Exhibit 4.2
THE REGISTERED HOLDER OF THIS
PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT
SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN
PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES
THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS
PURCHASE OPTION FOR A PERIOD OF ONE YEAR FOLLOWING THE EFFECTIVE
DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) EARLYBIRDCAPITAL,
INC. (“EBC”) OR AN UNDERWRITER OR A SELECTED DEALER IN
CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR
PARTNER OF EBC OR OF ANY SUCH UNDERWRITER OR SELECTED
DEALER.
THIS PURCHASE OPTION IS NOT
EXERCISABLE PRIOR TO THE LATER OF THE CONSUMMATION BY CHINA
UNISTONE ACQUISITION CORPORATION (“COMPANY”) OF A
MERGER, CAPITAL STOCK EXCHANGE, ASSET ACQUISITION OR OTHER SIMILAR
BUSINESS COMBINATION (“BUSINESS COMBINATION”) (AS
DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT
(DEFINED HEREIN)) OR NOVEMBER 18, 2005. VOID AFTER 5:00 P.M.
EASTERN TIME, NOVEMBER 17, 2009.
UNIT PURCHASE
OPTION
For the Purchase
of
__________ Units
of
CHINA UNISTONE ACQUISITION
CORPORATION
1.
Purchase Option .
THIS CERTIFIES THAT, in
consideration of $_________ duly paid by or on behalf of ________
(“Holder”), as registered owner of this Purchase
Option, to China Unistone Acquisition Corporation
(“Company”), Holder is entitled, at any time or from
time to time upon the later of the consummation of a Business
Combination or November 18, 2005 (“Commencement Date”),
and at or before 5:00 p.m., Eastern Time, November 17, 2009
(“Expiration Date”), but not thereafter, to subscribe
for, purchase and receive, in whole or in part, up to ___________
(_________) units (“Units”) of the Company, each Unit
consisting of one share of common stock of the Company, par value
$.0001 per share (“Common Stock”), and two warrants
(“Warrant(s)”) expiring four years from the effective
date (“Effective Date”) of the registration statement
(“Registration Statement”) pursuant to which
Units are offered for sale to the public
(“Offering”). Each Warrant is the same as the
warrants included in the Units being registered for sale to the
public by way of the Registration Statement (“Public
Warrants”) except that the Warrants have an exercise
price of $6.25 per share. If the Expiration Date is a day on
which banking institutions are authorized by law to close, then
this Purchase Option may be exercised on the next succeeding day
which is not such a day in accordance with the terms herein.
During the period ending on the Expiration Date, the Company agrees
not to take any action that would terminate the Purchase
Option. This Purchase Option is initially exercisable at
$9.90 per Unit so purchased; provided,
1
however, that upon the occurrence of
any of the events specified in Section 6 hereof, the rights granted
by this Purchase Option, including the exercise price per Unit and
the number of Units (and shares of Common Stock and Warrants) to be
received upon such exercise, shall be adjusted as therein
specified. The term “Exercise Price” shall mean
the initial exercise price or the adjusted exercise price,
depending on the context.
2.
Exercise .
2.1
Exercise Form . In order to exercise this Purchase
Option, the exercise form attached hereto must be duly executed and
completed and delivered to the Company, together with this Purchase
Option and payment of the Exercise Price for the Units being
purchased payable in cash or by certified check or official bank
check. If the subscription rights represented hereby shall
not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date this Purchase Option shall become and be void
without further force or effect, and all rights represented hereby
shall cease and expire.
2.2
Legend . Each certificate for the securities purchased
under this Purchase Option shall bear a legend as follows unless
such securities have been registered under the Securities Act of
1933, as amended (“Act”):
“The securities represented by
this certificate have not been registered under the Securities Act
of 1933, as amended (“Act”) or applicable state
law. The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration
statement under the Act, or pursuant to an exemption from
registration under the Act and applicable state
law.”
2.3
Cashless Exercise .
2.3.1
Determination of Amount . In lieu of the payment of
the Exercise Price multiplied by the number of Units for which this
Purchase Option is exercisable (and in lieu of being entitled to
receive Common Stock and Warrants) in the manner required by
Section 2.1, the Holder shall have the right (but not the
obligation) to convert any exercisable but unexercised portion of
this Purchase Option into Units (“Conversion Right”) as
follows: upon exercise of the Conversion Right, the Company
shall deliver to the Holder (without payment by the Holder of any
of the Exercise Price in cash) that number of shares of Common
Stock and Warrants comprising that number of Units equal to the
quotient obtained by dividing (x) the “Value” (as
defined below) of the portion of the Purchase Option being
converted by (y) the Current Market Value (as defined below).
The “Value” of the portion of the Purchase Option being
converted shall equal the remainder derived from subtracting (a)
(i) the Exercise Price multiplied by (ii) the number of Units
underlying the portion of this Purchase Option being converted from
(b) the Current Market Value of a Unit multiplied by the number of
Units underlying the portion of the Purchase Option being
converted. As used herein, the term “Current Market
Value” per Unit at any date means the remainder derived from
subtracting (x) the exercise price of the Warrants multiplied by
the number of shares of Common Stock issuable upon exercise of the
Warrants underlying one Unit from (y) the Current Market Price of
the Common Stock multiplied by the number of shares of Common Stock
underlying the Warrants and the Common Stock issuable upon exercise
of one Unit. The “Current Market Price” of a
share of Common Stock shall mean (i) if the Common Stock is listed
on a national securities exchange or quoted on the Nasdaq National
Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board (or
successor such as the Bulletin Board Exchange), the last sale price
of the Common Stock in the principal trading market for the Common
Stock as reported by the exchange, Nasdaq or the NASD, as the case
may be; (ii) if the Common Stock is not listed on a national
securities
2
exchange or quoted on the Nasdaq
National Market, Nasdaq SmallCap Market or the NASD OTC Bulletin
Board (or successor such as the Bulletin Board Exchange), but is
traded in the residual over-the-counter market, the closing bid
price for the Common Stock on the last trading day preceding the
date in question for which such quotations are reported by the Pink
Sheets, LLC or similar publisher of such quotations; and (iii) if
the fair market value of the Common Stock cannot be determined
pursuant to clause (i) or (ii) above, such price as the Board of
Directors of the Company shall determine, in good faith.
2.3.2
Mechanics of Cashless Exercise . The Cashless Exercise
Right may be exercised by the Holder on any business day on or
after the Commencement Date and not later than the Expiration Date
by delivering the Purchase Option with the duly executed exercise
form attached hereto with the cashless exercise section completed
to the Company, exercising the Cashless Exercise Right and
specifying the total number of Units the Holder will purchase
pursuant to such Cashless Exercise Right.
2.4
No Obligation to Net Cash Settle . Notwithstanding anything
to the contrary contained in this Purchase Option, if the Company
is unable to deliver any securities pursuant to the exercise of
this Purchase Option as a result of its inability to satisfy its
registration requirements set forth in Section 5 hereof, the
Company will have no obligation to pay such registered holder any
cash or otherwise “net cash settle” the Purchase Option
or the Warrants underlying the Purchase Option.
3.
Transfer .
3.1
General Restrictions . The registered Holder of this
Purchase Option, by its acceptance hereof, agrees that it will not
sell, transfer, assign, pledge or hypothecate this Purchase Option
for a period of one year following the Effective Date to anyone
other than (i) EBC or an underwriter or a selected dealer in
connection with the Offering, or (ii) a bona fide officer or
partner of EBC or of any such underwriter or selected dealer.
On and after the second anniversary of the Effective Date,
transfers to others may be made subject to compliance with or
exemptions from applicable securities laws. In order to make
any permitted assignment, the Holder must deliver to the Company
the assignment form attached hereto duly executed and completed,
together with the Purchase Option and payment of all transfer
taxes, if any, payable in connection therewith. The Company
shall within five business days transfer this Purchase Option on
the books of the Company and shall execute and deliver a new
Purchase Option or Purchase Options of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase
the aggregate number of Units purchasable hereunder or such portion
of such number as shall be contemplated by any such
assignment.
3.2
Restrictions Imposed by the Act . The securities
evidenced by this Purchase Option shall not be transferred unless
and until (i) the Company has received the opinion of counsel for
the Holder that the securities may be transferred pursuant to an
exemption from registration under the Act and applicable state
securities laws, the availability of which is established to the
reasonable satisfaction of the Company (the Company hereby agreeing
that the opinion of Graubard Miller shall be deemed satisfactory
evidence of the availability of an exemption), or (ii) a
registration statement or a post-effective amendment to the
Registration Statement relating to such securities has been filed
by the Company and declared effective by the Securities and
Exchange Commission and compliance with applicable state securities
law has been established.
3
4.
New Purchase Options to be Issued .
4.1
Partial Exercise or Transfer . Subject to the
restrictions in Section 3 hereof, this Purchase Option may be
exercised or assigned in whole or in part. In the event of
the exercise or assignment hereof in part only, upon surrender of
this Purchase Option for cancellation, together with the duly
executed exercise or assignment form and funds sufficient to pay
any Exercise Price and/or transfer tax, the Company shall cause to
be delivered to the Holder without charge a new Purchase Option of
like tenor to this Purchase Option in the name of the Holder
evidencing the right of the Holder to purchase the number of Units
purchasable hereunder as to which this Purchase Option has not been
exercised or assigned.
4.2
Lost Certificate . Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Purchase Option and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute
and deliver a new Purchase Option of like tenor and date. Any
such new Purchase Option executed and delivered as a result of such
loss, theft, mutilation or destruction shall constitute a
substitute contractual obligation on the part of the
Company.
5.
Registration Rights .
5.1
Demand Registration .
5.1.1
Grant of Right . The Company, upon written demand
(“Initial Demand Notice”) of the Holder(s) of at least
51% of the Purchase Options and/or the underlying Units and/or the
underlying securities (“Majority Holders”), agrees to
register on one occasion, all or any portion of the Purchase
Options requested by the Majority Holders in the Initial Demand
Notice and all of the securities underlying such Purchase Options,
including the Units, Common Stock, the Warrants and the Common
Stock underlying the Warrants (collectively, the “Registrable
Securities”). On such occasion, the Company will file a
registration statement or a post-effective amendment to the
Registration Statement covering the Registrable Securities within
sixty days after receipt of the Initial Demand Notice and use its
best efforts to have such registration statement or post-effective
amendment declared effective as soon as possible thereafter.
The demand for registration may be made at any time during a period
of five years beginning on the Effective Date. The Company
covenants and agrees to give written notice of its receipt of any
Initial Demand Notice by any Holder(s) to all other registered
Holders of the Purchase Options and/or the Registrable
Securities within ten days from the date of the receipt of
any such Initial Demand Notice.
5.1.2
Terms . The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, including the
expenses of any legal counsel selected by the Holders to represent
them in connection with the sale of the Registrable Securities, but
the Holders shall pay any and all underwriting commissions.
The Company agrees to use its reasonable best efforts to qualify or
register the Registrable Securities in such States as are
reasonably requested by the Majority Holder(s); provided, however,
that in no event shall the Company be required to register the
Registrable Securities in a State in which such registration would
cause (i) the Company to be obligated to qualify to do business in
such State, or would subject the Company to taxation as a foreign
corporation doing business in such jurisdiction or (ii) the
principal stockholders of the Company to be obligated to escrow
their shares of capital stock of the Company. The Company
shall cause any registration statement or post-effective
amendment filed pursuant to the demand rights granted under Section
5.1.1 to remain effective for a period of nine consecutive months
from the effective date of such registration statement or
post-effective amendment.
4
5.2
“Piggy-Back” Registration .
5.2.1
Grant of Right . In addition to the demand right of
registration, the Holders of the Purchase Options shall have the
right for a period of seven years commencing on the Effective Date,
to include the Registrable Securities as part of any other
registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a)
promulgated under the Act or pursuant to Form S-8); provided,
however, that if, in the written opinion of the Company’s
managing underwriter or underwriters, if any, for such offering,
the inclusion of the Registrable Securities, when added to the
securities being registered by the Company or the selling
stockholder(s), will exceed the maximum amount of the
Company’s securities which can be marketed (i) at a
price reasonably related to their then current market value, and
(ii) without materially and adversely affecting the entire
offering, then the Company will still be required to include the
Registrable Securities, but may require the Holders to agree, in
writing, to delay the sale of all or any portion of the Registrable
Securities for a period of 90 days from the effective date of the
offering, provided, further, that if the sale of any Registrable
Securities is so delayed, then the number of securities to be sold
by all stockholders in such public offering during such 90 day
period shall be apportioned pro rata among all such
selling stockholders, including all holders of the Registrable
Securities, according to the total amount of securities of the
Company owned by said selling stockholders, including all holders
of the Registrable Securities.
5.2.2
Terms . The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, including the
expenses of any legal counsel selected by the Holders to represent
them in connection with the sale of the Registrable Securities but
the Holders shall pay any and all underwriting commissions related
to the Registrable Securities. In the event of such a
proposed registration, the Company shall furnish the then
Holders of outstanding Registrable Securities with not less
than fifteen days written notice prior to the proposed date of
filing of such registration statement. Such notice to
the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the
Purchase Option is exercisable) by the Company until such time as
all of the Registrable Securities have been registered and
sold. The holders of the Registrable Securities shall
exercise the “piggy-back” rights provided for
herein by giving written notice, within ten days of the
receipt of the Company’s notice of its intention to
file a registration statement. The Company shall cause
any registration statement filed pursuant to the above
“piggyback” rights to remain effective for at least
nine months from the date that the Holders of the Registrable
Securities are first given the opportunity to sell all of such
securities.
5.3
Intentionally Omitted .
5.4
General Terms .
5.4.1
Indemnification . The Company shall indemnify the Holder(s)
of the Registrable Securities to be sold pursuant to any
registration statement hereunder and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act
or Section 20(a) of the Securities Exchange Act of 1934, as amended
(“Exchange Act”), against all loss, claim, damage,
expense or liability (including all reasonable attorneys’
fees and other expenses reasonably incurred in investigating,
preparing or defending against litigation, commenced or
threatened, or any claim whatsoever whether arising out of any
action between the underwriter and the Company or between the
underwriter and any third party or otherwise) to which any of them
may become subject under the Act, the Exchange Act or
otherwise, aris