common
Stock.
6.1 Compliance with
Securities Act. The Holder of this Warrant, by acceptance
hereof, agrees that this Warrant and the Warrant Shares to be issued upon
exercise hereof are being acquired for investment and that it will not offer,
sell, or otherwise dispose of this Warrant or any Warrant Shares except under
circumstances which will not result in a violation of the Securities Act of
1933, as amended (the “Act”) or
any applicable state securities laws. This Warrant and all Warrant
Shares (unless registered under the Act) shall be stamped or imprinted with a
legend in substantially the following form:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”). ANY TRANSFER OF SUCH SECURITIES
SHALL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS
TO SUCH TRANSFER OR, IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE
ACT.”
6.2 Access to
Information; Pre-Existing Relationship. Xxxxxx has had the
opportunity to ask questions of, and to receive answers from, appropriate
executive officers of the Company with respect to the terms and conditions of
the transactions contemplated hereby and with respect to the business, affairs,
financial condition and results of operations of the Company. Xxxxxx
has had access to such financial and other information as is necessary in order
for Holder to make a fully informed decision as to investment in the Company,
and has had the opportunity to obtain any additional information necessary to
verify any of such information to which Xxxxxx has had access. Holder
further represents and warrants that the Holder has either (i) a pre-existing
relationship with the Company or one or more of its officers or directors
consisting of personal or business contacts of a nature and duration which
enable the Holder to be aware of the character, business acumen and general
business and financial circumstances of the Company or the officer or director
with whom such relationship exists or (ii) such business or financial expertise
as to be able to protect the Holder’s own interests in connection with the
purchase of the Warrant Shares.
6.3 Warrant Not
Transferable. This Warrant and all rights hereunder are not
transferable without the prior written consent of the Company, which consent
shall not be unreasonably withheld, except that this Warrant and all rights
hereunder may be transferred to an affiliate of the Holder, in whole or in part,
without charge to the Holder (except for transfer taxes), upon surrender of this
Warrant properly endorsed; provided, however, that the Holder shall notify the
Company in writing in advance of any proposed transfer.
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6.4 Disposition of
Warrant Shares and Common Stock. With respect to any offer,
sale, or other disposition of the Warrant or any Warrant Shares, the Holder
hereof and each subsequent Holder of this Warrant agrees to give written notice
to the Company prior thereto, describing briefly the manner thereof, together
with a written opinion of such holder’s counsel, if reasonably requested by the
Company, to the effect that such offer, sale or other disposition may be
effected without registration or qualification (under the Act as then in effect
or any federal or state law then in effect) of such Warrant or Warrant Shares,
as the case may be, and indicating whether or not under the Act certificates for
such Warrant or Warrant Shares to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
insure compliance with the Act. Promptly upon receiving such written
notice and opinion, the Company, as promptly as practicable, shall notify such
Holder that such Holder may sell or otherwise dispose of such Warrant or Warrant
Shares, all in accordance with the terms of the notice delivered to the
Company. If a determination has been made pursuant to this
subparagraph 6.4 that the opinion of the counsel for the Holder is not
reasonably satisfactory to the Company, the Company shall so notify the Holder
promptly after such determination has been made. Notwithstanding the
foregoing, such Warrant or Warrant Shares may be offered, sold or otherwise
disposed of in accordance with Rule 144 under the Act, provided that the Company
shall have been furnished with such information as the Company may request to
provide reasonable assurance that the provisions of Rule 144 have been
satisfied. Each certificate representing the Warrant or Warrant
Shares thus transferred (except a transfer pursuant to Rule 144) shall bear a
legend as to the applicable restrictions on transferability in order to insure
compliance with the Act, unless in the aforesaid opinion of counsel for the
Holder, such legend is not required in order to insure compliance with the
Act. The Company may issue stop transfer instructions to its transfer
agent in connection with such restrictions.
7. Modification and
Waiver. This Warrant and any provision hereof may be changed,
waived, discharged, or terminated only by an instrument in writing signed by the
party against which enforcement of the same is sought.
8. Notices. Any
notice, request, or other document required or permitted to be given or
delivered to the Holder hereof or the Company shall be delivered by hand or
messenger or shall be sent by certified mail, postage prepaid, or by overnight
courier to each such Holder at its address as shown on the books of the Company
or to the Company at the address indicated therefor in the first paragraph of
this Warrant or such other address as either may from time to time provide to
the other. Each such notice or other communication shall be treated
as effective or having been given (i) when delivered if delivered
personally, (ii) if sent by registered or certified mail, at the earlier of
its receipt or three business days after the same has been registered or
certified as aforesaid, or (iii) if sent by overnight courier, on the next
business day after the same has been deposited with a nationally recognized
courier service.
9. Governing
Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Nevada.
10. Lost or Stolen
Warrant. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation,
upon surrender and cancellation of such Warrant, the Company, at its expense,
will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
11. Fractional
Shares. No fractional shares shall be issued upon exercise of
this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the Holder entitled to such fraction a sum in cash equal to such
fraction (calculated to the nearest 1/100th of a share) multiplied by the then
effective Exercise Price on the date the Exercise Notice is received by the
Company.
12. Successors and
Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors of the Company and
the Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant, and shall be
enforceable by any such Holder.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
officer, thereunto duly authorized as of this 30th day of October,
2009.
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a
Nevada corporation
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By:
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Name:
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Xxxxxx
Xxxx
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Title:
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Director
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EXERCISE
NOTICE
TO
BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE COMMON STOCK
The
undersigned holder hereby exercises the right to purchase _________________ of
the shares of Common Stock (“Warrant Shares”) of GC China
Turbine Corp., a Nevada corporation (the “Company”), evidenced by the
Warrant to Purchase Common Stock No. _______ (the “Warrant”). Capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Warrant.
1. Form of Exercise
Price. The Holder intends that payment of the Exercise Price
shall be made as:
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a
“Cash
Exercise” with respect to _________________ Warrant Shares;
and/or
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____________
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a
“Cashless
Exercise” with respect to _______________ Warrant
Shares.
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2. Payment of Exercise
Price. In the event that the Holder has elected a Cash
Exercise with respect to some or all of the Warrant Shares to be issued pursuant
hereto, the Holder shall pay the aggregate Exercise Price in the sum of
$___________________ to the Company in accordance with the terms of the
Warrant.
3. Qualified
Institutional/Accredited Investor. If the Holder is making a Cash
Exercise, the Holder hereby represents that the Holder is an “accredited
investor” as that term is defined in Rule 501 of the rules and regulations
promulgated under the Securities Act of 1933, as amended.
4. Delivery of Warrant
Shares. The Company shall deliver to Holder, or its designee
or agent as specified below, __________ Warrant Shares in accordance with the
terms of the Warrant. Delivery shall be made to Holder, or for its
benefit, to the following address:
_______________________
_______________________
_______________________
_______________________
Date:
_______________ __, ______
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Name
of Registered Holder
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By:
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Name:
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Title:
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(1) Insert
here the number of shares called for on the face of the Warrant (or, in the case
of a partial exercise, the portion thereof as to which the Warrant is being
exercised), in either case without making any adjustment for any stock or other
securities or property or cash which, pursuant to the adjustment provisions of
the Warrant, may be deliverable upon exercise.
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs
________________________ to issue the above indicated number of shares of Common
Stock in accordance with the Transfer Agent Instructions dated _____________,
2009 from the Company and acknowledged and agreed to by
___________________________.
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a
Nevada corporation
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By:
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Name:
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Title:
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