WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this
“Agreement”)
entered into as of the 5th day of
September, 2008, by and between Pier Acquisition II, Inc., a Delaware
corporation with an address at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (the
“Company”)
and [Name and Address of Purchaser] (the “Purchaser”).
WHEREAS,
the Purchaser desires to purchase, and the Company desires to sell, a warrant in
the form attached hereto as Exhibit A (the “Warrant”)
to purchase [Number of Shares] (the “Shares”)
of the Company’s common stock, par value $.0001 per share (the “Common
Stock”), upon the terms and conditions hereof.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the Purchaser and the Company hereby agree as follows:
SECTION
1: SALE OF THE WARRANT
1.1 Sale of the
Warrant. Subject to the terms and conditions hereof, the
Company will sell and deliver to the Purchaser and the Purchaser will purchase
from the Company, upon the execution and delivery hereof, the Warrant for a
purchase price equal to [Purchase Price] (the “Purchase
Price”).
SECTION
2: CLOSING DATE; DELIVERY
2.1 Closing
Date. The closing of the purchase and sale of the Warrant
hereunder (the “Closing”)
shall be held immediately following the execution and delivery of this
Agreement.
2.2 Delivery at Closing.
At the Closing, the Company will deliver to the Purchaser the Warrant in the
Purchaser’s name, representing the right to purchase the Shares to be purchased
by Purchaser hereunder, against payment of the Purchase Price.
SECTION
3: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The
undersigned Purchaser hereby represents and warrants to the Company as
follows:
3.1 Transfer
Restrictions. Neither the Warrant, nor, upon issuance, the
Shares, has been registered under the Securities Act of 1933, as amended (the
“Securities
Act”) and cannot be sold or otherwise transferred without an effective
registration or an exemption therefrom, but may not be sold pursuant to the
exemptions provided by Section 4(1) of the Securities Act in accordance with the
letter from Xxxxxxx X. Xxxxx, Chief of the Office of Small Business Policy of
the Securities and Exchange Commission’s Division of Corporation Finance, to Xxx
Worm of NASD Regulation, Inc., dated January 21, 2000.
3.2 Experience. The
undersigned has such knowledge and experience in financial and business matters
that the undersigned is capable of evaluating the merits and risks of investment
in the Company and of making an informed investment decision. The
undersigned has adequate means of providing for the undersigned's current needs
and possible future contingencies and the undersigned has no need, and
anticipates no need in the foreseeable future, to sell the Warrant for which the
undersigned subscribes or, upon issuance, the Shares. The undersigned
is able to bear the economic risks of this investment and, consequently, without
limiting the generality of the foregoing, the undersigned is able to hold the
Warrant or, upon issuance, the Shares, for an indefinite period of time and has
sufficient net worth to sustain a loss of the undersigned's entire investment in
the Company in the event such loss should occur. Except as otherwise indicated
herein, the undersigned is the sole party in interest as to its investment in
the Company, and it is acquiring the Warrant solely for investment for the
undersigned’s own account and has no present agreement, understanding or
arrangement to subdivide, sell, assign, transfer or otherwise dispose of all or
any part of the Warrant subscribed for or, upon issuance, the Shares, to any
other person.
3.3 Investment; Access to
Data. The undersigned has carefully reviewed and understands
the risks of, and other considerations relating to, a purchase of the Warrant
and the underlying Shares and an investment in the Company. The undersigned has
been furnished materials relating to the Company, the private placement of the
Warrants or anything else that it has requested and has been afforded the
opportunity to ask questions and receive answers concerning the terms and
conditions of the offering and obtain any additional information which the
Company possesses or can acquire without unreasonable effort or
expense. Representatives of the Company have answered all inquiries
that the undersigned has made of them concerning the Company, or any other
matters relating to the formation and operation of the Company and the offering
and sale of the Warrants.The undersigned has not been furnished any offering
literature other than the materials that the Company may have provided at the
request of the undersigned; and the undersigned has relied only on such
information furnished or made available to the undersigned by the Company as
described in this Section. The undersigned is acquiring the Warrant for
investment for the undersigned's own account, not as a nominee or agent and not
with the view to, or for resale in connection with, any distribution
thereof. The undersigned acknowledges that the Company is a start-up
company with no current operations, assets or operating history, which may
possibly cause a loss of Purchaser’s entire investment in the
Company.
3.4 Authorization. (a)
This Agreement, upon execution and delivery thereof, will be a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally.
(b) The
execution, delivery and performance by Purchaser of this Agreement and
compliance therewith and the purchase and sale of the Warrant will not result in
a violation of and will not conflict with, or result in a breach of, any of the
terms of, or constitute a default under, any provision of state or Federal law
to which Purchaser is subject, or any mortgage, indenture, agreement,
instrument, judgment, decree, order, rule or regulation or other restriction to
which the Purchaser is a party or by which the undersigned Purchaser is bound,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Purchaser pursuant to any such
term.
3.5 Accredited
Investor. Purchaser is an accredited investor as defined in
Rule 501(a) of Regulation D under the Securities Act.
SECTION
4: MISCELLANEOUS
4.1 Governing
Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware, without regard to conflicts of laws principles
thereof.
4.2 Survival. The
terms, conditions and agreements made herein shall survive the
Closing.
4.3 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
4.4 Entire Agreement; Amendment;
Waiver. This Agreement constitutes the entire and full
understanding and agreement between the parties with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by all the parties hereto.
4.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together, shall constitute one
instrument.
IN WITNESS WHEREOF, the
undersigned have hereunto set their hands as of the day and year first above
written.
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By:
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Xxxxxx
X. Xxxx
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President
and Director
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PURCHASER
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By:
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Name:
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