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
4.5
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES
THAT
IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN
PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT
WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR
A
PERIOD OF 180 DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) IN ACCORDANCE
WITH NASD RULE 2710(g)(1) TO ANYONE OTHER THAN (I) MAXIM GROUP LLC AND ITS
AFFILIATES ("MAXIM") 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) THE CONSUMMATION
BY
PINPOINT ADVANCE CORP. ("COMPANY") OF A MERGER, CAPITAL STOCK EXCHANGE, ASSET
OR
STOCK ACQUISITION OR OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS COMBINATION")
(AS DESCRIBED MORE FULLY IN THE COMPANY'S REGISTRATION STATEMENT (DEFINED
HEREIN)) AND (II) ______________, 2007 (180 DAYS FROM THE DATE HEREOF). THIS
PURCHASE OPTION SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME, _____________,
2012.
UNIT
PURCHASE OPTION
FOR
THE
PURCHASE OF
125,000
UNITS
OF
PINPONT
ADVANCE CORP.
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
Pinpoint Advance Corp. (the "Company"), Holder is entitled, at any time or
from
time to time upon the later of (i) the consummation of a Business Combination
and (ii) ____________, 2007 (180 days from the date hereof) ("Commencement
Date"), and at or before 5:00 p.m., Eastern Time, ____________, 2012
("Expiration Date"), but not thereafter, to subscribe for, purchase and receive,
in whole or in part, up to One Hundred and Twenty Five Thousand (125,000)
units
(the "Units") of the Company, each Unit consisting of one share of common
stock
of the Company, par value $0.0001 per share (the "Common Stock"), and one
warrant (the "Warrant") expiring five years from the effective date ("Effective
Date") of the registration statement ("Registration Statement") pursuant
to
which Units are offered for sale to the public (the "Offering"). Each Warrant
contains the same terms and conditions as the warrants included in the Units
being registered for sale to the public by way of the Registration Statement
(the "Public Warrants"), including that the Warrants underlying the Units
comprising this Purchase Option have an exercise price of $7.50 per share.
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
ending on the Expiration Date, the Company agrees not to take any action
that
would terminate the Purchase Option. This Purchase Option is initially
exercisable at $11.00 per Unit so purchased; provided, however, that upon
the
occurrence of any of the events specified in Section 6 hereof, the rights
granted by this Purchase Option, including the exercise price per Unit and
the
number of Units (and shares of Common Stock and Warrants) to be received
upon
such exercise, shall be adjusted as therein specified. The term "Exercise
Price"
shall mean the initial exercise price 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
for the Units being purchased payable in cash or by certified check or official
bank check. If the subscription rights represented hereby shall not be exercised
at or before 5:00 p.m., New York City Time, on the Expiration Date, this
Purchase Option shall become and be void without further force or effect,
and
all rights represented hereby shall cease and expire.
2.2
Legend. Each certificate for the 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 (the "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, IN
WHOLE
OR IN PART, 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
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 of a Unit multiplied by the number of Units underlying
the
portion of the Purchase Option being converted. As used herein, the term
"Current Market Value" per Unit at any date means: (A) in the event that
neither
the Units nor Warrants are still trading, the remainder derived from subtracting
(x) the exercise price of the Warrants multiplied by the number of shares
of
Common Stock issuable upon exercise of the Warrants underlying one Unit from
(y)
(i) the Current Market Price of the Common Stock multiplied by (ii) the number
of shares of Common Stock underlying one Unit, which shall include the shares
of
Common Stock underlying the Warrants included in such Unit; (B) in the event
that the Units, Common Stock and Public Warrants are still trading, (i) if
the
Units are listed on a national securities exchange or quoted on the Nasdaq
Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or NASD
OTC
Bulletin Board (or successor such as the Bulletin Board Exchange), the last
sale
price of the Units in the principal trading market for the Units as reported
by
the exchange, Nasdaq or the NASD, as the case may be, on the last trading
day
preceding the date in question; or (ii) if the Units are not listed on a
national securities exchange or quoted on the Nasdaq Global Select Market,
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 Units on the last trading day preceding the date in
question for which such quotations are reported by the Pink Sheets, LLC or
similar publisher of such quotations; and (C) in the event that the Units
are
not still trading but the Common Stock and 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 Select
Market, Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin
Board
(or successor such as the Bulletin Board Exchange), the last sale price of
the
Common Stock (or Warrants) in the principal trading market for the Common
Stock
as reported by the exchange, Nasdaq or the NASD, as the case may be, on the
last
trading day preceding the date in question; (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 Select Market, 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. In the event the
Public
Warrants have expired and are no longer exercisable, no "Value" shall be
attributed to the Warrants underlying this Purchase Option. Additionally,
in the
event that this Purchase Option is exercised pursuant to this Section 2.3
and
the Public Warrants are still trading, the "Value" shall be reduced by the
difference between the Warrant Exercise Price and the exercise price of the
Public Warrants multiplied by the number of Warrants underlying the Units
included in the portion of this Purchase Option being converted.
2
2.4
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
Net Cash Settlements or Damages Upon Failure of Registration. In no event
shall
the registered Holder of this Purchase Option be entitled to (i) net cash
settlement of this Purchase Option or the Warrants underlying the Purchase
Option, regardless of whether any or all of the Registrable Securities have
been
registered by the Company pursuant to an effective registration statement,
or
(ii) receive
any damages if any or all of the Registrable Securities have not been registered
by the Company pursuant to an effective registration statement, subject to
the
requirement that the Company use its best efforts to have a registration
statement or post-effective amendment declared effective as soon as possible
after receiving the Initial Demand Notice.
The
holder of the Warrants underlying the Purchase Option will not be entitled
to
exercise the Warrants underlying such Purchase Option unless a registration
statement is effective, or an exemption from the registration requirements
is
available at such time and, if the holder does not, or is not able to, exercise
the Warrants underlying the Purchase Option the Warrants will expire worthless.
3.
Transfer.
3.1
General Restrictions. The registered Holder of this Purchase Option, by its
acceptance hereof, agrees that it will not sell, transfer, assign, pledge
or
hypothecate this Purchase Option for a period of 180 DAYS following the
Effective Date in accordance with NASD Rule 2710(g)(1) to anyone other than
(i)
Maxim or an underwriter or a selected dealer in connection with the Offering,
or
(ii) a bona fide officer or partner of Maxim or of any such underwriter or
selected dealer. On and after 180 days from the Effective Date, transfers
to
others may be made subject to compliance with or exemptions from applicable
securities laws. In order to make any permitted assignment, the Holder must
deliver to the Company the assignment form attached hereto duly executed
and
completed, together with the Purchase Option and payment of all transfer
taxes,
if any, payable in connection therewith. The Company shall within five business
days transfer this Purchase Option on the books of the Company and shall
execute
and deliver a new Purchase Option or Purchase Options of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase the aggregate
number of Units purchasable hereunder or such portion of such number as shall
be
contemplated by any such assignment.
3.2
Restrictions Imposed by the 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
Xxxxxxxxxx & Xxxxx 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 and compliance with applicable state securities law has been
established.
4.
New
Purchase Options to be Issued.
4.1
Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof,
this Purchase Option may be exercised or assigned in whole or in part. In
the
event of the exercise or assignment hereof in part only, upon surrender of
this
Purchase Option for cancellation, together with the duly executed exercise
or
assignment form and, except in the case of an exercise of this Purchase Option
contemplated by Section 2.3 hereof, funds sufficient to pay any Exercise
Price
and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Purchase Option of like tenor to this Purchase
Option in the name of the Holder evidencing the right of the Holder to purchase
the number of Units purchasable hereunder as to which this Purchase Option
has
not been exercised or assigned.
3
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 "Initial Demand Notice")
of
the holder(s) of at least an aggregate of 51% of all outstanding Purchase
Options issued by the Company and/or the underlying Units and/or the underlying
securities (the "Majority Holders"), agrees to use its best efforts 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,
Common Stock, the Warrants and the Common Stock underlying the Warrants
(collectively,
the "Registrable Securities"). On such occasion, the Company will use its
best
efforts to file a registration statement or a post-effective amendment to
the
Registration Statement covering the Registrable Securities within sixty days
after receipt of the Initial Demand Notice and use its best efforts to have
such
registration statement or post-effective amendment declared effective as
soon as
possible thereafter. The demand for registration may be made at any time
during
a period of five years beginning on the Effective Date. The Initial Demand
Notice shall specify the number of shares of Registrable Securities proposed
to
be sold and the intended method(s) of distribution thereof. The Company will
notify all holders of the Purchase Options and/or Registrable Securities
of the
demand within ten days from the date of the receipt of any such Initial Demand
Notice. Each holder of Registrable Securities who wishes to include all or
a
portion of such holder's Registrable Securities in the Demand Registration
(each
such holder including shares of Registrable Securities in such registration,
a
"Demanding Holder") shall so notify the Company within fifteen (15) days
after
the receipt by the holder of the notice from the Company. Upon any such request,
the Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 5.2.1.
5.1.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting commissions.
The
Company agrees to use its reasonable
best efforts to qualify or register the Registrable Securities in such States
as
are reasonably requested by the Majority Holder(s); provided, however, that
in
no event shall the Company be required to register the Registrable Securities
in
a State in which such registration would cause (i) the Company to be obligated
to qualify to do business in such State, or would subject the Company to
taxation as a foreign corporation doing business in such jurisdiction or
(ii)
the principal stockholders of the Company to be obligated to escrow their
shares
of capital stock of the Company. The Company shall use its
best
efforts to cause any registration statement or post-effective amendment filed
pursuant to the demand rights granted under Section 5.1.1 to remain effective
for a period of nine (9) months from the effective date of such registration
statement or post-effective amendment.
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 for a period of seven years commencing
on 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); 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
4
(ii)
If
the registration is a "demand" registration undertaken at the demand of persons
other than the holders of Registrable Securities pursuant to written contractual
arrangements with such persons, (A) first, the shares of Common Stock for
the
account of the demanding persons that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common
Stock
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; and (C) third, to the extent that
the
Maximum Number of Shares has not been reached under the foregoing clauses
(A)
and (B), the Registrable Securities as to which registration has been requested
under this Section 5.2 (pro rata in accordance with the number of shares
of
Registrable Securities held by each such holder); and (D) fourth, to the
extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the shares of Common Stock,
if
any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights which other shareholders desire to sell that
can
be sold without exceeding the Maximum Number of Shares.
5.2.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting commissions
related to the Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the then Holders of outstanding
Registrable Securities with not less than fifteen days written notice prior
to
the proposed date of filing of such registration statement.
Such notice to the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the Purchase Option
is
exercisable) by the Company until such time as all of the Registrable Securities
have been registered and sold. The holders of the Registrable Securities
shall
exercise the "piggy-back" rights provided for herein by giving written notice,
within ten days of the receipt of the Company's notice of its intention to
file
a registration statement. The Company shall use its best efforts to 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 expenses, 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 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
(the
"Exchange Act"), and any of their
respective heirs, successors, permitted assigns and transfers, and agents
and
representatives, 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 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 6 of
the
Underwriting Agreement between the Company, Maxim and the other underwriters
named therein dated the Effective Date. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the 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 of the Underwriting Agreement pursuant to which the underwriters have agreed
to indemnify the Company.
5
5.3.2
Exercise of Purchase Options. Nothing contained in this Purchase Option shall
be
construed as requiring the Holder(s) to exercise their Purchase Options or
Warrants underlying such Purchase Options prior to or after the initial filing
of any registration statement or the effectiveness thereof.
5.3.3
Documents Delivered to Holders. The Company shall furnish 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.
5.3.4
Underwriting Agreement. The Company shall enter into an underwriting agreement
with the managing underwriter(s), if any, selected by any Holders whose
Registrable Securities are being registered pursuant to this Section 5, which
managing underwriter shall be reasonably acceptable to the Company. Such
agreement shall be reasonably satisfactory in form and substance to the Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other terms
as
are customarily contained in agreements of that type used
by
the managing underwriter. The Holders shall be parties to any underwriting
agreement relating to an underwritten sale of their Registrable Securities
and
may, at their option, require that any or all the representations, warranties
and covenants of the Company to or for the benefit of such underwriters shall
also be made to and for the benefit of such Holders. Such
Holders shall not be required to make any representations or warranties to
or
agreements with the Company or the underwriters except as they may relate
to
such Holders and their intended methods of distribution. Such Holders, however,
shall
agree to such covenants and indemnification and contribution obligations
for
selling stockholders as are customarily contained in agreements of that type
used by the managing underwriter. Further, such Holders shall execute
appropriate custody agreements and otherwise cooperate fully in the preparation
of the registration statement and other documents relating to any offering
in
which they include securities pursuant to this Section 5. Each Holder shall
also
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
6
5.3.5
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
to use its best efforts to obtain 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).
5.3.6
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
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
6.
Adjustments.
6.1
Adjustments to Exercise Price and Number of Securities. The Exercise Price
and
the number of Units underlying the Purchase Option shall be subject to
adjustment from time to time as hereinafter set forth:
6.1.1
Stock Dividends - Split-Ups. If after the date hereof, and subject to the
provisions of Section 6.4 below, the number of outstanding shares of Common
Stock is increased by a stock dividend payable in shares of Common Stock
or by a
split-up of shares of Common Stock or other similar event, then, on the
effective date thereof, the number of shares of Common Stock underlying each
of
the Units purchasable hereunder shall be increased in proportion to such
increase in outstanding shares. In such case, the number of shares of Common
Stock, and the exercise price applicable thereto, underlying the Warrants
underlying each of the Units purchasable hereunder shall be adjusted in
accordance with the terms of the Warrants. For example, if the Company declares
a two-for-one stock dividend and at the time of such dividend this
Purchase Option is for the purchase of one Unit at $8.80 per whole Unit (the
Warrant underlying the Unit is exercisable for $6.00 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow
for the purchase of one Unit at $8.80 per Unit, each Unit entitling the holder
to receive two shares of Common Stock and two Warrants (each Warrant exercisable
for $3.00 per share).
6.1.2
Aggregation of Shares. If after the date hereof, and subject to the provisions
of Section 6.4, 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.
7
6.1.3
Replacement of Securities upon Reorganization,etc. In case of any
reclassification or reorganization of the outstanding shares of Common Stock
other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance
to another corporation or entity of the property of the Company as an entirety
or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until
the expiration of the right of exercise of this Purchase Option) to receive
upon
the exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock or
other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following
any
such sale or transfer, by a Holder of the number of shares of Common Stock
of
the Company obtainable upon exercise of this Purchase Option and the underlying
Warrants immediately prior to such event; and if any reclassification
also results in a change in shares of Common Stock covered by Section 6.1.1
or
6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2
and
this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly
apply
to successive reclassifications, reorganizations, mergers or consolidations,
sales or other transfers.
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 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 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 Select Market, Nasdaq Global Market, Nasdaq Capital Market, 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
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 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 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 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:
0
Xxxxxx
Xxxxxx
Herzeliya,
Israel 46700
Attn:
Xxxx Xxxxxx, Chief Executive Officer
Fax
No.:
________________
9
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.
10.
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.
10.1
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.
10.2
Governing Law; Submission to Jurisdiction. This Purchase Option shall be
governed by and construed and enforced in accordance with the laws of the
State
of New York, without giving effect to conflict of laws. Each of the Company
and
Maxim agree that any action, proceeding or claim against it arising out of,
or
relating in any way to this Purchase Option shall be brought and enforced
in the
courts of the State of New York located in New York County or of the United
States of America for the Southern District of New York, and irrevocably
submits
to such jurisdiction, which jurisdiction shall be exclusive. Each of the
Company
and Maxim hereby waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenient forum. Any process or summons to be
served
upon the Company may be served by transmitting a copy thereof by registered
or
certified mail, return receipt requested, postage prepaid, addressed to it
at
the address set forth in Section 8 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any action,
proceeding or claim. The Company and the Holder agree that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys' fees and expenses relating to
such
action or proceeding and/or incurred in connection with the preparation
therefor.
10.4
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.
10.5
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.
[Remainder
of Page Intentionally Left Blank]
10
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed
by its
duly authorized officer as of the ___ day of __________, 2007.
| PINPOINT ADVANCE CORP. | ||
| |
|
|
| By: | ||
|
Name: Xxxx Xxxxxx Title:
Chief Executive Officer
|
||
11
Form
to
be used to exercise Purchase Option
0
Xxxxxx
Xxxxxx
Herzeliya,
Israel 46700
Date:_________________,
200__
The
undersigned hereby elects irrevocably to exercise all or a portion of the
within
Purchase Option and to purchase ____ Units of Pinpoint Advance 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.
12
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 Pinpoint Advance 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.
13
