EXHIBIT 10.7
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) MAXIM GROUP LLC ("MAXIM") OR ITS AFFILIATES OR AN UNDERWRITER OR A
SELECTED DEALER IN CONNECTION WITH THE OFFERING (DEFINED HEREIN), OR (II) A BONA
FIDE OFFICER, PARTNER OR EMPLOYEE OF MAXIM OR OF ANY SUCH UNDERWRITER OR
SELECTED DEALER.
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF (I) _____________,
2008 AND (II) THE CONSUMMATION BY ALPHA SECURITY GROUP CORPORATION (THE
"COMPANY") OF A MERGER, CAPITAL STOCK EXCHANGE, ASSET ACQUISITION OR OTHER
SIMILAR BUSINESS COMBINATION (A "BUSINESS COMBINATION") (AS DESCRIBED MORE FULLY
IN THE COMPANY'S REGISTRATION STATEMENT (AS DEFINED HEREIN)). THIS PURCHASE
OPTION SHALL BE VOID AFTER 5:00 P.M, NEW YORK CITY LOCAL TIME, ON _____________,
2012.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
420,000 UNITS
OF
ALPHA SECURITY GROUP CORPORATION
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $100 duly paid by or on behalf
of ________________ (collectively, with its successors and permitted assigns
and/or transferees, the "HOLDER"), as registered owner of this Purchase Option,
to Alpha Security Group Corporation (the "COMPANY"), Holder is entitled, at any
time or from time to time after the closing of the Offering (as defined below)
and during the period commencing (the "COMMENCEMENT DATE") on the later of: (i)
the consummation of a Business Combination and (ii) ____________, 2008 [one
year from effective date of registration statement], and expiring (the
"EXPIRATION DATE") at or before 5:00 p.m., New York City local time,
____________, 2012, but not thereafter, to subscribe for, purchase and receive,
in whole or in part, up to Two Hundred and Ten Thousand (210,000) units (the
"UNITS") of the Company, each Unit consisting of one share of common stock of
the Company, par value $.0001 per share (the "COMMON STOCK"), and one warrant
(the "WARRANT") to purchase one share of Common Stock expiring five years from
the effective date (the "EFFECTIVE DATE") of the registration statement (the
"REGISTRATION STATEMENT") pursuant to which Units are offered for sale to the
public (the "OFFERING"). Each Warrant is on the same terms and conditions as the
warrants underlying the Units being registered for sale to the public by way of
the Registration Statement. If the Expiration Date is a day on which banking
institutions are authorized by law to close, then this Purchase Option shall
expire on the next succeeding day that 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 $11.00 per Unit (the "EXERCISE
PRICE"). The number of Units purchasable hereunder and the Exercise Price are
subject to adjustment as provided in this Purchase Option.
2. Exercise.
2.1 Exercise. This Purchase Option may be exercised by the Holder in
whole or in part at any time or in part from time to time on or after the
Commencement Date and before the Expiration Date by: (x) surrendering this
Purchase Option to the Company, (y) delivering a subscription form in the
attached hereto as Annex I (duly executed by the Holder) and (z) making payment
of the Exercise Price in cash, certified or official bank check payable to the
order of the Company or wire transfer of immediately available funds (to an
account designated by the Company), in any case in an amount obtained by
multiplying (a) the number of Units designated by the Holder in the subscription
form by (b) the Exercise Price then in effect. In the event of a partial
exercise or assignment hereof, the Company shall issue and deliver to or upon
the order of the Holder a new Purchase Option of like tenor, in the name of the
Holder or as the Holder (upon payment by the Holder of applicable transfer
taxes) may request, evidencing the right to purchase the aggregate number of
Units for which such Purchase Option may still be exercised. 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 automatically
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 Units issued upon exercise of this
Purchase Option and each certificate representing the underlying Common Stock
and Warrants and the Common Stock issuable upon exercise of the underlying
Warrants (the "WARRANT SHARES") shall bear a legend as follows, unless such
Units, Common Stock, Warrants and/or Warrant Shares (collectively, the
"SECURITIES") have been registered under the Securities Act of 1933, as amended
(the "ACT"):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS
CORPORATION, IS AVAILABLE."
2
2.3 Cashless Exercise. 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 (the "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) of the portion of the Purchase Option being converted. 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 (as defined below) 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: (A) in the
event that neither the Units nor 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 Warrants are
still trading, (i) if the Units are listed on a national securities exchange or
quoted on the Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin
Board (or successor such as the Bulletin Board Exchange), the average of 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, for the ten
trading days ending on the third business day prior to exercise; or (ii) if the
Units are not listed on a national securities exchange or quoted on the Nasdaq
Global Market, Nasdaq Capital Market or the NASD OTC Bulletin Board (or
successor exchange), but is traded in the residual over-the-counter market, the
average of the closing bid price for Units for the ten trading days ending on
the third business day prior to exercise 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 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 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
Warrants, as the case may be) is listed on a national securities exchange or
quoted on the Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin
Board (or successor such as the Bulletin Board Exchange), the average of the
last sale price of the Common Stock (or Warrants) in the principal trading
market for the Common Stock as reported by the exchange, Nasdaq or the NASD, as
the case may be, for the ten trading days ending on the third business day prior
to exercise; (ii) if the Common Stock (or Warrants, as the case may be) is not
listed on a national securities exchange or quoted on the Nasdaq Global Market,
Nasdaq Capital Market or the NASD OTC Bulletin Board (or successor exchange),
but is traded in the residual over-the-counter market, the average of the
closing bid price for the Common Stock (or Warrants) for the ten trading days
ending on the third business day prior to exercise 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.
3
2.4 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.
2.5 No Cash Settlement. Notwithstanding anything to the contrary
contained in this Purchase Option, under no circumstances will the Company be
required to net cash settle the exercise of the Purchase Option.
2.6 Effective Registration Statement. This Purchase Option
is exercisable only during those periods of time in which the Company maintains
the effectiveness of the Registration Statement. If the Company fails to
maintain the effectiveness of the Registration Statement, this Purchase Option
may expire unexercised or unredeemed.
3. Transfer.
3.1 General Restrictions. Holder agrees that, pursuant to NASD Rule
2710(g)(1), it will not sell this Purchase Option during the Company's Offering,
nor shall such Holder sell, transfer, assign, pledge, hypothecate or otherwise
dispose of this Purchase Option (including the Securities hereunder) or cause
this Purchase Option or the Securities hereunder to be the subject of any
hedging, short sale, derivative, put or call transaction that would result in
the effective economic disposition of this Purchase Option or the Securities
hereunder, except as provided for in NASD Rule 2710(g)(2). Furthermore, ▇▇▇▇▇▇
agrees that it will not sell, transfer, assign, pledge or hypothecate this
Purchase Option for a period of eighteen (18) months following the Effective
Date.
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C. 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 (the "SEC") 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 order to make any permitted assignment or transfer, the Holder must
deliver to the Company the assignment form attached hereto as ▇▇▇▇▇ ▇▇ 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 (5) 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 or transfer.
4
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 (an "DEMAND
NOTICE") of the Holder(s) of at least 51% (the "MAJORITY HOLDERS") of the
Purchase Options and/or the underlying Units and/or the underlying Securities,
agrees to register all or any portion of the Purchase Option and the underlying
Securities (collectively, the "REGISTRABLE SECURITIES") as requested by the
Majority Holders. The Company will file a registration statement or a
post-effective amendment to the Registration Statement covering the Registrable
Securities within sixty (60) 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, subject to
compliance with review by the SEC. The demand for registration may be made at
any time during a period of five (5) years beginning on the Effective Date. The
Company covenants and agrees to give written notice of its receipt of any Demand
Notice by any Holder(s) to all other registered Holders of the Purchase Options
and/or the Registrable Securities within ten (10) days from the date of the
receipt of any such Demand Notice.
5.1.2 Terms. The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, including the expenses of one legal
counsel selected by the Holders to represent them in connection with the
registration 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 two (2) years from the
effective date of such registration statement or post-effective amendment.
5
5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. If at any time during a period of seven (7) years
commencing on the Effective Date when there is not an effective registration
statement covering all of the Registrable Securities, the Company shall
determine to prepare and file with the SEC a registration statement relating to
an offering under the Act of any of its securities, other than pursuant to SEC
Form S-4 or S-8 or any equivalent form, the Company, upon the request of any
Holder, as described below, shall cause the registration under the Act of the
Registrable Securities as part of any such registration statement filed by the
Company; 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 (the "MAXIMUM NUMBER OF SHARES") 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
shall include in any such registration:
(i) 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, if any, including
the Registrable Securities, as to which registration has been requested pursuant
to written contractual piggy-back registration rights of security holders (pro
rata in accordance with the number of shares of Common Stock which each such
person has actually requested to be included in such registration, regardless of
the number of shares of Common Stock with respect to which such persons have the
right to request such inclusion) that can be sold without exceeding the Maximum
Number of Shares; and
(ii) If the registration is a "demand" registration undertaken at the
demand of persons other than the holders of Registrable Securities pursuant to
written contractual arrangements with such persons, (A) first, the shares of
Common Stock 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; and (C) third,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A) and (B), the Registrable Securities as to which
registration has been requested under this Section 5.2 (pro rata in accordance
with the number of shares of Registrable Securities held by each such holder);
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, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which other shareholders desire to
sell that can be sold without exceeding the Maximum Number of Shares.
6
5.2.2 Terms. The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, including the reasonable expenses of one
legal counsel selected by the Holders to represent them in connection with the
registration 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 (15) 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. The Company agrees,
at its sole expense, 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.
5.3 Equitable Relief. Should the registration or the effectiveness
thereof required by Sections 5.1 and 5.2 hereof be delayed by the Company or the
Company otherwise materially fails to comply with such provisions, the Company
shall, in addition to any other equitable or other relief available to the
Holder(s), be liable for any and all incidental, special and consequential
damages sustained by the Holder(s), including, but not limited to, the loss of
any profits that might have been received by the holder upon the sale of shares
of Common Stock or Warrants (and shares of Common Stock underlying the Warrants)
underlying this Purchase Option.
5.4 General Terms.
5.4.1 Indemnification. The Company shall, notwithstanding any
termination of this Purchase Option, indemnify and hold harmless each Holder,
the officers, directors, agents, brokers, investment advisors and employees of
each of them 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 (the "EXCHANGE ACT"), and the officers, directors, agents
and employees of such controlling person, to the fullest extent permitted by
applicable law, from and 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, arising out of or relating to such registration
statement filed pursuant to this Section 5 and any prospectus contained in the
registration statement or in any amendment or supplement thereto, except only to
the same extent and with the same effect as the provisions pursuant to which the
Company has agreed to indemnify the underwriters contained in Section 5.1 of the
Underwriting Agreement between the Company, Maxim and the other underwriters
named therein dated the Effective Date. Each Holder 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 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 or defending against any claim whatsoever) to which
they may become subject under the 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
5.2 of the Underwriting Agreement pursuant to which the underwriters have agreed
to indemnify the Company.
7
5.4.2 Exercise of Purchase Options. Nothing contained in this Purchase
Option shall be construed as requiring any Holder to exercise their Purchase
Options or Warrants underlying such Purchase Options prior to or after the
filing of any registration statement or the effectiveness thereof.
5.4.3 Documents Delivered to Holders. The Company shall furnish Maxim,
as representative of 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 Maxim, as representative of 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 Maxim, as
representative of 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. (the "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 Maxim, as representative of the Holders,
shall reasonably request. The Company shall not be required to disclose any
confidential information or other records to Maxim, as representative of the
Holders, or to any other person, 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.
8
5.4.4 Documents to be Delivered by ▇▇▇▇▇▇(s). Each Holder participating
in any of the foregoing offerings shall furnish to the Company a completed and
executed questionnaire provided by the Company requesting information
customarily sought of selling securityholders.
5.4.5 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 and its legal counsel, 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.
5.4.6 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 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).
5.4.7 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 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 Holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
9
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, 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 $11.00 per whole Unit
(each Warrant underlying the Units is exercisable for $8.00 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow
for the purchase of one Unit at $11.00 per Unit, each Unit entitling the holder
to receive two shares of Common Stock and four Warrants (each Warrant
exercisable for $4.00 per share).
6.1.2 Aggregation of Shares. If after the date hereof, 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.
6.1.3 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 6.1.2 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 6.1.2, then such adjustment shall be made pursuant to Sections
6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
10
6.1.4 Changes in Form of Purchase Option. This form of Purchase Option
need not be changed because of any change pursuant to this Section, and the
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.
6.2 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 be eliminated by
rounding any fraction up or down to the nearest whole number of Warrants, shares
of Common Stock or other securities, properties or rights.
11
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, (ii) Warrants issuable upon exercise of the Purchase Options and (iii)
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 Global Market, Nasdaq Capital Market, NASD OTC Bulletin Board or any
successor trading market) on which the Units, the Common Stock or the Warrants
may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder'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 (15) 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 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, 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,
exercisable for 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 or a merger of the Company wherein the separate existence of
the Company shall cease 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 (a "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.
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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, mailed by express mail or
private courier service, or sent by facsimile transmission, with confirmation of
receipt: (i) If to the registered Holder of the Purchase Option, to the address
and/or fax number of such Holder as shown on the books of the Company, or (ii)
if to the Company, to the following address or fax number or to such other
address or and fax number as the Company may designate by notice to the Holders:
Alpha Security Group Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. Miscellaneous.
9.1 Amendments. The Company and Maxim 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 and Maxim may deem necessary or desirable and
that the Company and ▇▇▇▇▇ ▇▇▇▇ 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.
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.
13
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. Each of the
Company and Maxim agree 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 located in New York County or of
the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the Company and Maxim 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, non-compliance or non-fulfillment.
9.7 Execution. It is agreed that deliver of the Company's signature
hereon by facsimile or other electronic method of delivery shall constitute a
valid signature and delivery.
9.8 Exchange Agreement. As a condition of the Holder's receipt and
acceptance of this Purchase Option, ▇▇▇▇▇▇ agrees that, at any time prior to the
complete exercise of this Purchase Option by Holder, if the Company and Maxim
enter into an agreement (an "EXCHANGE AGREEMENT") pursuant to which they agree
that all outstanding Purchase Options will be exchanged for securities or cash
or a combination of both, then Holder shall agree to such exchange and become a
party to the Exchange Agreement.
9.9 Underlying Warrants. At any time after exercise by the Holder of
this Purchase Option, the Holder may exchange his Warrants for Public Warrants
upon payment to the Company of the difference between the exercise price of his
Warrant and the exercise price of the Public Warrants, if any.
[Signature Page Follows]
14
IN WITNESS WHEREOF, the Company has caused this Purchase
Option to be signed by its duly authorized officer as of the __th day of
_________, ____.
ALPHA SECURITY GROUP CORPORATION
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
15
ANNEX I
Form to be used to exercise Purchase Option
ALPHA SECURITY GROUP CORPORATION
-------------------------
-------------------------
Date:_________________, 200__
The undersigned hereby elects irrevocably to exercise all or a portion
of the within Purchase Option and to purchase ____ Units of Alpha Security Group
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" based of $_______ based on a "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.
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Signature
------------------------
Signature Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name_____________________________________________________________
(Print in Block Letters)
Address__________________________________________________________
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON A
REGISTERED NATIONAL SECURITIES EXCHANGE.
ANNEX II
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 Alpha Security Group Corporation (the
"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
----------------------
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON A
REGISTERED NATIONAL SECURITIES EXCHANGE.