EXHIBIT 4.4
THE REGISTERED HOLDER (AS DEFINED BELOW) OF THIS PURCHASE OPTION BY ITS
ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS
PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS
PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR
HYPOTHECATE, THIS PURCHASE OPTION FOR A PERIOD OF ONE YEAR FOLLOWING THE
EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) DEUTSCHE BANK SECURITIES
INC. ("DEUTSCHE BANK") OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH
THE OFFERING (DEFINED BELOW), OR (II) A BONA FIDE OFFICER OR PARTNER OF DEUTSCHE
BANK OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF (I) THE
ACQUISITION BY TAILWIND FINANCIAL INC. (THE "COMPANY") OF ONE OR MORE ASSETS OR
OPERATING BUSINESSES THROUGH A MERGER, CAPITAL STOCK EXCHANGE, ASSET OR STOCK
ACQUISITION, EXCHANGEABLE SHARE TRANSACTION OR OTHER SIMILAR BUSINESS
COMBINATION (A "BUSINESS COMBINATION") AND (II) [-], 2007. VOID AFTER 5:00 P.M.
NEW YORK CITY LOCAL TIME, [-], 2010.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
625,000 UNITS
OF
TAILWIND FINANCIAL INC.
1. PURCHASE OPTION.
THIS CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf
of ____________ (the "HOLDER"), as registered owner of this Purchase Option, to
the Company, Holder is entitled, at any time or from time to time upon the later
of the consummation by the Company of a Business Combination and [-], 2007 (the
"COMMENCEMENT DATE"), and at or before 5:00 p.m., New York City local time, [-],
2010 (the "EXPIRATION DATE") (four (4) years from the effective date (the
"EFFECTIVE DATE") of the registration statement (the "REGISTRATION STATEMENT")
pursuant to which units (the "UNITS") of the Company, each Unit consisting of
one share of common stock of the Company, par value $0.01 per share (the "COMMON
STOCK"), and one warrant (a "WARRANT") exercisable for one share of Common
Stock, are offered for sale to the public (the "OFFERING")), but not thereafter,
to subscribe for, purchase and receive, in whole or in part, up to six hundred
twenty-five thousand (625,000) Units. Each Warrant is the same as the warrants
included in the Units being registered for sale to the public by way of the
Registration Statement (the "PUBLIC WARRANTS"), except that the exercise price
of the Warrant is $7.20 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 $9.60 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 FORM.
In order to exercise this Purchase Option, the exercise form attached
hereto must be duly executed, 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 local 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.
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, or enter into any hedging, short sale, derivative, put, or call
transaction that would result in the effective economic disposition of, this
Purchase Option for a period of one year following the Effective Date to anyone
other than (i) Deutsche Bank or an underwriter or a selected dealer in
connection with the Offering, or (ii) a bona fide officer or partner of Deutsche
Bank or of any such underwriter or selected dealer. On and after the first
anniversary of 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 (5) business days transfer this
Purchase Option on the books of the Company and shall execute and deliver a new
Purchase Option 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 an opinion of counsel for the Holder that the securities may be
transferred pursuant to an exemption from registration under the Securities Act
of 1933, as amended (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 Xxxxxxx XxXxxxxxx 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 "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 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.
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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 (the "INITIAL
DEMAND NOTICE") of the Holder(s) of at least 51% in interest of the Purchase
Options and/or the underlying Units and/or the underlying securities (the
"MAJORITY HOLDERS"), agrees to register (the "DEMAND REGISTRATION") under the
Act on one occasion, all 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 file a registration statement for use in an
offering of the Registrable Securities from time-to-time or a post-effective
amendment to the Registration Statement covering all of the Registrable
Securities that will permit an offering of the Registrable Securities from
time-to-time 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. The demand for
registration may be made at any time during a period of five (5) years beginning
on the Effective Date. The Initial Demand Notice shall specify the intended
method(s) of distribution of the Registrable Securities. The Company will notify
all holders of the Purchase Options and/or Registrable Securities of the demand
within ten (10) 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 5.1.4.
5.1.2 EFFECTIVE REGISTRATION. A registration will not count as a
Demand Registration until the registration statement filed with the Commission
with respect to such Demand Registration has been declared effective and the
Company has complied with all of its obligations under this Purchase Option with
respect thereto; provided, however, that if, after such registration statement
has been declared effective, the offering of Registrable Securities pursuant to
a Demand Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the registration statement
with respect to such Demand Registration will be deemed not to have been
declared effective, unless and until, (i) such stop order or injunction is
removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of
the Demanding Holders thereafter elect to continue the offering.
5.1.3 UNDERWRITTEN OFFERING. If the Majority Holders so elect and
such holders so advise the Company as part of the Initial Demand Notice, the
offering of all or any portion of the Registrable Securities pursuant to such
Demand Registration shall be in the form of one underwritten offering. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Majority
Holders.
5.1.4 REDUCTION OF OFFERING. If the managing underwriter or
underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding
3
Holders in writing that the dollar amount or number of shares of Registrable
Securities which the Demanding Holders desire to sell pursuant to the
underwritten offering, taken together with all other shares of Common Stock or
other securities which the Company desires to sell and the shares of Common
Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other stockholders of the
Company who desire to sell, exceeds the maximum dollar amount or maximum number
of shares that can be sold in such offering without adversely affecting the
proposed offering price, the timing, the distribution method, or the probability
of success of such offering (such maximum dollar amount or maximum number of
shares, as applicable, the "MAXIMUM NUMBER OF SHARES"), then the Company shall
include in such registration: (i) first, the Registrable Securities as to which
Demand Registration has been requested by the Demanding Holders that want to
participate in such underwritten offering (pro rata in accordance with the
number of shares that each such Person has requested be included in such
registration, regardless of the number of shares held by each such Person (such
proportion is referred to herein as "PRO RATA")) that can be sold without
exceeding the Maximum Number of Shares; (ii) second, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause (i),
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; (iii) third, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), the shares of Common Stock or other securities
registrable pursuant to the terms of the Registration Rights Agreement between
the Company and the initial investors in the Company, dated as of [-], 2006 (the
"REGISTRATION RIGHTS AGREEMENT" and such registrable securities, the "INVESTOR
SECURITIES") as to which "piggy-back" registration has been requested by the
holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number
of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares have
not been reached under the foregoing clauses (i), (ii), and (iii), the shares of
Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual arrangements
with such persons and that can be sold without exceeding the Maximum Number of
Shares.
5.1.5 WITHDRAWAL. If a majority-in-interest of the Demanding Holders
disapprove of the terms of any underwriting or are not entitled to include all
of their Registrable Securities in any offering, such majority-in-interest of
the Demanding Holders may elect to withdraw from such offering by giving written
notice to the Company and the underwriter or underwriters of their request to
withdraw prior to the effectiveness of the registration statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest
of the Demanding Holders elect to withdraw from a proposed offering pursuant to
this Section 5.1.5, then such Demand Registration shall not count as a Demand
Registration as provided for in Section 5.1.
5.1.6 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 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 until the expiration of
the Warrants in accordance with the terms and conditions of that certain Warrant
Agreement, dated as of [-], 2006, between the Company and American Stock
Transfer & Trust Company (the "WARRANT AGREEMENT").
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5.1.7 PERMITTED DELAYS. The Company shall be entitled to postpone
the filing of any registration statement under this Section 5.1, if (a) at
any time prior to the filing of such registration statement the Company's
Board of Directors determines, in its good faith business judgment, that such
registration and offering would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material
transaction involving the Company, and (b) the Company delivers to the
Demanding Holders written notice thereof within five (5) business days of the
date of receipt of a request for Demand Registration; provided that all such
periods of postponement may not exceed 45 days during any 365 day period.
5.2 PIGGY-BACK REGISTRATION.
5.2.1 PIGGY-BACK RIGHTS. If at any time during the seven (7) year
period commencing on the Effective Date the Company proposes to file a
registration statement under the Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for,
or convertible into, equity securities, by the Company for its own account or
for stockholders of the Company for their account (or by the Company and by
stockholders of the Company including, without limitation, pursuant to Section
5.1), other than a registration statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or
offering of securities solely to the Company's existing stockholders, (iii) for
an offering of debt that is convertible into equity securities of the Company or
(iv) for a dividend reinvestment plan, then the Company shall (x) give written
notice of such proposed filing to the holders of Registrable Securities as soon
as practicable but in no event less than ten (10) days before the anticipated
filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name
of the proposed managing underwriter or underwriters, if any, of the offering,
and (y) offer to the holders of Registrable Securities in such notice the
opportunity to register the sale of such number of shares of Registrable
Securities as such holders may request in writing within five (5) days following
receipt of such notice (a "PIGGY-BACK REGISTRATION"). The Company shall cause
such Registrable Securities to be included in such registration and shall use
its best efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to
distribute their securities through a Piggy-Back Registration that involves an
underwriter or underwriters shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such Piggy-Back
Registration.
5.2.2 REDUCTION OF OFFERING. If the managing underwriter or
underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common Stock, if any, as
to which registration has been demanded pursuant to written contractual
arrangements with persons other than the holders of Registrable Securities
hereunder, the Registrable Securities as to which registration has been
requested under this Section 5.2, and the shares of Common Stock, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(a) 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 or other securities,
if any, comprised of Registrable Securities and Investor Securities, as to which
registration has been requested
5
pursuant to the applicable written contractual piggy-back registration rights of
such security holders, Pro Rata, 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 shares of
Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual piggy-back
registration rights with such persons and that can be sold without exceeding the
Maximum Number of Shares;
(b) If the registration is a "demand" registration undertaken at the
demand of holders of Investor Securities, (A) first, the shares of Common Stock
or other securities for the account of the demanding persons, Pro Rata, 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; (C) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A) and (B), the shares of Registrable
Securities, Pro Rata, as to which registration has been requested pursuant to
the terms hereof, that can be sold without exceeding the Maximum Number of
Shares; 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 or other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements with such
persons, that can be sold without exceeding the Maximum Number of Shares; and
(c) If the registration is a "demand" registration undertaken at the
demand of persons other than either the holders of Registrable Securities or of
Investor Securities, (A) first, the shares of Common Stock or other securities
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; (C) third, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), collectively the shares of Common Stock or other securities
comprised of Registrable Securities and Investor Securities, Pro Rata, as to
which registration has been requested pursuant to the terms hereof and of the
Registration Rights Agreement, as applicable, that can be sold without exceeding
the Maximum Number of Shares; 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 or other securities for the account of other
persons that the Company is obligated to register pursuant to written
contractual arrangements with such persons, that can be sold without exceeding
the Maximum Number of Shares.
5.2.3 WITHDRAWAL. Any holder of Registrable Securities may elect to
withdraw such xxxxxx's request for inclusion of Registrable Securities in any
Piggy-Back Registration by giving written notice to the Company of such request
to withdraw prior to the effectiveness of the registration statement. The
Company (whether on its own determination or as the result of a withdrawal by
persons making a demand pursuant to written contractual obligations) may
withdraw a registration statement at any time prior to the effectiveness of the
registration statement. Notwithstanding any such withdrawal, the Company shall
pay all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 5.2.4.
5.2.4 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
6
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 (10) 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 (9) months from the date that the
Holders of the Registrable Securities are first given the opportunity to sell
all of such securities.
5.2.5 PERMITTED DELAYS. The Company shall be entitled to postpone
the filing of any registration statement under this Section 5.2, if (a) at
any time prior to the filing of such registration statement the Company's
Board of Directors determines, in its good faith business judgment, that such
registration and offering would materially and adversely affect any
financing, acquisition, corporate reorganization, or other material
transaction involving the Company, and (b) the Company delivers to the
Holders of the Registrable Securities exercising their "piggy-back" rights
written notice thereof within five (5) business days of the date of receipt
by the Company of such requests for Piggy-Back Registration, provided that
all such periods of postponement may not exceed 45 days during any 365 day
period.
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"), 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
[8] of the Underwriting Agreement between the Company, Deutsche Bank 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.
5.3.2 EXERCISE OF PURCHASE OPTIONS. Nothing contained in this
Purchase Option shall be construed as requiring the Holder(s) to exercise their
Purchase Options or the 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 to
the Holders participating in any of the foregoing offerings, a signed
counterpart, addressed to the participating
7
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 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 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. ("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 the Holders shall reasonably
request. The Company shall not be required to disclose any confidential
information or other records to 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.
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 for the registration of Registrable Securities held by any
Holder (i) where such Holder would then be entitled to sell under Rule 144 under
the Act ("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 then held by such Holder, and (ii) where the number of
Registrable Securities held by such Holder is within the
8
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 6.3 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 $9.60 per whole Unit (each Warrant
underlying the Units is exercisable for $7.20 per share), upon effectiveness of
the dividend, this Purchase Option will be adjusted to allow for the purchase of
one Unit at $9.60 per Unit, each Unit entitling the holder to receive two shares
of Common Stock and two Warrants (each Warrant exercisable for $3.60 per share).
6.1.2 EXTRAORDINARY DIVIDEND. If the Company, at any time while this
Purchase Option is outstanding and unexpired, shall pay a dividend or make a
distribution in cash, securities or other assets to the holders of Common Stock
(or other shares of the Company's capital stock receivable upon exercise of the
Purchase Option), other than (i) as described in Sections 6.1.1, 6.1.3 or 6.1.4,
(ii) regular quarterly or other periodic dividends, (iii) in connection with the
conversion rights of the holders of Common Stock upon consummation of the
Company's initial Business Combination or (iv) in connection with the Company's
liquidation and the distribution of its assets upon its failure to consummate a
Business Combination (any such non-excluded event being referred to herein as an
"Extraordinary Dividend"), then the Exercise Price shall be decreased, effective
immediately after the effective date of such Extraordinary Dividend, by the
amount of cash and/or the fair market value (as determined by the Company's
Board of Directors, in good faith) of any securities or other assets paid on
each share of Common Stock in respect of such Extraordinary Dividend.
6.1.3 AGGREGATION OF SHARES. If after the date hereof, and subject
to the provisions of Section 6.3, 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
9
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.
6.1.4 REPLACEMENT OF SECURITIES UPON REORGANIZATION, ETC. In case of
any reclassification or reorganization of the outstanding shares of Common Stock
other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, the kind and amount of shares of
stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, by a Holder of the number of shares of
Common Stock of the Company obtainable upon exercise of this Purchase Option and
the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by
Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections
6.1.1, 6.1.2 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.
6.1.5 CHANGES IN FORM OF PURCHASE OPTION. This form of Purchase
Option need not be changed because of any change pursuant to this Section, and
Purchase Options issued after such change may state the same Exercise Price and
the same number of Units as are stated in the Purchase Options initially issued
pursuant to this form of Purchase Option. 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.
6.1.6 ADJUSTMENTS OF WARRANTS. To the extent the price of the
Warrants is lowered pursuant to Section 3.1 of the Warrant Agreement, the price
of the Warrants underlying the Purchase Option shall be reduced on identical
terms, subject to any limitations and conditions that may be imposed by NASD
Corporate Financing Rule 2710 and any such reduction must remain in effect for
at least twenty (20) business days. To the extent the duration of the Warrants
is extended pursuant to Section 3.2 of the Warrant Agreement, the duration of
the Warrants underlying the Purchase Option shall be extended on identical
terms, subject to any limitations that may be imposed by NASD Corporate
Financing Rule 2710.
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
10
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 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, (iii) Warrants issuable upon exercise of the Purchase Options and (iv)
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 National Market, SmallCap Market, OTC Bulletin Board or any successor
trading market) on which the Units, the Common Stock or the Public Warrants
issued to the public in connection herewith 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 payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, 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
11
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 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 (the "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, or mailed by express mail or
private courier service: (i) if to the registered Holder of the Purchase Option,
to the address of such Holder as shown on the books of the Company, or (ii) if
to the Company, to the following address or to such other address as the Company
may designate by notice to the Holders:
Tailwind Financial Inc.
BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx X. XxXxx
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-00000
Attn: Xxxxx Xxxxx, Esq.
9. MISCELLANEOUS.
9.1 AMENDMENTS. The Company 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
may deem necessary or desirable and that the Company, in the exercise of
reasonable judgment, determines that it 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
12
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
for all purposes be deemed to be made under and shall be construed in accordance
with the laws of the State of New York, without giving effect to conflicts of
law principles that would result in the application of the substantive laws of
another jurisdiction. The Company hereby agrees that any action, proceeding or
claim against it arising out of or relating in any way to this Agreement shall
be brought and enforced in the courts of the State of New York or the United
States District Court for the Southern District of New York, and irrevocably
submit to such jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 8 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 or non-compliance.
9.7 EXECUTION IN COUNTERPARTS. This Purchase Option may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement, and shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
9.8 UNDERLYING WARRANTS. At any time after exercise by the Holder of this
Purchase Option, the Holder may exchange its Warrants (with an initial exercise
price of $7.20) for Public Warrants (with an initial exercise price of $6.00)
upon payment to the Company of the difference between the exercise price of its
Warrant and the exercise price of the Public Warrants. Any such Public Warrants
and the Common Stock underlying such Public Warrants shall constitute
Registrable Securities.
13
IN WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by
its duly authorized officer as of the _____ day of _______________, 2006.
TAILWIND FINANCIAL INC.
By:
-----------------------------------------
Name: Xxxxxx X. XxXxx
Title: President and Chief Executive Officer
14
FORM TO BE USED TO EXERCISE PURCHASE OPTION:
Tailwind Financial Inc.
BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx X. XxXxx
Date:_________________, 200__
The undersigned hereby elects irrevocably to exercise all or a portion of the
within Purchase Option and to purchase ______________ Units of Tailwind
Financial Inc. and hereby makes payment of $__________ (at the rate of $________
per Unit) in payment of the Exercise Price pursuant thereto. Please issue the
Common Stock and Warrants as to which this Purchase Option is exercised in
accordance with the instructions given below.
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.
------------------------------------------
NOTICE: The signature to this exercise
notice must correspond with the name as
written upon the face of the purchase
option in every particular, without
alteration or enlargement or any change
whatever.
Signature(s) Guaranteed:
--------------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
SECURITIES AND EXCHANGE COMMISSION RULE 17Ad-15).
15
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
---------------------------------------------------------------------
(Print in Block Letters)
Address
16
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
Tailwind Financial Inc. (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
---------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the purchase option in
every particular, without alteration or
enlargement or any change whatever.
Signature(s) Guaranteed:
-----------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO
SECURITIES AND EXCHANGE COMMISSION RULE 17Ad-15).
17
