EXHIBIT 4.5
DRAFT 083000
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF,
AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION
EXCEPT AS HEREIN PROVIDED.
NOT EXERCISABLE PRIOR TO THE LATER OF ___________, 2001 OR THE CONSUMMATION
OF A BUSINESS COMBINATION AS DEFINED HEREIN. VOID AFTER 5:00 P.M. EASTERN
TIME, ___________, 2005.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
______ UNITS
OF
UNITY EMERGING TECHNOLOGY VENTURE ONE LTD.
1. PURCHASE OPTION.
THIS CERTIFIES THAT, in consideration of $100 duly paid by or
on behalf of ____________________ ("Holder"), as registered owner of this
Purchase Option, to Unity Emerging Technology Venture One Ltd. ("Company"),
Holder is entitled, at any time or from time to time, commencing on the later to
occur of ___________, 2001 or the consummation of a merger, exchange of capital
stock, asset acquisition or other similar business combination ("Business
Combination") ("Commencement Date"), and at or before 5:00 p.m., Eastern Time,
___________, 2005 ("Expiration Date"), but not thereafter, to subscribe for,
purchase and receive, in whole or in part, up to ___________________________
(______) units ("Units") of the Company, each Unit consisting of one
share of common stock of the Company, $.0001 par value per share ("Common
Stock"), and one Class A redeemable warrant ("Class A Warrant"). Each Class A
Warrant entitles the Holder of such warrant to purchase one share of Common
Stock and one Class B redeemable warrant ("Class B Warrant"). Each Class B
Warrant entitles the Holder of such warrant to purchase one share of Common
Stock and one Class C redeemable warrant ("Class C Warrant" and, together with
the Class A Warrants and the Class B Warrants, "Warrants"). Each Class C Warrant
entitles the Holder of such warrant to purchase one share of Common Stock. The
terms of the Class A Warrant, the Class B Warrant and the Class C Warrant are
identical to the respective terms of the Class A redeemable warrant, the Class B
redeemable warrant and the Class C redeemable warrant (collectively, the "Public
Warrants"), which have been registered for sale in connection with an offering
of Units to the public ("Offering") as more fully described in a registration
statement on Form S-1 [File No. 333-36754] ("Registration Statement"), except
that the expiration date of each of the Warrants is five years after the
effective date (the "Effective Date") of the Registration Statement. The terms
of the Public Warrants are fully described in that certain warrant agreement,
dated as of __________, 2000, between the Company and American Stock Transfer
& Trust Company. 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 that is not such a day in accordance with the terms
herein. During the period ending on the Expiration Date, the
Company agrees not to take any action that would terminate the Purchase Option.
This Purchase Option is initially exercisable at $6.60 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
Class A 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. If the subscription rights
represented hereby shall not be exercised at or before 5:00 p.m., Eastern time,
on the Expiration Date, this Purchase Option shall become 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 ("Act").
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 ("Act") or
applicable state law. The securities may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to
an exemption from registration under the Act and applicable
state law."
2.3 CONVERSION RIGHT.
2.3.1 DETERMINATION OF AMOUNT. In lieu of the payment of the
Exercise Price in cash as set forth in Section 2.1 hereof, the Holder shall have
the right (but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into securities ("Conversion Right") as follows:
Upon exercise of the Conversion Right, the Company shall deliver to the Holder
(without payment by the Holder of any of the Exercise Price in cash) that number
of Units equal to the quotient obtained by dividing (x) the "Value" (as defined
below) of the portion of the Purchase Option being converted by (y) the "Market
Price" (as defined below). The "Value" of the portion of the Purchase Option
being converted shall equal the remainder derived from subtracting (a) the
Exercise Price multiplied by the number of Units underlying the portion of the
Purchase Option being converted from (b) the Market Price of the Units,
multiplied by the number of Units underlying the portion of the Purchase Option
being converted. As used herein, the term "Market Price" shall be deemed to be
the last reported sale price of the Units on the date prior to the date the
Conversion Right is exercised, or, in case no such reported sale takes place on
such day, the average of the last reported sale prices for the immediately
preceding three trading days, in either case as officially reported by the
principal securities exchange on which the Units are listed or admitted to
trading, or, if the Units are not listed or admitted to trading on any national
securities ex change or if any such exchange on which the Units are listed is
not their principal trading market, the last reported sale price as furnished by
the National Association of Securities Dealers, Inc. ("NASD") through the Nasdaq
National Market or SmallCap Market, or, if applicable, the OTC Bulletin Board,
or if the Units are not listed or admitted to trading on any of the foregoing
markets, or similar organization, as determined in good faith by resolution of
the Board of Directors of the
2
Company, based on the best information available to it; provided, however, that
if the Units are no longer quoted on the principal trading market on which the
Common Stock and the Warrants are traded, the Market Price of the Units shall be
equal to the average last reported sale price of the Common Stock for the five
trading days immediately preceding such date ("Common Stock Price") plus the
average last reported sale price of the Class A Warrants, the average last
reported sale price of the Class B Warrants and the average last reported sale
price of the C Warrants, in each case for the five trading days preceding such
date, as quoted on the principal trading market for such securities determined
as described above; and provided further that if the Common Stock is traded but
the Warrants are not, the Market Price of the Units shall be equal to four times
the Common Stock Price less the sum of the then exercise prices of the Class A
Warrants, the Class B Warrants and the Class C Warrants.
2.3.2 EXERCISE OF CONVERSION RIGHT. The Conversion Right may
be exercised by the Holder on any business day on or after the Commencement Date
and not later than the Expiration Date by delivering to the Company this
Purchase Option with a duly executed exercise form attached hereto with the
conversion section completed.
2.4 REDEMPTION OF WARRANTS. The Company may redeem the Warrants
only to the extent that the Purchase Option has been exercised and the Warrants
are outstanding. In the event that the Company has redeemed the Class A Warrants
included in the Units sold to the public before this Purchase Option has been
exercised in full ("Redemption Date"), then the Holder shall have a period of
seven business days following the exercise of any portion of this Purchase
Option after the Redemption Date to exercise the Class A Warrants issuable upon
the exercise of the Purchase Option and, to exercise the Class B Warrants
issuable upon exercise of the Class A Warrants and, to exercise the Class C
Warrants issuable upon exercise of the Class B Warrants. The Company shall
redeem such Warrants on the eighth business day following the exercise of the
Purchase Option if such Warrants have not been exercised during the seven-day
period.
3. TRANSFER.
3.1 GENERAL RESTRICTIONS. The registered Holder of this Purchase
Option, by its acceptance hereof, agrees that it will not sell, transfer or
assign or hypothecate this Purchase Option prior to the Commencement Date to
anyone other than (i) an officer or director of GBI Capital Partners Inc. ("GBI"
or the "Representative"), or of any broker-dealer that executed the Agreement
Among Underwriters with the Representative (each an "Underwriter" and together
with GBI, the "Underwriters") or of any broker-dealer that executed the Selected
Dealer Agreement with the Representative ("Selected Dealer") in connection with
the Offering, or (ii) any Underwriter or Selected Dealer. On and after the
Commencement Date, transfers to others may be made subject to compliance with or
exemptions from applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the Purchase Option and
payment of all transfer taxes, if any, payable in connection therewith. The
Company shall immediately transfer this Purchase Option on the books of the
Company and shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing the right to
purchase the aggregate number of Units purchasable hereunder or such portion of
such number as shall be contemplated by any such assignment.
3.2 RESTRICTIONS IMPOSED BY THE ACT. The securities underlying
this Purchase Option shall not be transferred unless and until (i) the Company
has received the opinion of counsel for the Holder that the securities may be
sold pursuant to an exemption from registration under the Act, the
3
availability of which is established to the reasonable satisfaction of the
Company (the Company hereby agreeing that the opinion of Graubard Xxxxxx &
Xxxxxx shall be deemed satisfactory evidence of the availability of an
exemption), or (ii) a registration statement 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
("Commission").
4. NEW PURCHASE OPTIONS TO BE ISSUED.
4.1 PARTIAL EXERCISE, CONVERSION OR TRANSFER. Subject to the
restrictions in Section 3 hereof, this Purchase Option may be exercised,
converted or assigned in whole or in part. In the event of the exercise,
conversion or assignment hereof in part only, upon surrender of this Purchase
Option for cancellation, together with the duly executed exercise or assignment
form and funds (except in the case of conversion) sufficient to pay any Exercise
Price and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Purchase Option of like tenor to this Purchase Option in
the name of the Holder evidencing the right of the Holder to purchase the
aggregate number of Units purchasable hereunder as to which this Purchase Option
has not been exercised, converted or assigned.
4.2 LOST CERTIFICATE. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Purchase Option and of reasonably satisfactory indemnification, the Company
shall execute and deliver a new Purchase Option of like tenor and date. Any such
new Purchase Option executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute an additional contractual obligation
on the part of the Company.
5. REGISTRATION RIGHTS.
5.1 DEMAND REGISTRATION.
5.1.1 GRANT OF RIGHT. The Company, upon written demand
("Initial Demand Notice") of the Holder(s) of at least 51% in the aggregate
("Majority Holders") of the securities underlying the Purchase Options,
including the Common Stock, the Warrants and the Common Stock underlying the
Warrants (collectively, the "Registrable Securities"), agrees to register, on
one occasion, all or any portion of the Registrable Securities requested by the
Majority Holders in the Initial Demand Notice. On such occasion, the Company
will file a registration statement or a post-effective amendment to the
Registration Statement covering the Registrable Securities within 60 days after
receipt of the Initial Demand Notice and use its best efforts to have such
registration statement or post-effective amendment declared effective as soon as
possible thereafter. If the Company willfully fails to comply with the
provisions of this Section 5.1.1, the Company shall, in addition to any other
equitable or other relief available to the Holder(s), be liable for any and all
incidental, special and consequential damages sustained by the Holder(s). The
demand for registration may be made at any time during a period of four years
beginning one year from the Effective Date. The Company covenants and agrees to
give written notice of its receipt of any Initial Demand Notice by any Holder(s)
to all other registered Holders of the Purchase Options and/or the Registrable
Securities within 10 days from the date of the receipt of any such Initial
Demand Notice.
5.1.2 TERMS. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. The Company agrees to use its reasonable
4
best efforts to cause the filing required herein to become effective promptly
and to qualify or register the Registrable Securities in such States as are
reasonably requested by the Holder(s); provided, however, that in no event shall
the Company be required to register the Registrable Securities in a State in
which such registration would cause (i) the Company to be obligated to 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 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 consecutive 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 at any
time commencing one year from the Effective Date and terminating on the seventh
anniversary of 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).
5.2.2 TERMS. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. In the event of such a proposed registration, the
Company shall furnish the then Holders of outstanding Registrable Securities
with not less than 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 "piggyback" rights provided for herein
by giving written notice, within 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 months from the date that the Holders of the
Registrable Securities are first given the opportunity to sell all of such
securities.
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 filed in accordance with this Section 5 and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys' fees and other expenses reasonably incurred in investigating,
preparing or defending against 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 Underwriter contained in Section 5 of the Underwriting Agreement.
The Holder(s) of the Registrable Securities to be sold pursuant to
5
such registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company against all loss, claim, damage, expense
or liability (including all reasonable attorneys' fees and other expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which they may become subject under the Act, the Exchange Act or
otherwise, arising from information furnished by or on behalf of such Holders,
or their successors or assigns, in writing, for specific inclusion in such
registration statement to the same extent and with the same effect as the
provisions contained in Section 5 of the Underwriting Agreement pursuant to
which the Underwriters have agreed to indemnify the Company.
5.3.2 EXERCISE OF WARRANTS. Nothing contained in this Purchase
Option shall be construed as requiring the Holder(s) to exercise their Purchase
Options or Warrants prior to or after the initial filing of any registration
statement or the effectiveness thereof.
5.3.3 DOCUMENTS DELIVERED TO HOLDERS. The Company shall
furnish GBI, 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 GBI, as representative of the Holders participating in
the offering, and to the managing underwriter 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 GBI, 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 NASD. Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and inde pendent auditors, all to such
reasonable extent and at such reasonable times and as often as GBI, as
representative of the Holders, shall reasonably request. The Company shall not
be required to disclose any confidential information or other records to GBI, as
representative of the Holders, or to any other person (i) 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 and (ii) if such disclosure would be in violation of Regulation
FD promulgated under the Act.
5.3.4 UNDERWRITING AGREEMENT. The Company shall enter into an
underwriting agreement with the managing underwriter, 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 underwriter, and shall contain such
representations, warranties and covenants by the Company and such other terms as
are customarily contained in agreements of that type used by the managing
underwriter. The Holders
6
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 underwriter shall also be made to and for the benefit of such
Holders. Such Holders shall not be required to make any representations or
warranties to or agreements with the Company or the underwriter except as they
may relate to such Holders, their securities 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) when 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 then held by
such Holder, and (ii) when 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 6.3 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, recapitalization or reclassification of shares of
Common Stock or other similar event, then, on the effective date thereof, the
number of Units issuable on exercise of the Purchase Option shall be increased
in proportion to such increase in outstanding shares.
7
6.1.2 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 date
thereof, the number of Units issuable on exercise of the Purchase Option shall
be decreased in proportion to such decrease in outstanding shares.
6.1.3 ADJUSTMENTS IN EXERCISE PRICE. Whenever the number of
Units purchasable upon exercise of this Purchase Option is adjusted, as provided
in this Section 6.1, the Exercise Price shall be adjusted (to the nearest cent)
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of Units purchasable
upon the exercise of this Purchase Option immediately prior to such adjustment,
and (y) the denominator of which shall be the number of Units so purchasable
immediately thereafter.
6.1.4 REORGANIZATIONS, ETC. If after the date hereof, any
capital reorganization or reclassification of the Common Stock of the Company,
or consolidation or merger of the Company with another corporation, or the sale
of all or substantially all of its assets to another corporation or other
similar event shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, or sale, lawful and fair provision
shall be made whereby the Holders shall thereafter have the right to purchase
and receive, upon the basis and upon the terms and conditions specified in the
Purchase Option and in lieu of the Units immediately theretofore purchasable and
receivable upon the exercise of the rights represented thereby, such shares of
stock, securities, or assets as may be issued or payable with respect to or in
exchange for the number of securities equal to the number of Units immediately
theretofore purchasable and receivable upon the exercise of the rights
represented by the Purchase Option, had such reorganization, reclassification,
consolidation, merger, or sale not taken place and in such event, appropriate
provision shall be made with respect to the rights and interests of the Holders
to the end that the provisions hereof (including, without limitation, provisions
for adjustments of the Exercise Price and of the number of Units purchasable
upon the exercise of the Purchase Option) shall thereafter be applicable, as
nearly as may be, to any share of stock, securities, or assets thereafter
deliverable upon the exercise hereof. The Company shall not effect any such
consolidation, merger, or sale unless, prior to the consummation thereof, the
successor corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation purchasing such assets, shall
assume, by written instrument executed and delivered to the Holders its
obligation to deliver such shares of stock, securities, or assets which, in
accordance with the foregoing provisions, such Holders may be entitled to
purchase.
6.1.5 CHANGES IN FORM OF PURCHASE OPTION. This form of
Purchase Option need not be changed because of any change pursuant to this
Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of Units as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to 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 that 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
8
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 that 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 Class A 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 Class A
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, 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 and payment of the respective
Warrant exercise price therefor, all shares of Common Stock and other securities
issuable upon such exercises 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 Registrable Securities to be listed (subject to official
notice of issuance) on all securities exchanges (or, if applicable on the Nasdaq
National Market or SmallCap Market) on which 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 or to
receive notice 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.
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
9
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 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 ("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
overnight 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 following address or to such other address as the
Company may designate by notice to the Holders:
Unity Emerging Technology Venture One Ltd.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx, President
9. MISCELLANEOUS.
9.1 AMENDMENTS. The Company and GBI may from time to time
supplement or amend this Purchase Option without the approval of any of the
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and GBI may deem necessary or
desirable and which the Company and GBI deem shall not adversely affect the
interest of the Holders. All other modifications or amendments shall require the
written consent of and be signed by the party against whom enforcement of the
modification or amendment is sought.
9.2 HEADINGS. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this Purchase
Option.
9.3 ENTIRE AGREEMENT. This Purchase Option (together with the
other agreements and documents being delivered pursuant to or in connection with
this Purchase Option) constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.4 BINDING EFFECT. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
permitted assignees, respective successors, legal representative and assigns,
and no other person shall have or be construed to have any legal
10
or equitable right, remedy or claim under or in respect of or by virtue of this
Purchase Option or any provisions herein contained.
9.5 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Purchase
Option shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of, or relating in any way to this Purchase Option shall be brought and
enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be served upon the Company may be
served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 8 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 form the other party(ies) all of its reasonable
attorneys' fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
9.6 WAIVER, ETC. The failure of the Company or the Holder to at
any time enforce any of the provisions of this Purchase Option shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Purchase Option or any provision hereof or the right
of the Company or any Holder to thereafter enforce each and every provision of
this Purchase Option. No waiver of any breach, non-compliance or non-fulfillment
of any of the provisions of this Purchase Option shall be effective unless set
forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of
any other or subsequent breach, non-compliance or non-fulfillment.
9.7 EXECUTION IN COUNTERPARTS. This Purchase Option may be
executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.
9.8 EXCHANGE AGREEMENTS. As a condition of Xxxxxx's receipt and
acceptance of this Purchase Option,
(a) if GBI designated Holder to receive the Purchase Option,
Holder agrees that, at any time prior to the complete exercise of this Purchase
Option by Holder, if the Company and GBI enter into an agreement ("GBI Exchange
Agreement") pursuant to which they agree that all outstanding Purchase Options
held by GBI and/or designees of GBI 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 GBI Exchange Agreement; and
(b) if GKN Securities Corp. ("GKN") designated Holder to
receive the Purchase Option, Xxxxxx agrees that, at any time prior to the
complete exercise of this Purchase Option by Holder, if the Company and GKN
enter into an agreement ("GKN Exchange Agreement") pursuant to which they agree
that all outstanding Purchase Options held by GKN and/or designees of GKN 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 GKN Exchange Agreement.
11
IN WITNESS WHEREOF, the Company has caused this Purchase
Option to be signed by its duly authorized officer as of the ____ day of
________, 2000.
UNITY EMERGING TECHNOLOGY VENTURE ONE LTD.
By: ____________________________
Xxxxxxxx Xxxxxxxx
President
12
Form to be used to exercise Purchase Option:
Unity Emerging Technology Venture One Ltd.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx, President
Date:_________________, ____
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase ____ Units of Unity Emerging Technology
Venture One Ltd. 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 Class A Warrants as to which this Purchase Option is
exercised in accordance with the instructions given below.
OR
The undersigned hereby elects irrevocably to convert _________
of the Units purchasable under the within Purchase Option into _________ shares
of Common Stock and ________ Class A Warrants of Unity Emerging Technology
Venture One Ltd. (based on a "Market Price" of $___________). Please issue the
Common Stock and Class A Warrants in accordance with the instructions given
below.
______________________________
Signature
______________________________
Print Name
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.
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 Unity Emerging Technology Venture One
Ltd. ("Company") evidenced by the within Purchase Option and does hereby
authorize the Company to transfer such right on the books of the Company.
Dated: ___________________, ____
______________________________
Signature
______________________________
Print Name
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.
