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
4.4
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 ONE YEAR FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER
THAN (I) PALI CAPITAL, INC. ("XXXX"), OR AN UNDERWRITER OR A SELECTED DEALER
IN
CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF PALI
OR
OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF THE CONSUMMATION BY
FMG
ACQUISITION CORP. ("COMPANY") OF A SHARE CAPITAL EXCHANGE, ASSET ACQUISITION
OR
OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS COMBINATION") (AS DESCRIBED MORE
FULLY IN THE COMPANY'S REGISTRATION STATEMENT (DEFINED HEREIN)) OR ___________,
2008. VOID AFTER 5:00 P.M. NEW YORK CITY LOCAL TIME, ___________, 2012.
UNIT
PURCHASE OPTION
FOR
THE PURCHASE OF
450,000
UNITS
OF
THIS
CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf of
Pali
or
its designee ("HOLDER"), as registered owner of this Purchase Option, to FMG
Acquisition Corp. ("COMPANY"), Holder is entitled, at any time or from time
to
time upon the later of the consummation of a Business Combination or
____________, 2008 ("COMMENCEMENT DATE"), and at or before 5:00 p.m., New York
City local time, ____________, 2012 ("EXPIRATION DATE"), but not thereafter,
to
subscribe for, purchase and receive, in whole or in part, up to 450,000 units
("UNITS") of the Company, each Unit consisting of one share of common stock
of
the Company, par value $0.0001 per share ("COMMON SHARE(S)"), and one warrant
("WARRANT(S)") expiring four years from the effective date ("EFFECTIVE DATE")
of
the registration statement ("REGISTRATION STATEMENT") pursuant to which Units
are offered for sale to the public ("OFFERING"). 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 ("PUBLIC WARRANTS"), except that the exercise price
of the Warrant is $6.00 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 $10.00 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 Common Shares 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 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.
"The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended ("Act") or applicable state law. The
securities may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or pursuant
to an
exemption from registration under the Act and applicable state law."
2.3.1 DETERMINATION
OF AMOUNT. 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 Shares 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 Common Shares 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 Common Shares issuable upon exercise of
the
Warrants underlying one Unit from (y) (i) the Current Market Price of the Common
Shares multiplied by (ii) the number of Common Shares underlying one Unit,
which
shall include the Common Shares underlying the Warrants included in such Unit;
(B) in the event that the Units, Common Shares and Warrants are still trading,
(i) if the Units are listed on a national securities exchange or quoted on
the
Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin Board (or
successor such as the Bulletin Board Exchange), the 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 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 Shares and Warrants
underlying the Units are still trading, the Current Market Price of the Common
Shares plus the product of (x) the Current Market Price of the Warrants and
(y)
the number of Common Shares underlying the Warrants included in one Unit. The
"CURRENT MARKET PRICE" shall mean (i) if the Common Shares (or Warrants, as
the
case may be) are listed on a national securities exchange or quoted on the
Nasdaq Global Market, Nasdaq Capital Market or NASD OTC Bulletin Board (or
successor such as the Bulletin Board Exchange), the last sale price of the
Common Shares (or Warrants) in the principal trading market for the Common
Shares 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 Shares
(or Warrants, as the case may be) are not listed on a national securities
exchange or quoted on the Nasdaq Global Market, Nasdaq Capital Market or the
NASD OTC Bulletin Board (or successor exchange), but are traded in the residual
over-the-counter market, the closing bid price for the Common Shares (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 Shares cannot
be
determined pursuant to clause (i) or (ii) above, such price as the Board of
Directors of the Company shall determine, in good faith.
-2-
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 one year following the Effective Date
to
anyone other than (i) Pali or an underwriter or a selected dealer in connection
with the Offering, or (ii) a bona fide officer or partner of Pali 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 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-
5.1.1 GRANT
OF
RIGHT. The Company, upon written demand ("INITIAL DEMAND NOTICE") of the
Holder(s) of at least 51% of the Purchase Options and/or the underlying Units
and/or the underlying securities ("MAJORITY HOLDERS"), agrees to register (the
"DEMAND REGISTRATION") under the Act 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 Shares, the Warrants and the Common Shares underlying the Warrants
(collectively, the "REGISTRABLE SECURITIES"). On such occasion,
the Company will 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 5.1.4.
-4-
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 Holders in writing that the dollar amount or number of shares of
Registrable Securities which the Demanding Holders desire to sell, taken
together with all other Common Shares or other securities which the Company
desires to sell and the Common Shares, if any, as to which registration has
been
requested pursuant to written contractual piggy-back registration rights held
by
other shareholders 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 (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 Common Shares 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 Common Shares 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 ____________,
2007 (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 Common Shares 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-
5.2 PIGGY-BACK
REGISTRATION.
5.2.1 PIGGY-BACK
RIGHTS. If at any time during the seven 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 shareholders of the Company for their account
(or by the Company and by shareholders of the Company including, without
limitation, pursuant to Section 5.1), other than a registration statement (i)
filed in connection with any employee share option or other benefit plan, (ii)
for an exchange offer or offering of securities solely to the Company's existing
shareholders, (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
Common Shares which the Company desires to sell, taken together with Common
Shares, 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 Common Shares, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other shareholders 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 Common Shares 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 Common Shares or other securities, if any, comprised
of Registrable Securities and Investor Securities, as to which registration
has
been requested 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 Common Shares 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;
-6-
(b) If
the
registration is a "demand" registration undertaken at the demand of holders
of
Investor Securities, (A) first, the Common Shares 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 Common Shares
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 Common Shares 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 Common Shares 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 Common Shares 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
Common Shares 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 Common Shares 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 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 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.
-7-
5.3 NO
NET-CASH SETTLEMENT 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, 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 filed pursuant to this Section declared effective as soon as possible
after receiving the Initial Demand Notice. In the event there is no effective
registration statement related to the issuance or exercise of the Warrants
contained within the Units, that portion of the Units may not be exercised
by
the Holder and therefore may expire and be worthless.
5.4 GENERAL
TERMS.
-8-
5.4.4 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
shareholders 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.
-9-
6. ADJUSTMENTS.
6.1.1 SHARE
DIVIDENDS - SPLIT-UPS. If after the date hereof, and subject to the provisions
of Section 6.3 below, the number of outstanding Common Shares is increased
by a
share dividend payable in Common Shares or by a split-up of Common Shares or
other similar event, then, on the effective date thereof, the number of Common
Shares underlying each of the Units purchasable hereunder shall be increased
in
proportion to such increase in outstanding shares. In such case, the number
of
Common Shares, 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 share dividend and at the time of such dividend
this Purchase Option is for the purchase of one Unit at $10.00 per whole Unit
(each Warrant underlying the Units 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 $10.00 per Unit, each Unit entitling the holder
to receive two Common Shares and two Warrants (each Warrant exercisable for
$3.00 per share).
-10-
6.1.6 ADJUSTMENTS
OF WARRANTS. To the extent the price of the Warrants are lowered pursuant to
Section 3.1 of the Warrant Agreement, dated ____________, 2007, between
the
Company and Continental Stock Transfer & Trust Company (the "WARRANT
AGREEMENT") the price of the Warrants underlying the Purchase Option shall
be
reduced on identical percentage terms. 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.
-11-
-12-
Four
Forest Park
Farmington,
CT 06032
Attn:
Xxxxxx Xxxxx, Chief Executive Officer and President
Facsimile:
(___) ___-____
9.5 GOVERNING
LAW; SUBMISSION TO JURISDICTION. This Purchase Option shall be governed by
and
construed and enforced in accordance with the laws of the State of New York,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of, or relating in any way
to
this Purchase Option shall be brought and enforced in the courts of the State
of
New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any process
or summons to be served upon the Company may be served by transmitting a copy
thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 8 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.
-13-
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.
-14-
| FMG ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ | |
|
Name: |
||
| Title: | ||
-15-
Form
to
be used to exercise Purchase Option:
Four
Forest Park
Farmington,
CT 06032
Attn:
Xxxxxx Xxxxx, Chief Executive Officer and President
Facsimile:
(___) ___-____
Date:_________________,
20__
The
undersigned hereby elects irrevocably to exercise all or a portion of the
within
Purchase Option and to purchase ____ Units of FMG Acquisition Corp. and hereby
makes payment of $____________ (at the rate of $____ per Unit) in payment
of the
Exercise Price pursuant thereto. Please issue the Common Shares 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" 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 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 S.E.C. RULE
17Ad-15).
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name
__________________________________________
__________________________________________
Address
__________________________________________
__________________________________________
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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 FMG Acquisition Corp. ("COMPANY") evidenced
by the
within Purchase Option and does hereby authorize the Company to transfer
such
right on the books of the Company.
Dated:___________________,
20__
__________________________________________
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 S.E.C. RULE
17Ad-15).
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