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,...
Exhibit 4.6
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 SIX MONTHS 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 [SIX MONTHS FROM
EFFECTIVE DATE] AND (II) THE CONSUMMATION BY SEANERGY MARITIME CORP. (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 [FIVE YEARS
FROM EFFECTIVE DATE].
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
750,000 UNITS
OF
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $100 duly paid by or on behalf of Maxim Group LLC
(collectively, with its successors and permitted assigns and/or transferees, the “Holder”), as
registered owner of this Purchase Option, to Seanergy Maritime Corp. (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 [six months from the effective date of the registration
statement], and expiring (the “Expiration Date”) at or before 5:00 p.m., New York City local time,
, 2012 [five years from effective date of the registration statement], but not thereafter, to
subscribe for, purchase and receive, in whole or in part, up to Seven Hundred Fifty Thousand
(750,000) 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 $12.50 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
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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.”
2.3 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 less the Exercise Price for the Unit plus the current Market Price of the
Common Stock underlying the 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 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
3
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 closing bid price for the Common Stock
(or Warrants) on the last trading day preceding the date in question for which such quotations are
reported by the Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the fair
market value of the Common Stock cannot be determined pursuant to clause (i) or (ii) above, such
price as the Board of Directors of the Company shall determine, in good faith.
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 or the Warrants underlying the Purchase Option.
2.6 Effective Registration Statement. The Warrants underlying this Purchase Option
are 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, the Warrants underlying this Purchase Option may expire worthless.
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).
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 Xxxx & Xxxx
LLP shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a
registration statement or a post-effective amendment to the Registration Statement relating to such
Securities has been filed by the Company and declared effective by the Securities and Exchange
Commission (the “SEC”) and compliance with applicable state securities law has been established.
4
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 Xxxxx XX 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.
4.2 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
5
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.
5.2 “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
6
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.
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 General Terms.
5.3.1 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
7
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.
5.3.2 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.
5.3.3 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
5.3.4 Documents to be Delivered by Xxxxxx(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.
5.3.5 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.
5.3.6 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).
5.3.7 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 Xxxxxx’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
9
Xxxxxx’s possession, of the prospectus covering such Registrable Securities current at the
time of receipt of such notice.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the
number of Units underlying the Purchase Option shall be subject to adjustment from time to time as
hereinafter set forth:
6.1.1 Stock Dividends — Split-Ups. If after the date hereof, 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 $12.50 per whole
Unit (each Warrant underlying the Units is exercisable for $6.50 per share), upon effectiveness of
the dividend, this Purchase Option will be adjusted to allow for the purchase of one Unit at $12.50
per Unit, each Unit entitling the holder to receive two shares of Common Stock and two Warrants
(each Warrant exercisable for $3.25 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
10
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.
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.
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
11
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.
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
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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:
Seanergy Maritime Corp.
00, Xxxxxxxxx Xxxxxx
00000 X. Xxxxxx
Xxxxxx, Xxxxxx
Attn: Xxxxxxxx Xxxxxxxxxxxxxx
Fax No.:
00, Xxxxxxxxx Xxxxxx
00000 X. Xxxxxx
Xxxxxx, Xxxxxx
Attn: Xxxxxxxx Xxxxxxxxxxxxxx
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 Xxxxx
xxxx 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.
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
13
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, Xxxxxx 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.
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IN WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by its duly
authorized officer as of the ___th day of , 2007.
| SEANERGY MARITIME CORP. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
15
Annex I
Form to be used to exercise Purchase Option
Date: , 200__
The undersigned hereby elects irrevocably to exercise all or a portion of the within Purchase
Option and to purchase ___Units of Seanergy Maritime Corp. 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.
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.
Xxxxx XX
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
Seanergy Maritime Corp. (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.
