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EXHIBIT 4.15
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.
NOT EXERCISABLE PRIOR TO JUNE __, 2000. VOID AFTER 5:00 P.M. EASTERN TIME,
JUNE __, 2004.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
2,000,000 UNITS
OF
OBJECTIVE COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $100.00 duly paid by
or on behalf of Southeast Research Partners, Inc. ("Holder"), as registered
owner of this Purchase Option, to Objective Communications, Inc. ("Company"),
Xxxxxx is entitled, at any time or from time to time at or after June __, 2000
("Commencement Date"), and at or before 5:00 p.m., Eastern Time, June __, 2004
("Expiration Date"), but not thereafter, to subscribe for, purchase and
receive, in whole or in part, up to 2,000,000 Units. Each Unit consists of
three shares of common stock, par value $.01 per share (?Common Stock"), of the
Company and two Redeemable Common Stock Purchase Warrants, each exercisable to
purchase one share of Common Stock ("Warrant(s)") during the period commencing
on June __, 2000 and expiring June __, 2004 (five years from the effective date
of the registration statement on Form SB-2, No. 333-72429 ("Registration
Statement"), pursuant to which the Company has registered Units, shares of
Common Stock and warrants to purchase Common Stock ("Effective Date"). Each
Warrant is the same as the warrants that have been registered for sale to the
public pursuant to the Registration Statement ("Public Warrants"). The Units,
shares of Common Stock and Warrants are sometimes collectively referred to
herein as the "Securities." If the Expiration Date is a day on which banking
institutions are authorized by law to close, then this Purchase Option may be
exercised on the next succeeding day which is not such a day in accordance with
the terms herein. During the period commencing on the date of issue of the
Purchase Option and ending on the Expiration Date, the Company agrees not to
take any action that would terminate this Purchase Option. This Purchase
Option is initially exercisable at $____ per Unit 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 and
the number of Units to be received upon such exercise, shall be adjusted as
therein
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specified. The term "Exercise Price" shall mean the initial exercise price or
the adjusted exercise price, depending on the context.
2. Exercise.
2.1. Exercise Form. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed and delivered
to the Company, together with this Purchase Option and payment of the Exercise
Price in cash or by certified check or official bank check for the Units being
purchased. If the subscription rights represented hereby shall not be
exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this
Purchase Option shall become void without further force or effect, and all
rights represented hereby shall cease and expire.
2.2. Legend. Each certificate for Securities purchased under this
Purchase Option shall bear a legend as follows unless such Securities have been
registered under the Securities Act of 1933, as amended ("Act"):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended
("Act"), or applicable state law. The securities may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act,
or pursuant to an exemption from registration under the Act
and applicable state law."
2.3. Conversion Right.
2.3.1. Determination of Amount. In lieu of the payment of
the Exercise Price 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 securities ("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 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 "Market Price" (as defined below). The "Value" of the portion of the
Purchase Option being converted shall equal the remainder derived from
subtracting (a) the Exercise Price multiplied by the number of Units underlying
the portion of the Purchase Option being converted from (b) the Market Price of
the Units, multiplied by the number of Units underlying the portion of the
Purchase Option being converted. As used herein, the term "Market Price" shall
be deemed to be the last reported sale price of the Units on the date prior to
the date the Conversion Right is exercised, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices for the
immediately preceding three trading days, in either case as officially reported
by the principal securities exchange on which the Units are listed or admitted
to trading, or, if the Units are not listed or admitted to trading on any
national securities exchange or if any such exchange on which the Units are
listed is not their principal trading market, the last reported sale price as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through the Nasdaq National Market or SmallCap Market, or, if applicable, the
OTC Bulletin Board, or if the Units are not listed or admitted to trading on
any of the foregoing markets, or similar organization, as determined in good
faith by resolution of the Board of Directors of the Company, based on the best
information available to it; provided, however, that if the Units are no longer
quoted on the principal trading market that the Common Stock is traded on, the
Market Price
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of the Units shall equal to three times the average last reported sale price of
the Common Stock for the five trading days immediately preceding such date
("Common Stock Price") plus two times the average last reported sale price of
the Public Warrants for the five trading days preceding such date, as quoted on
the principal trading market for such securities determined as described above;
and provided further that if the Common Stock is traded but the Public Warrants
are not, the Market Price of the units shall be equal to five times the Common
Stock Price less two times the then exercise price of the Warrants.
2.3.2. Exercise of Conversion Right. The Conversion 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 to the Company this
Purchase Option with a duly executed exercise form attached hereto with the
conversion section completed.
3. Transfer.
3.1. General Restrictions. The registered Holder of this Purchase
Option, by its acceptance hereof, agrees that it will not sell, transfer or
assign or hypothecate this Purchase Option prior to the Commencement Date to
anyone other than (i) an officer of Southeast Research Partners, Inc. ("SERP"
or the "Representative") or an officer or partner of any selected dealer that
executed the Selected Dealer Agreement between the Representative and the
members of the selling group ("Selected Dealer") or member of the underwriting
syndicate ("Underwriter") in connection with the Company's public offering with
respect to which this Purchase Option has been issued, or (ii) any Underwriter
or Selected Dealer. On and after the Commencement 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 immediately transfer this
Purchase Option on the books of the Company and shall execute and deliver a new
Purchase Option or Purchase Options of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the aggregate number of
Units purchasable hereunder or such portion of such number as shall be
contemplated by any such assignment.
3.2. Restrictions Imposed by the Act. This Purchase Option and the
Securities underlying this Purchase Option shall not be transferred unless and
until (i) the Company has received the opinion of counsel for the Holder that
this Purchase Option or the Securities, as the case may be, may be transferred
pursuant to an exemption from registration under the Act and applicable state
law, the availability of which is established to the reasonable satisfaction of
the Company (the Company hereby agreeing that the opinion of Graubard Xxxxxx &
Xxxxxx shall be deemed satisfactory evidence of the availability of an
exemption), or (ii) a registration statement relating to such Purchase Option
or Securities, as the case may be, has been filed by the Company and declared
effective by the Securities and Exchange Commission ("Commission") and is
effective at the time of such transfer and is in compliance with applicable
state law.
4. New Purchase Options to be Issued.
4.1. Partial Exercise, Conversion or Transfer. Subject to the
restrictions in Section 3 hereof, this Purchase Option may be exercised,
converted or assigned in whole or in part. In the event of the exercise,
conversion or assignment hereof in part only, upon surrender of this Purchase
Option for cancellation, together with the duly executed exercise or assignment
form and
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funds (except in the case of conversion) 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
aggregate number of Units purchasable hereunder as to which this Purchase
Option has not been exercised, converted 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, the Company
shall execute and deliver a new Purchase Option of like tenor and date. Any
such new Purchase Option executed and delivered as a result of such loss,
theft, mutilation or destruction shall constitute a substitute contractual
obligation on the part of the Company.
5. Registration Rights.
5.1. Demand Registration.
5.1.1. Grant of Right. The Company, upon written demand
("Initial Demand Notice") of the Holder(s) of at least 51% of the Purchase
Options and/or the underlying Units ("Majority Holders"), agrees to register,
on one occasion, all or any portion of the Purchase Options requested by the
Majority Holders in the Initial Demand Notice and all of the Securities
underlying such Purchase Options, including the Units, the 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 covering the Registrable Securities within 60 days after
receipt of the Initial Demand Notice and use its best efforts to have such
registration statement declared effective promptly thereafter. The demand for
registration may be made at any time during a period of four years beginning
one year from the Effective Date. The Company covenants and agrees to give
written notice of its receipt of any Initial Demand Notice by any Holder(s) to
all other registered Holders of the Purchase Options and/or the Registrable
Securities within ten days from the date of the receipt of any such Initial
Demand Notice.
5.1.2. Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. The Company agrees to use its best efforts to cause
the filing required herein to become effective promptly and to qualify or
register the Registrable Securities in such states as are reasonably requested
by the 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 register or license
to do business in such state or consent to general service of process 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 filed pursuant to the demand rights granted
under Section 5.1.1 to remain effective until all of the Registrable Securities
covered by such registration statement have been sold.
5.2. "Piggy-Back" Registration.
5.2.1. Grant of Right. In addition to the demand right of
registration, the Holders of the Purchase Options shall have the right at any
time for a period of six years commencing one
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year from the Effective Date to include the Registrable Securities as part of
any other registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a) promulgated under the
Act or pursuant to Form S-8 or any equivalent form); 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 that can be marketed (i) at a price reasonably related to their then
current market value, or (ii) without materially and adversely affecting the
entire offering, the Company shall nevertheless register all or any portion of
the Registrable Securities required to be so registered but such Registrable
Securities shall not be sold by the Holders until 180 days after the
registration statement for such offering has become effective and provided
further that, if any securities are registered for sale on behalf of other
stockholders in such offering and such stockholders have not agreed to defer
such sale until the expiration of such 180 day period, the number of securities
to be sold by all stockholders in such public offering during such 180 day
period shall be apportioned pro rata among all such selling stockholders,
including all holders of the Registrable Securities, according to the total
amount of securities of the Company owned by said selling stockholders,
including all holders of the Registrable Securities. Notwithstanding the
foregoing, the Holders acknowledge and agree that the Company has granted
registration rights to other holders of securities of the Company that pre-date
the rights granted under this Purchase Option as of the initial date of
issuance of the Purchase Option by the Company, and each Holder agrees that
nothing in this Purchase Option shall obligate the Company to violate those
existing agreements.
5.2.2. Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of 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 60 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 registration statement filed by the Company until such time
as all of the Registrable Securities have been sold by the Holder. The holders
of the Registrable Securities shall exercise the "piggy-back" rights provided
for herein by giving written notice within 15 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
"piggy-back" rights to remain effective until all of the Registrable Securities
covered by such registration statement have been sold.
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 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 any claim whatsoever) to which any of them may become subject under the
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 Underwriters contained in
Section 5 of the Underwriting Agreement between the Underwriters and the
Company, dated the Effective
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Date; except to the extent that any loss, claim, damage, expense or liability
arises out of or relates to written information furnished by or on behalf of
the Holders, or their successors or assigns, for specific inclusion in such
registration statement. 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 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 of the Underwriting
Agreement pursuant to which the Underwriters have agreed to indemnify the
Company.
5.3.2. Exercise of Purchase Option or Warrants. Nothing
contained in this Purchase Option shall be construed as requiring the Holder(s)
to exercise their Purchase Options or the underlying Warrants 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
deliver promptly to each Holder participating in any of the foregoing offerings
requesting the correspondence and memoranda described below and to the managing
underwriter 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 each Holder and underwriter 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 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 any such
Holder shall reasonably request. The Company also shall furnish to each Holder
participating in any of the foregoing offerings that are underwritten, and to
each underwriter of any such offering, a signed counterpart, addressed to such
Holder and underwriter, of (i) an opinion of counsel to the Company, dated the
effective date of such registration statement (and an opinion dated the date of
the closing under the underwriting agreement relating to such offering), and
(ii) a "cold comfort" letter dated the effective date of such registration
statement (and 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. In the event that any Holder
requests information pursuant to this Section 5.3.3, then, prior to furnishing
such information, the Company shall have the right to require the Holder to
enter into a confidentiality agreement with the Company with respect to any
information to be provided to the Holder that the Company reasonably considers
to be proprietary, non-public or otherwise confidential.
5.3.4. Underwriting Agreement. In the event that the demand
registration filed by the Holders pursuant to Section 5.1.1 is for an
underwritten offering, then the Majority Holders shall have the right to select
the underwriters of the offering. The Company shall enter into an underwriting
agreement with the managing underwriter selected by the Majority Holders whose
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Registrable Securities are being registered pursuant to Section 5.1. Such
agreement shall be reasonably satisfactory in form and substance to the
Company, each Holder and such managing underwriter, 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
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 of the representations, warranties and
covenants of the Company to or for the benefit of such underwriter 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 underwriter except as they may relate to such Holders, their
shares and their intended methods of distribution.
5.3.5. Documents to be Delivered by Xxxxxx(s). Each of the
Holder(s) 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 security holders
("Questionnaire"). In the event that the Company requests completed
Questionnaires from Holders participating in any of the foregoing offerings
necessary for inclusion in the registration statement, and a Holder does not
provide the Company with a completed Questionnaire within the time period
requested (which time period shall be reasonable), then the Company shall have
the right to exclude the Registrable Securities held by any such Holder from
the registration statement filed with respect to the Registrable Securities.
If no Holder of Registrable Securities timely responds to the Company's request
for information, then the Company shall not be obligated to file such
registration statement, provided, however, that the obligations of the Company
with respect to filing a registration statement upon a demand request shall be
reinstated upon the subsequent filing of a demand request by a Holder.
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, Recapitalization, Reclassification,
Split-Ups. If after the date hereof, and subject to the provisions of Section
6.2 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,
recapitalization or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of Units issuable on
exercise of this Purchase Option shall be increased in proportion to such
increase in outstanding shares; provided, however, that nothing in this section
is intended to provide for adjustment with respect to the Warrants beyond that
provided for in the Warrant Agreement between the Company and Continental Stock
Transfer & Trust Company. 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 1,000 Units at $7.50 per Unit (each Warrant underlying the Units
exercisable for $4.00 per share), upon effectiveness of the dividend, this
Purchase Option will be adjusted to allow for the purchase of 2,000 Units at
$3.75 per Unit (each Warrant underlying the Units exercisable for $2.00 per
share).
6.1.2. Aggregation of Shares. If after the date hereof, and
subject to the provisions of Section 6.2, 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,
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then, upon the effective date thereof, the number of Units issuable on exercise
of this Purchase Option shall be decreased in proportion to such decrease in
outstanding shares.
6.1.3. Adjustments in Exercise Price. Whenever the number
of Units issuable upon exercise of this Purchase Option is adjusted, as
provided in this Section 6.1, the Exercise Price shall be adjusted (to the
nearest cent) by multiplying such Exercise Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of
Units purchasable upon the exercise of this Purchase Option immediately prior
to such adjustment, and (y) the denominator of which shall be the number of
Units so purchasable immediately thereafter.
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 6.1.2 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, 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.
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 a prior adjustment
or the computation thereof.
6.2. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of Units upon the
exercise or transfer of this 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 Units 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, the Units or the
Warrants, 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
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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 Units issuable upon exercise
of this Purchase Option 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 shareholder. As long as the Purchase
Options shall be outstanding, the Company shall use its best efforts to cause
all (i) Units, (ii) shares of Common Stock underlying the Units issuable upon
exercise of the Purchase Options, (iii) Warrants underlying the Units issuable
upon exercise of the Purchase Options, and (iv) shares of Common Stock issuable
upon exercise of the Warrants underlying the Units to be listed (subject to
official notice of issuance) on all securities exchanges (or, if applicable on
Nasdaq) on which the Units, the Common Stock or the Warrants issued to the
public in connection herewith are then listed and/or quoted.
8. Certain Notice Requirements.
8.1. Xxxxxx'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 each Holder written notice of such event at
least 10 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 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: (iii) 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 payable otherwise than in cash, or a cash dividend or
distribution, or (iv) 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 (v) 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 on the date of delivery if delivered
personally or sent by overnight courier, with acknowledgment of receipt to the
party to which notice is given, or on the fifth day after mailing if mailed to
the party to whom
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notice is to be given, by registered or certified mail, return receipt
requested, postage prepaid and properly addressed as follows: (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 its principal
executive office.
9. Miscellaneous.
9.1. Amendments. The Company and the Representative 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 which 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 the Representative may deem
necessary or desirable and that the Company and the Representative deem shall
not adversely affect the interests of the Holders. All other modifications or
amendments shall require the written consent of 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
respective successors, legal representatives 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 of the United States of
America 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 8.4 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 agrees 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
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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 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. Exchange Agreement. As a condition of the Holder's receipt
and acceptance of this Purchase Option, Xxxxxx agrees that, at any time prior
to the complete exercise of this Purchase Option by Holder, if the Company and
Research Partners International, Inc. enter into an agreement ("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 the
Holder shall agree to such exchange and become a party to the Exchange
Agreement.
9.9. Representative's Right to Assign. Notwithstanding the
provisions of Section 3 of this Agreement, and without the consent of the
Company or any of the Holders, the Representative shall be entitled at any time
to assign any of its rights or duties hereunder, including pursuant to Section
9.1, to any registered broker-dealer a majority of the outstanding equity
securities of which is owned by Research Partners International, Inc.
IN WITNESS WHEREOF, the Company has caused this Purchase Option to be
signed by its duly authorized officer as of the ____ day of June, 1999.
Objective Communications, Inc.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
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Form to be used to exercise Purchase Option:
Objective Communications, Inc.
00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Date:_________________, _____
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase ________ Units of Objective
Communications, Inc. 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.
If, on the date of exercise, the common stock and warrants
issuable upon exercise of this Purchase Option are not covered by a
registration statement filed with the Securities and Exchange Commission that
is then effective, the Holder hereby represents and warrants to the Company, as
of the date on which this Purchase Option is exercised in whole or in part, as
follows:
(1) Holder has such experience in business and financial
matters that it is capable of evaluating the merits and risks of an investment
in the common stock and warrants purchased upon exercise of the Purchase
Option. Holder is purchasing the common stock and warrants for its own account
and not with a view to distribution and has no present intention or arrangement
to sell the shares of common stock and warrants to or through any person or
entity. The Holder understands that the common stock and warrants must be held
indefinitely unless such securities are subsequently registered under the Act
or an exemption therefrom is available. The Holder is aware of the provisions
of Regulation D and Rule 144 promulgated under the Act.
(2) Holder understands and acknowledges that the common
stock and warrants have not been registered under the Act, and are being
offered and sold to it in reliance on the exemption provided by Section 4(2) of
the Securities Act and that the Company is relying on the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of the Holder set forth herein in order to determine the availability of such
provisions. The Holder acknowledges that it is familiar with the nature of the
limitations imposed by the Securities Act and the rules and regulations
thereunder relating to the transfer of securities.
or
The undersigned hereby elects irrevocably to convert the
Purchase Option to purchase __________________ Units into _________________
Units of Objective Communications, Inc. The portion of this Purchase Option
being converted has a "Value" of $_______________ based on a "Market
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Price" of $___________ per share of common stock. Please issue the common
stock in accordance with the instructions given below.
---------------------------------
Signature
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.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
--------------------------------------------------------------
(Print in Block Letters)
Address
--------------------------------------------------------------
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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 _______________________ shares of common stock of Objective
Communications, Inc. ("Company") evidenced by the within Purchase Option and
does hereby authorize the Company to transfer such right on the books of the
Company.
The name and address of the person or entity to which the
Purchase Option is being transferred is as follows:
Name:
---------------------------------------------------------------
Name of Contact (if entity):
----------------------------------------
Address:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
Telephone:
----------------------------------------------------------
Facsimile:
----------------------------------------------------------
Dated:___________________, 19__
-----------------------------------
Signature
STATE OF )
: ss.:
COUNTY OF )
On this ______ day of ______________, ____, before me personally came
___________ ____________, to me known, who, being by me duly sworn, did depose
and say that he executed the foregoing assignment on his own behalf.
--------------------------------------------
Notary Public
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or
STATE OF )
: ss.:
COUNTY OF )
On this ______ day of ______________, ____, before me personally came
___________ ____________, to me known, who, being by me duly sworn, did depose
and say that he is the ___________________ of _________________________ and
executed the foregoing assignment on behalf of ______________________________.
--------------------------------------------
Notary Public
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.
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