EXHIBIT 4.5
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 180 DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW)
TO ANYONE OTHER THAN (I) DEUTSCHE BANK SECURITIES INC. ("DEUTSCHE BANK") OR
AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING (DEFINED
BELOW), OR (II) A BONA FIDE OFFICER OR PARTNER OF DEUTSCHE BANK OR OF ANY
SUCH UNDERWRITER OR SELECTED DEALER. THIS PURCHASE OPTION IS NOT EXERCISABLE
PRIOR TO THE LATER OF (I) THE CONSUMMATION BY ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION
CORPORATION ("COMPANY") OF AN ACQUISITION, OR ACQUISITION OF CONTROL, OF ONE
OR MORE ASSETS OR OPERATING BUSINESSES IN THE TELECOMMUNICATIONS AND MEDIA
INDUSTRIES THROUGH A MERGER, CAPITAL STOCK EXCHANGE, ASSET OR STOCK
ACQUISITION OR OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS COMBINATION")
AND (II) _________, 2007. VOID AFTER 5:00 P.M. NEW YORK CITY LOCAL TIME,
_________, 2010.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
781,250 UNITS
OF
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION CORPORATION
1. PURCHASE OPTION.
THIS CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf
of _________ ("HOLDER"), as registered owner of this Purchase Option ("PURCHASE
OPTION"), to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 _________, 2007 ("COMMENCEMENT DATE"), and at or
before 5:00 p.m., New York City local time, _________, 2010 ("EXPIRATION DATE"),
but not thereafter, to subscribe for, purchase and receive, in whole or in part,
up to 781,250 units ("UNITS") of the Company, each Unit consisting of one share
of common stock of the Company, par value $0.0001 per share ("COMMON STOCK"),
and one warrant ("WARRANT") 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 exercise price of the Warrant is $7.50 per
share (such exercise price, as it may be adjusted hereunder, the "Underwriter's
Warrant Price"). If the Expiration Date is a day on which banking institutions
are authorized by law to close in New York City, 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 $10.00 per Unit so purchased;
provided, 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 per
Unit or the adjusted exercise price per Unit, 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., New York City local 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. CASHLESS EXERCISE.
2.2.1. 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 Units (or 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) of a
Unit. 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
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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: (A) in the event that neither the Units nor Public
Warrants are still trading, 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)
(i) the Current Market Price of the Common Stock multiplied by (ii) the
number of shares of Common Stock underlying one Unit, which shall include
the shares of Common Stock underlying the Warrants included in such Unit;
(B) in the event that the Units, Common Stock and Public Warrants are still
trading, (i) if the Units are listed on a national securities exchange or
quoted on the Nasdaq National Market, Nasdaq SmallCap Market or NASD OTC
Bulletin Board (or successor exchange), the last sale price of the Units in
the principal trading market for the Units as reported by the exchange,
Nasdaq or the NASD, as the case may be, on the last trading day preceding
the date in question; or (ii) if the Units are not listed on a national
securities exchange or quoted on the Nasdaq National Market, Nasdaq
SmallCap Market or the NASD OTC Bulletin Board (or successor exchange), but
is traded in the residual over-the-counter market, the closing bid price
for Units 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 (C) in the event that the Units are not still
trading but the Common Stock and Public Warrants underlying the Units are
still trading, the Current Market Price of the Common Stock plus the
product of (x) the Current Market Price of the Public Warrants and (y) the
number of shares of Common Stock underlying the Warrants included in one
Unit. The "CURRENT MARKET PRICE" shall mean (i) if the Common Stock (or
Public Warrants, as the case may be) is listed on a national securities
exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or
NASD OTC Bulletin Board (or successor exchange), the last sale price of the
Common Stock (or Public Warrants) in the principal trading market for the
Common Stock as reported by the exchange, Nasdaq or the NASD, as the case
may be, on the last trading day preceding the date in question; (ii) if the
Common Stock (or Public Warrants, as the case may be) is not listed on a
national securities exchange or quoted on the Nasdaq National Market,
Nasdaq SmallCap Market or the NASD OTC Bulletin Board (or successor
exchange), but is traded in the residual over-the-counter market, the
closing bid price for the Common Stock (or Public Warrants) 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. In the event the Public
Warrants have expired and are no longer exercisable, no "VALUE" shall be
attributed to the Warrants underlying this Purchase Option. Additionally,
in the event that this Purchase Option is exercised pursuant to this
Section 2.2 and the
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Public Warrants are still trading, the "VALUE" shall be reduced by the
difference between the Warrant Exercise Price and the exercise price of the
Public Warrants multiplied by the number of Warrants underlying the Units
included in the portion of this Purchase Option being converted.
2.2.2. MECHANICS OF CASHLESS EXERCISE. The cashless exercise right
described in this Section 2.2 (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.
2.3. LIMITATIONS. Notwithstanding the foregoing, the Company shall not be
obligated to deliver any securities pursuant to the exercise of a Purchase
Option and shall have no obligation to settle the Purchase Option exercise
unless a registration statement under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to the securities underlying the Purchase
Option is effective and a current prospectus is on file with the Securities and
Exchange Commission (the "COMMISSION"). In the event that a registration
statement with respect to the securities underlying a Purchase Option is not
effective under the Securities Act or a current prospectus is not on file with
the Commission, the holder of such Purchase Option shall not be entitled to
exercise such Purchase Option. Notwithstanding anything to the contrary in this
Purchase Option, under no circumstances will the Company be required to net cash
settle the Purchase Option exercise. Purchase Options may not be exercised by,
or securities underlying such Purchase Option issued to, any registered holder
in any state in which such exercise or issuance would be unlawful. For the
avoidance of doubt, as a result of this Section 2.3, any or all of the Purchase
Option may expire unexercised. In no event shall the registered Holder of this
Purchase Option be entitled to receive any monetary damages if the securities
underlying this Purchase Option have not been registered by the Company pursuant
to an effective registration statement or if a current prospectus is not on file
with the Commission, provided the Company has fulfilled its obligation to use
its best efforts to effect such registration and ensure a current prospectus is
on file with the Commission.
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, or enter into any hedging, short sale, derivative, put, or call
transaction that would result in the effective economic disposition of, this
Purchase Option for a period of 180 days following the Effective Date to anyone
other than (i) Deutsche Bank or an underwriter or a selected dealer in
connection with the Offering, or (ii) a bona fide officer or partner of Deutsche
Bank or of any such underwriter or selected dealer. On and after the 181st day
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after 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 SECURITIES 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
Securities 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 Debevoise & ▇▇▇▇▇▇▇▇ LLP 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 Commission and compliance with applicable state securities law
has been established.
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.
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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 50.1% of the Purchase Options
and/or the underlying Units and/or the underlying securities ("MAJORITY
HOLDERS"), agrees to use its reasonable best efforts to register (the
"DEMAND REGISTRATION") under the Securities Act on one occasion, all 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 for use in an
offering of the Registrable Securities from time-to-time or a
post-effective amendment to the Registration Statement covering all of the
Registrable Securities that will permit an offering of the Registrable
Securities from time-to-time 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 four years beginning on the Effective Date. The Initial Demand
Notice shall specify the intended method(s) of distribution of the
Registrable Securities. The Company will notify all holders of the Purchase
Options and/or Registrable Securities of the demand within ten days from
the date of the receipt of any such Initial Demand Notice. Each holder of
Registrable Securities who wishes to include all or a portion of such
holder's Registrable Securities in the Demand Registration (each such
holder including shares of Registrable Securities in such registration, a
"DEMANDING HOLDER") shall so notify the Company within fifteen (15) days
after the receipt by the holder of the notice from the Company. Upon any
such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to
Section 5.1.4.
5.1.2. EFFECTIVE REGISTRATION. A registration will not count as a
Demand Registration until the registration statement filed with the
Commission with respect to such Demand Registration has been declared
effective and the Company has complied with all of its obligations under
this Agreement with respect thereto; provided, however, that if, after such
registration statement has been declared effective, the offering of
Registrable Securities pursuant to a Demand Registration is interfered with
by any stop order or injunction of the Commission or any other governmental
agency or court, the registration statement with respect to such Demand
Registration will be deemed not to have been declared effective, unless and
until, (i) such stop order or injunction is removed,
6
rescinded or otherwise terminated, and (ii) a majority-in-interest of the
Demanding Holders thereafter elect to continue the offering.
5.1.3. UNDERWRITTEN OFFERING. If the Majority Holders so elect and
such holders so advise the Company as part of the Initial Demand Notice,
the offering of all or any portion of the Registrable Securities pursuant
to such Demand Registration shall be in the form of one underwritten
offering. All Demanding Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Majority Holders.
5.1.4. REDUCTION OF OFFERING. If the managing underwriter or
underwriters for a Demand Registration that is to be an underwritten
offering advises the Company and the Demanding Holders in writing that the
dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell pursuant to the underwritten offering,
taken together with all other shares of Common Stock or other securities
which the Company desires to sell and the shares of Common Stock, if any,
as to which registration has been requested pursuant to written contractual
piggy-back registration rights held by other stockholders of the Company
who desire to sell, exceeds the maximum dollar amount or maximum number of
shares that can be sold in such offering without adversely affecting the
proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or
maximum number of shares, as applicable, the "MAXIMUM NUMBER OF SHARES"),
then the Company shall include in such registration: (i) first, the
Registrable Securities as to which Demand Registration has been requested
by the Demanding Holders that want to participate in such underwritten
offering (pro rata in accordance with the number of shares that each such
Person has requested be included in such registration, regardless of the
number of shares held by each such Person (such proportion is referred to
herein as "PRO RATA")) that can be sold without exceeding the Maximum
Number of Shares; (ii) second, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clause (i), the shares of
Common Stock or other securities that the Company desires to sell that can
be sold without exceeding the Maximum Number of Shares; (iii) third, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), the shares of Common Stock or other
securities registrable pursuant to the terms of the Registration Rights
Agreement between the Company and the initial investors in the Company,
dated as of _________, 2006 (the "REGISTRATION RIGHTS AGREEMENT" and such
registrable securities, the "INVESTOR SECURITIES") as to which "piggy-back"
registration has been requested by the holders thereof, Pro Rata, that can
be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to
the extent that the Maximum Number of Shares have not been reached under
the foregoing clauses
7
(i), (ii), and (iii), the shares of Common Stock or other securities for
the account of other persons that the Company is obligated to register
pursuant to written contractual arrangements with such persons and that can
be sold without exceeding the Maximum Number of Shares.
5.1.5. WITHDRAWAL. If a majority-in-interest of the Demanding Holders
disapprove of the terms of any underwriting or are not entitled to include
all of their Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders may elect to withdraw from
such offering by giving written notice to the Company and the underwriter
or underwriters of their request to withdraw prior to the effectiveness of
the registration statement filed with the Commission with respect to such
Demand Registration. If the majority-in-interest of the Demanding Holders
withdraws from a proposed offering relating to a Demand Registration, then
such registration shall not count as a Demand Registration provided for in
Section 5.1, provided that the majority-in-interest of the Demanding
Holders electing to so withdraw from the offering pays all costs and
expenses incurred by the Company in connection with such withdrawn Demand
Registration.
5.1.6. 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 use its reasonable best efforts to cause any registration
statement or post-effective amendment filed pursuant to the demand rights
granted under Section 5.1.1 to remain effective until the expiration of the
Warrants in accordance with the terms and conditions of that certain
Warrant Agreement, dated as of ___________, 2006, between the Company and
Continental Stock Transfer & Trust Company.
5.1.7. PERMITTED DELAYS. The Company shall be entitled to postpone,
for up to 60 days, the filing of any registration statement under this
Section 5.1, if (a) at any time prior to the filing of such registration
statement the Company's Board of Directors determines, in its good faith
business judgment, that such registration and offering would materially and
adversely affect any financing, acquisition,
8
corporate reorganization, or other material transaction involving the
Company, and (b) the Company delivers to the Demanding Holders written
notice thereof within five (5) business days of the date of receipt of a
request for Demand Registration.
5.2. PIGGY-BACK REGISTRATION.
5.2.1. PIGGY-BACK RIGHTS. If at any time during the seven year period
commencing on the Effective Date the Company proposes to file a
registration statement under the Securities Act with respect to an offering
of equity securities, or securities or other obligations exercisable or
exchangeable for, or convertible into, equity securities, by the Company
for its own account or for stockholders of the Company for their account
(or by the Company and by stockholders of the Company including, without
limitation, pursuant to Section 5.1), other than a registration statement
(i) filed in connection with any employee stock option or other benefit
plan, (ii) for an exchange offer or offering of securities solely to the
Company's existing stockholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan, then the Company shall (x) give written notice of such
proposed filing to the holders of Registrable Securities as soon as
practicable but in no event less than ten days before the anticipated
filing date, which notice shall describe the amount and type of securities
to be included in such offering, the intended method(s) of distribution,
and the name of the proposed managing underwriter or underwriters, if any,
of the offering, and (y) offer to the holders of Registrable Securities in
such notice the opportunity to register the sale of such number of shares
of Registrable Securities as such holders may request in writing within
five days following receipt of such notice (a "PIGGY-BACK REGISTRATION").
The Company shall cause such Registrable Securities to be included in such
registration and shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit
the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of
the Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution
thereof. All holders of Registrable Securities proposing to distribute
their securities through a Piggy-Back Registration that involves an
underwriter or underwriters shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
Piggy-Back Registration.
5.2.2. REDUCTION OF OFFERING. If the managing underwriter or
underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of shares of Common Stock which
the Company desires to sell, taken together with shares of Common Stock, if
any, as to which
9
registration has been demanded pursuant to written contractual arrangements
with persons other than the holders of Registrable Securities hereunder,
the Registrable Securities as to which registration has been requested
under this Section 5.2, and the shares of Common Stock, if any, as to which
registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company,
exceeds the Maximum Number of Shares, then the Company shall include in any
such registration:
(a) If the registration is undertaken for the Company's account:
(A) first, the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clause (A), the shares
of Common Stock or other securities, if any, comprised of Registrable
Securities and Investor Securities, as to which registration has been
requested pursuant to the applicable written contractual piggy-back
registration rights of such security holders, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; and (C) third, to
the extent that the Maximum Number of shares has not been reached
under the foregoing clauses (A) and (B), the shares of Common Stock or
other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual piggy-back
registration rights with such persons and that can be sold without
exceeding the Maximum Number of Shares;
(b) If the registration is a "DEMAND" registration undertaken at
the demand of holders of Investor Securities, (A) first, the shares of
Common Stock or other securities for the account of the demanding
persons, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clause (A), the shares
of Common Stock or other securities that the Company desires to sell
that can be sold without exceeding the Maximum Number of Shares; (C)
third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A) and (B), the shares of
Registrable Securities, Pro Rata, as to which registration has been
requested pursuant to the terms hereof, that can be sold without
exceeding the Maximum Number of Shares; and (D) fourth, to the extent
that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the shares of Common Stock or
other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements
with such persons, that can be sold without exceeding the Maximum
Number of Shares; and
10
(c) If the registration is a "DEMAND" registration undertaken at
the demand of persons other than either the holders of Registrable
Securities or of Investor Securities, (A) first, the shares of Common
Stock or other securities for the account of the demanding persons
that can be sold without exceeding the Maximum Number of Shares; (B)
second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the shares of Common Stock or
other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (C) third, to the
extent that the Maximum Number of Shares has not been reached under
the foregoing clauses (A) and (B), collectively the shares of Common
Stock or other securities comprised of Registrable Securities and
Investor Securities, Pro Rata, as to which registration has been
requested pursuant to the terms hereof and of the Registration Rights
Agreement, as applicable, that can be sold without exceeding the
Maximum Number of Shares; and (D) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the shares of Common Stock or other
securities for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements
with such persons, that can be sold without exceeding the Maximum
Number of Shares.
5.2.3. WITHDRAWAL. Any holder of Registrable Securities may elect to
withdraw such ▇▇▇▇▇▇'s request for inclusion of Registrable Securities in
any Piggy-Back Registration by giving written notice to the Company of such
request to withdraw prior to the effectiveness of the registration
statement. The Company (whether on its own determination or as the result
of a withdrawal by persons making a demand pursuant to written contractual
obligations) may withdraw a registration statement at any time prior to the
effectiveness of the registration statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back Registration as
provided in Section 5.2.4.
5.2.4. 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
11
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 use its reasonable best efforts
to cause any registration statement filed pursuant to the above
"piggy-back" 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.
5.2.5. PERMITTED DELAYS. The Company shall be entitled to postpone,
for up to 60 days, the filing of any registration statement under this
Section 5.2, if (a) at any time prior to the filing of such registration
statement the Company's Board of Directors determines, in its good faith
business judgment, that such registration and offering would materially and
adversely affect any financing, acquisition, corporate reorganization, or
other material transaction involving the Company, and (b) the Company
delivers to the Holders of the Registrable Securities exercising their
"piggy-back" rights written notice thereof within five (5) business days of
the date of receipt by the Company of such requests for Piggy-Back
Registration.
5.3. GENERAL TERMS.
5.3.1. 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 Securities 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 Securities
Act, the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same effect as the
provisions pursuant to which the Company has agreed to indemnify the
underwriter contained in Section [8] of the Underwriting Agreement between
the Company and Deutsche Bank dated the Effective Date. The Holder(s) of
the Registrable Securities to be sold pursuant to such registration
statement, and their successors and assigns, shall severally, and not
jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage, expense or liability (including all reasonable attorneys'
fees and other expenses reasonably incurred in investigating, preparing
12
or defending against any claim whatsoever) to which they may become subject
under the Securities Act, the Exchange Act or otherwise, arising from
information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration
statement to the same extent and with the same effect as the provisions
contained in Section 5 of the Underwriting Agreement pursuant to which the
underwriter has agreed to indemnify the Company.
5.3.2. EXERCISE OF PURCHASE OPTIONS. Nothing contained in this
Purchase Option shall be construed as requiring the Holder(s) to exercise
their Purchase Options or Warrants underlying such Purchase Options prior
to or after the initial filing of any registration statement or the
effectiveness thereof.
5.3.3. DOCUMENTS DELIVERED TO HOLDERS. The Company shall furnish to
the Holders participating in any of the foregoing offerings, a signed
counterpart, addressed to the participating Holders, of (i) an opinion of
counsel to the Company, dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, an opinion dated the date of the closing under any underwriting
agreement related thereto), and (ii) a "cold comfort" letter dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, a letter dated the date of the
closing under the underwriting agreement) signed by the independent public
accountants who have issued a report on the Company's financial statements
included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement
(and the prospectus included therein) and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to the
Holders participating in the offering, the correspondence and memoranda
described below and copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the
registration statement and permit the Holders, to do such investigation,
upon reasonable advance notice, with respect to information contained in or
omitted from the registration statement as it deems reasonably necessary to
comply with applicable securities laws or rules of the National Association
of Securities Dealers, Inc. ("NASD"). Such investigation shall include
access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to
such reasonable extent and at such reasonable times and as often as the
Holders shall reasonably request. The Company shall not be required to
disclose any confidential information or other records to the Holders, or
to any other person,
13
until and unless such persons shall have entered into reasonable
confidentiality agreements (in form and substance reasonably satisfactory
to the Company), with the Company with respect thereto.
5.4. UNDERWRITING AGREEMENT. The Company shall enter into an underwriting
agreement with the managing underwriter(s), if any, selected by any Holders
whose Registrable Securities are being registered pursuant to this Section 5,
which managing underwriter shall be reasonably acceptable to the Company. Such
agreement shall be reasonably satisfactory in form and substance to the Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other terms as
are customarily contained in agreements of that type used by the managing
underwriter. The Holders shall be parties to any underwriting agreement relating
to an underwritten sale of their Registrable Securities and may, at their
option, require that any or all the representations, warranties and covenants of
the Company to or for the benefit of such underwriters shall also be made to and
for the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution. Such Holders, however, shall agree to such covenants
and indemnification and contribution obligations for selling stockholders as are
customarily contained in agreements of that type used by the managing
underwriter. Further, such Holders shall execute appropriate custody agreements
and otherwise cooperate fully in the preparation of the registration statement
and other documents relating to any offering in which they include securities
pursuant to this Section 5. Each Holder shall also furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registrable Securities.
5.4.1. RULE 144 SALE. Notwithstanding anything contained in this
Section 5 to the contrary, the Company shall have no obligation pursuant to
Sections 5.1 or 5.2 for the registration of Registrable Securities held by
any Holder (i) where such Holder would then be entitled to sell under Rule
144 within any three-month period (or such other period prescribed under
Rule 144 as may be provided by amendment thereof) all of the Registrable
Securities then held by such Holder, and (ii) where the number of
Registrable Securities held by such Holder is within the volume limitations
under paragraph (e) of Rule 144 (calculated as if such Holder were an
affiliate within the meaning of Rule 144).
5.4.2. SUPPLEMENTAL PROSPECTUS. Each Holder agrees, that upon receipt
of any notice from the Company of the happening of any event as a result of
which the prospectus included in the registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light
14
of the circumstances then existing, such Holder will immediately
discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such
▇▇▇▇▇▇'s receipt of the copies of a supplemental or amended prospectus,
and, if so desired by the Company, such Holder shall deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company a
certificate of such destruction) all copies, other than permanent file
copies then in such ▇▇▇▇▇▇'s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
6. ADJUSTMENTS.
6.1. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES. The Exercise
Price and the number of Units underlying the Purchase Option shall be subject to
adjustment from time to time as hereinafter set forth:
6.1.1. STOCK DIVIDENDS--SPLIT-UPS. If after the date hereof, and
subject to the provisions of Section 6.3 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares
of Common Stock, or by a split-up of shares of Common Stock or other
similar event, then, on the effective date thereof, the number of shares of
Common Stock underlying each of the Units purchasable hereunder shall be
increased in proportion to such increase in outstanding shares. In such
case, the number of shares of Common Stock, and the exercise price
applicable thereto, underlying the Warrants underlying each of the Units
purchasable hereunder shall be adjusted in accordance with the terms of the
Warrants. For example, if the Company declares a two-for-one stock dividend
and at the time of such dividend this Purchase Option is for the purchase
of one Unit at $10.00 per whole Unit (each Warrant underlying the Units is
exercisable for $7.50 per share), upon effectiveness of the dividend, this
Purchase Option will be adjusted to allow for the purchase of one Unit at
$10.00 per Unit, each Unit entitling the holder to receive two shares of
Common Stock and two Warrants (each Warrant exercisable for $3.75 per
share).
6.1.2. EXTRAORDINARY DIVIDEND. If the Company, at any time while
this Purchase Option is outstanding and unexpired, shall pay a dividend or
make a distribution in cash, securities or other assets to the holders of
Common Stock (or other shares of the Company's capital stock receivable
upon exercise of the Purchase Option), other than (i) as described in
Sections 6.1.1, 6.1.3 or 6.1.4, (ii) regular quarterly or other periodic
dividends, (iii) in connection with the conversion rights of the holders
of Common Stock upon consummation of the Company's initial Business
Combination or (iv) in connection with the Company's liquidation and the
distribution of its assets upon its failure to consummate a Business
Combination (any such non-excluded event being referred to herein as an
"Extraordinary Dividend"), then the Exercise Price shall be decreased,
15
effective immediately after the effective date of such Extraordinary
Dividend, by the amount of cash and/or the fair market value (as
determined by the Company's Board of Directors, in good faith) of any
securities or other assets paid on each share of Common Stock in respect
of such Extraordinary Dividend.
6.1.3. AGGREGATION OF SHARES. If after the date hereof, and subject to
the provisions of Section 6.3, the number of outstanding shares of Common
Stock is decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, on the effective date
thereof, the number of shares of Common Stock underlying each of the Units
purchasable hereunder shall be decreased in proportion to such decrease in
outstanding shares. In such case, the number of shares of Common Stock, and
the exercise price applicable thereto, underlying the Warrants underlying
each of the Units purchasable hereunder shall be adjusted in accordance
with the terms of the Warrants.
6.1.4. REPLACEMENT OF SECURITIES UPON REORGANIZATION, ETC. In case of
any reclassification or reorganization of the outstanding shares of Common
Stock other than a change covered by Section 6.1.1 or 6.1.3 hereof or that
solely affects the par value of such shares of Common Stock, or in the case
of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is
the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding shares of Common Stock), or in the
case of any sale or conveyance to another corporation or entity of the
property of the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the Holder of this Purchase
Option shall have the right thereafter (until the expiration of the right
of exercise of this Purchase Option) to receive upon the exercise hereof,
for the same aggregate Exercise Price payable hereunder immediately prior
to such event, 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, by a Holder of the number of shares of Common
Stock of the Company obtainable upon exercise of this Purchase Option and
the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered
by Section 6.1.1 or 6.1.3, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.3 and this Section 6.1.4. The provisions of this
Section 6.1.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
16
6.1.5. CHANGES IN FORM OF PURCHASE OPTION. This form of Purchase
Option need not be changed because of any change pursuant to this Section,
and Purchase Options issued after such change may state the same Exercise
Price and the same number of Units as are stated in the Purchase Options
initially issued pursuant to this Agreement. The acceptance by any Holder
of the issuance of new Purchase Options reflecting a required or permissive
change shall not be deemed to waive any rights to an adjustment occurring
after the Commencement Date or the computation thereof.
6.1.6. ADJUSTMENTS OF WARRANTS. To the extent the price of the
Warrants is lowered pursuant to Section 3.1 of the Warrant Agreement, dated
______________, 2006, between the Company and Continental Stock Transfer &
Trust Company (the "WARRANT AGREEMENT") the price of the Warrants
underlying the Purchase Option shall be reduced equally (except that the
Warrant Price (as defined in the Warrant Agreement) for the Warrants shall
always remain equal to 125% of the Warrant Price for the Public Warrants),
subject to any limitations and conditions that may be imposed by NASD
Corporate Financing Rule 2710 and any such reduction must remain in effect
for at least twenty (20) business days. To the extent the duration of the
Warrants is extended pursuant to Section 3.2 of the Warrant Agreement, the
duration of the Warrants underlying the Purchase Option shall be extended
on identical terms, subject to any limitations that may be imposed by NASD
Corporate Financing Rule 2710.
6.2. SUBSTITUTE PURCHASE OPTION. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental Purchase Option providing that the holder of each
Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Option) to receive,
upon exercise of such Purchase Option, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger,
by a holder of the number of shares of Common Stock of the Company for which
such Purchase Option might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental Purchase Option shall
provide for adjustments which shall be identical to the adjustments provided in
Section 6. The above provision of this Section shall similarly apply to
successive consolidations or mergers.
6.3. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required
to issue certificates representing fractions of shares of Common Stock or
Warrants upon the exercise of the Purchase Option, nor shall it be required to
issue scrip or pay cash in lieu of any fractional interests, it being the intent
of the parties that all fractional interests shall
17
be eliminated by rounding any fraction up to the nearest whole number of
Warrants, shares of Common Stock or other securities, properties or rights.
7. RESERVATION AND LISTING. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of the Purchase Options or the Warrants underlying the
Purchase Option, such number of shares of Common Stock or other securities,
properties or rights as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Purchase Options and payment of
the Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid and
non-assessable and not subject to preemptive rights of any stockholder. The
Company further covenants and agrees that upon exercise of the Warrants
underlying the Purchase Options and payment of the respective Warrant exercise
price therefor, all shares of Common Stock and other securities issuable upon
such exercise shall be duly and validly issued, fully paid and non-assessable
and not subject to preemptive rights of any stockholder. As long as the Purchase
Options shall be outstanding, the Company shall use its best efforts to cause
all (i) Units and shares of Common Stock issuable upon exercise of the Purchase
Options, (iii) Warrants issuable upon exercise of the Purchase Options and (iv)
shares of Common Stock issuable upon exercise of the Warrants included in the
Units issuable upon exercise of the Purchase Option to be listed (subject to
official notice of issuance) on all securities exchanges (or, if applicable on
the Nasdaq National Market, SmallCap Market, OTC Bulletin Board or any successor
trading market) on which the Units, the Common Stock or the Public Warrants
issued to the public in connection herewith may then be listed and/or quoted.
8. CERTAIN NOTICE REQUIREMENTS.
8.1. ▇▇▇▇▇▇'S RIGHT TO RECEIVE NOTICE. Nothing herein shall be construed as
conferring upon the Holders the right to vote or consent as a stockholder for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Purchase Options and their exercise, any of the events
described in Section 8.2 shall occur, then, in one or more of said events, the
Company shall give written notice of such event at least fifteen days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription rights, or entitled to vote
on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer books, as
the case may be. Notwithstanding the foregoing, the Company shall deliver to
each Holder a copy of each notice given to the other stockholders of the Company
at the same time and in the same manner that such notice is given to the
stockholders.
8.2. EVENTS REQUIRING NOTICE. The Company shall be required to give the
notice described in this Section 8 upon one or more of the following events: (i)
if the
18
Company shall take a record of the holders of its shares of Common Stock for the
purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, or (ii) the Company shall
offer to all the holders of its Common Stock any additional shares of capital
stock of the Company or securities convertible into or exchangeable for shares
of capital stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business shall be proposed.
8.3. NOTICE OF CHANGE IN EXERCISE PRICE. The Company shall, promptly after
an event requiring a change in the Exercise Price pursuant to Section 6 hereof,
send notice to the Holders of such event and change ("PRICE NOTICE"). The Price
Notice shall describe the event causing the change and the method of calculating
same and shall be certified as being true and accurate by the Company's
President and Chief Financial Officer.
8.4. TRANSMITTAL OF NOTICES. All notices, requests, consents and other
communications under this Purchase Option shall be in writing and shall be
deemed to have been duly made when hand delivered, or mailed by express mail or
private courier service: (i) if to the registered Holder of the Purchase Option,
to the address of such Holder as shown on the books of the Company, or (ii) if
to the Company, to the following address or to such other address as the Company
may designate by notice to the Holders:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
9. MISCELLANEOUS.
9.1. AMENDMENTS. The Company may from time to time supplement or amend this
Purchase Option without the approval of any of the Holders in order to cure any
ambiguity, to correct or supplement any provision contained herein that may be
defective or inconsistent with any other provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder that the Company
may deem necessary or desirable and that the Company, in the exercise of
reasonable judgment, determines that it shall not adversely affect the interest
of the Holders. All other modifications or amendments shall require the written
consent of and be signed by the party against whom enforcement of the
modification or amendment is sought.
19
9.2. HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Purchase Option.
9.3. ENTIRE AGREEMENT. This Purchase Option (together with the other
agreements and documents being delivered pursuant to or in connection with this
Purchase Option) constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.4. BINDING EFFECT. This Purchase Option shall inure solely to the benefit
of and shall be binding upon, the Holder and the Company and their permitted
assignees, respective successors, legal representative and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Purchase Option or any
provisions herein contained.
9.5. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Purchase Option shall
be governed by and construed and enforced in accordance with 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 Purchase Option 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 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
8 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim. The Company and the
Holder agree that the prevailing party(ies) in any such action shall be entitled
to recover from the other party(ies) all of its reasonable attorneys' fees and
expenses relating to such action or proceeding and/or incurred in connection
with the preparation therefor.
9.6. WAIVER, ETC. The failure of the Company or the Holder to at any time
enforce any of the provisions of this Purchase Option shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Purchase Option or any provision hereof or the right of the
Company or any Holder to thereafter enforce each and every provision of this
Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of
any of the provisions of this Purchase Option shall be effective unless set
forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non- fulfillment shall be construed or deemed to be a waiver
of any other or subsequent breach or non-compliance.
20
9.7. EXECUTION IN COUNTERPARTS. This Purchase Option may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement, and shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
9.8. UNDERLYING WARRANTS. At any time after exercise by the Holder of this
Purchase Option, the Holder may exchange his Warrants (with an initial exercise
price of $7.50) for Public Warrants (with an initial exercise price of $6.00)
upon payment to the Company of the difference between the exercise price of his
Warrant and the exercise price of the Public Warrants. Any such Public Warrants
and the Common Stock underlying such Public Warrants shall constitute
Registrable Securities.
IN WITNESS WHEREOF, the Company has caused this Purchase Option to be
signed by its duly authorized officer as of the _________day of _________, 2006.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION
CORPORATION
By: _____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
21
Form to be used to exercise Purchase Option:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Date: ________________, 200___
The undersigned hereby elects irrevocably to exercise all or a portion of
the within Purchase Option and to purchase Units of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation and hereby makes payment of $_____ (at the rate of $_____ per Unit)
in payment of the Exercise Price pursuant thereto. Please issue the Common Stock
and Warrants as to which this Purchase Option is exercised in accordance with
the instructions given below.
or
The undersigned hereby elects irrevocably to convert its right to purchase
_____ Units purchasable under the within Purchase Option by surrender of the
unexercised portion of the attached Purchase Option (with a "VALUE" of $_____
based on a "CURRENT MARKET PRICE" of $_____). Please issue the securities
comprising the Units as to which this Purchase Option is exercised in accordance
with the instructions given below.
NOTICE: The signature to this exercise notice must correspond with the name
as written upon the face of the Purchase Option in every particular, without
alteration or any change whatever.
________________________________________
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15).
22
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
________________________________
Name
________________________________
(Print in Block Letters)
________________________________
________________________________
Address
23
Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the registered Holder
to effect a transfer of the within Purchase Option):
FOR VALUE RECEIVED, _______________________________ does hereby sell,
assign and transfer unto _______________________________ the right to purchase
____________ Units of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation ("COMPANY")
evidenced by the within Purchase Option and does hereby authorize the Company to
transfer such right on the books of the Company.
Dated: __________________, 200___
________________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Purchase Option in every particular, without
alteration or any change whatever.
________________________________________
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15).
24