Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - Bonds.com Group, Inc. | bonds-8k_0112.htm |
| EX-3.1 - CERTIFICATE OF DESIGNATION - Bonds.com Group, Inc. | ex-3_1.htm |
| EX-10.1 - UNIT PURCHASE AGREEMENT - Bonds.com Group, Inc. | ex-10_1.htm |
| EX-10.3 - STOCKHOLDERS' AGREEMENT - Bonds.com Group, Inc. | ex-10_3.htm |
Exhibit
10.2
NEITHER
THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
INTO HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES
ACT”) OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
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No.
Preferred A-1
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137,280
Shares of Series A Participating Preferred
Stock
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Ordinary
Purchase Rights Certificate
BONDS.COM
GROUP, INC.
This
Ordinary Purchase Rights Certificate (this “Certificate”)
certifies that UBS AMERICAS
INC. or registered assigns, is the registered holder of ordinary purchase
rights (the “Ordinary
Purchase Rights”) expiring at 5:00 p.m., New York time on January 11,
2013 (the “Exercise
Period”) to purchase shares of Series A Participating Preferred Stock,
par value $0.0001 per share (“Series A Preferred”),
of Bonds.com Group, Inc., a Delaware corporation (the “Company”). This
Certificate entitles the holder upon exercise to receive from Company prior to
the Exercise Period, ONE HUNDRED THIRTY SEVEN THOUSAND TWO HUNDRED AND EIGHTY
(137,280) shares of Series A Preferred (the “Exercise Shares”) at
the initial exercise price (the “Exercise Price”) of
$37.50 per share payable in lawful money of the United States of America upon
surrender of this Certificate and payment of the Exercise Price at the office of
Company designated for such purpose, but only subject to the conditions set
forth herein and in the Unit Purchase Agreement dated as of January 11, 2010
between the Company and UBS Securities Inc. (the “Unit Purchase
Agreement”). Notwithstanding the foregoing, the Ordinary
Purchase Rights may be exercised without the exchange of funds pursuant to the
net exercise provisions set forth below. The Exercise Price and
number of Exercise Shares issuable upon exercise of the Ordinary Purchase Rights
represented by this Certificate are subject to adjustment upon the occurrence of
certain events set forth in Section 4 below.
Section
1. The Ordinary Purchase Rights
may not be exercised after the Exercise Period, and to the extent not exercised
by such time such Ordinary Purchase Rights shall become void.
Section
2. Intentionally
Omitted.
Section
3. The Ordinary Purchase Rights
may be exercised at any time prior to 5:00 p.m., New York time on January 11,
2013. The holder (which “holder” for purposes
of this Certificate means the registered holder) of the Ordinary Purchase Rights
evidenced by this Certificate may exercise some or all of the Ordinary Purchase
Rights evidenced by this Certificate by surrendering this Certificate, with the
form of election to purchase set forth hereon properly completed and executed,
together with payment of the Exercise Price in cash at the office of the Company
designated for such purpose. In the alternative, the holder of this
Certificate may exercise some or all of the Ordinary Purchase Rights evidenced
by this Certificate, during the Exercise Period, on a net basis, such that,
without the exchange of any funds, such holder receives that number of Exercise
Shares otherwise issuable (or payable) upon exercise of the Ordinary Purchase
Rights represented by this Certificate less that number of Exercise Shares
having a Current Market Price (as defined herein) at the time of exercise equal
to the aggregate Exercise Price that would otherwise have been paid by such
holder of Exercise Shares. In the event that upon any exercise of the
Ordinary Purchase Rights evidenced hereby the number of Exercise Shares issuable
upon such exercise shall be less than the total number of Exercise Shares
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Certificate evidencing the number of Exercise Shares not
exercised.
1
Section
4.
(a) Adjustments
Generally.
The
Exercise Price and the number of Exercise Shares issuable upon the exercise of
the Ordinary Purchase Rights evidenced by this Certificate are subject to
adjustment from time to time upon the occurrence of the events enumerated in
this Section 4. For purposes of this Section 4, “Shares” means shares
of Series A Preferred now or hereafter authorized of the Company. To
the extent that two or more provisions of this Section 4 provide duplicative
adjustments upon the occurrence of any one enumerated event, the holder shall
only be entitled to select one adjustment.
(b) Adjustment for Change in
Capital Stock.
If the
Company:
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(1)
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pays
a dividend or makes a distribution on its Shares in additional Shares or
other equity interests of the
Company;
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(2)
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subdivides
its outstanding Shares into a greater number of Shares;
or
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(3)
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combines
its outstanding Shares into a smaller number of Shares; then
the Exercise Price shall be adjusted in accordance with the
formula:
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E1= E x
O
A
Where:
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E1
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=
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the
adjusted Exercise Price.
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E
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=
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the
current Exercise Price.
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|
|
O
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=
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the
number of Shares issued and outstanding prior to such
action.
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|
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A
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=
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the
number of Shares issued and outstanding immediately after such
action.
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2
When any
adjustment is required to be made in the Exercise Price pursuant to this Section
4(b), the number of Shares purchasable upon the exercise of this Certificate
shall be changed to the number determined by dividing (i) an amount equal
to the number of shares issuable upon the exercise of this Certificate
immediately prior to such adjustment, multiplied by the Exercise Price in effect
immediately prior to such adjustment, by (ii) the Exercise Price in effect
immediately after such adjustment.
In the
case of a dividend or distribution, the adjustment shall become effective
immediately after the record date for determination of holders of Shares
entitled to receive such dividend or distribution, and in the case of a
subdivision, combination or reclassification, the adjustment shall become
effective immediately after the effective date of such corporate
action.
If after
an adjustment the holder, upon exercise of the Ordinary Purchase Rights, may
receive Shares of two or more classes of equity interests of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of equity interests. After such allocation, the exercise
privilege, the number of Shares issuable upon such exercise and the Exercise
Price of each class of equity interests shall thereafter be subject to
adjustment on terms comparable to those applicable to Shares in this Section
4.
Such
adjustment shall be made successively whenever any event listed above shall
occur.
(c) Adjustments for Issuances
Below the Exercise Price.
If the
Company distributes or grants any rights, options or warrants to any person
entitling it at any time after the record date mentioned below to purchase
Shares at an Aggregate Price Per Share (as defined below) less than the Exercise
Price, upon the exercise of any such rights, options or warrants, the Exercise
Price shall be adjusted to equal the Aggregate Price Per Share with respect to
such rights, options or warrants. The adjustment shall be made successively
whenever any such rights, options or warrants are issued and
exercised. As used herein, the term “Aggregate Price Per
Share” means, with respect to any right, option or warrant, the sum of
(i) the exercise price of such right, option or warrant and (ii) the amount of
consideration paid, if any, by the holder to the Company to acquire such right,
option or warrant.
If
Company issues any Shares for a consideration per Share less than the Exercise
Price, the Exercise Price shall be adjusted to equal the consideration per Share
paid in such issuance. The adjustment shall be made successively
whenever any such issuance is made, and shall become effective immediately after
such issuance.
If the
Company issues any securities convertible into or exchangeable for Shares for a
consideration per Share initially deliverable upon conversion or exchange of
such securities less than the Exercise Price, upon conversion or exchange of any
such securities, the Exercise Price shall be adjusted to equal the exercise
price with respect to convertible securities. The adjustment shall be made
successively whenever any such conversion or exchange is made.
3
Prior to
the exercise of the Ordinary Purchase Rights, if any, in the event that the
Company shall sell any shares of Common Stock to any person or entity at a price
less than $0.375 per share (the “Common Lesser
Price”), the holder shall be entitled to purchase the Shares at one
hundred (100) times the Common Lesser Price (subject to appropriate adjustment
in the event of any stock split, stock dividend, combination or other similar
recapitalization with respect to the Series A Preferred where there is not a
corresponding change to the Common Stock).
Prior to
the exercise of the Ordinary Purchase Rights, if any, if the Company
distributes, issues or grants any rights, options or warrants to any person
entitling it at any time after the record date mentioned below to purchase
shares of Common Stock at a Common Aggregate Price Per Share (as defined below)
less than the Exercise Price, upon the exercise of any such rights, options or
warrants, the Exercise Price shall be adjusted to equal the Common Aggregate
Price Per Share with respect to such rights, options or warrants (subject to
appropriate adjustment in the event of any stock split, stock dividend,
combination or other similar recapitalization with respect to the Series A
Preferred or Common Stock). The adjustment shall be made successively whenever
any such rights, options or warrants are issued and exercised. As
used herein, the term “Common Aggregate Price Per
Share” means, with respect to any right, option or warrant, the product
of (i) one hundred (100) (subject to appropriate adjustment in the event of any
stock split, stock dividend, combination or other similar recapitalization with
respect to the Series A Preferred where there is not a corresponding change to
the Common Stock), multiplied by (ii) the sum of (A) the exercise price of such
right, option or warrant and (B) the amount of consideration paid, if any, by
the holder to the Company to acquire such right, option or warrant.
The
provisions of this Section 4(c) shall not be applicable if the Company (or its
successor corporation) issues Shares, shares of Common Stock or other equity
interests pursuant to an Excluded Transaction. For the purposes hereof, the term
“Excluded
Transaction” shall mean: (i) the issuance of options and/or restricted
stock to employees and consultants of the Company and approved by the board of
directors of the Company; and (ii) warrants issued to third parties in strategic
transactions and approved by the board of directors of the Company.
(d) Adjustments for Certain
Other Dividends on the Series A Preferred.
In the
event the Company shall pay a dividend or make a distribution in cash,
securities or other assets to the holders of Series A Preferred, other than (i)
as described in Section 4(b)(1) above or Section 4(e) below; or (ii) regular
quarterly or other periodic dividends (any such non-excluded event being
referred to herein as an “Extraordinary
Dividend”), then the Exercise Price shall be decreased 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 Series A Preferred in respect of such Extraordinary Dividend. An
adjustment made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
4
(e) Certain
Definitions.
(1) Current Market
Price. The Current Market Price per Share on any date
is:
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(i)
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if
the Company’s Common Stock (or successor equity interests) is not
registered under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), the Fair Market Value (as defined below) of the Shares;
or
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(ii)
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if
the Company’s Common Stock (or successor equity interests) is registered
under the Exchange Act, the product of (A) the average of the Quoted
Prices of the shares of Common Stock (or successor equity interests) for
30 consecutive trading days commencing 45 trading days before the date in
question, multiplied by (B) 100 (subject to appropriate adjustment in the
event of any stock split, stock dividend, combination or other similar
recapitalization with respect to the Series A Preferred where there is not
a corresponding change to the Common Stock). The “Quoted Price”
of a share of Common Stock (or successor equity interest) is the last
reported sales price of a share of Common Stock (or successor equity
interest) as reported by Nasdaq National Market, or if the shares of
Common Stock (or successor equity interests) are listed on a national
securities exchange, the last reported sales price of a share of Common
Stock (or successor equity interest) on such exchange (which shall be for
consolidated trading if applicable to such exchange), or if neither so
reported or listed, the last reported bid price of a share of Common Stock
(or successor equity interests). In the absence of one or more
such quotations for shares of Common Stock, the Current Market Price of
the Shares (or successor equity interests) shall be determined as if the
Shares (or successor equity interests) was not registered under the
Exchange Act.
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(2) Fair Market
Value. Fair Market Value means the value obtainable upon a
sale in an arm’s length transaction to a third party under usual and normal
circumstances, with neither the buyer nor the seller under any compulsion to
act, with equity to both, as determined by the Board of Directors of Company
(the “Board”)
in good faith; provided, however, that the
Fair Market Value of the Shares shall be calculated as if 100% of the Company
were sold as a going concern and without regard to any discount for the lack of
liquidity or on the basis that the relevant Shares (or successor equity
interests) do not constitute a majority or controlling interest in the Company
and assuming, if applicable, the exercise or conversion of all in-the-money
warrants, convertible securities, options or other rights to subscribe for or
purchase any additional Shares or other equity interests of the Company or
securities convertible or exchangeable into such Shares or other equity
interests; and provided, further, that if
holder shall dispute the Fair Market Value as determined by the Board, the
Company shall retain an Independent Expert. The determination of Fair
Market Value by the Independent Expert shall be final, binding and conclusive on
Company and holder. All costs and expenses of the Independent Expert
shall be borne by the Company unless the determination of Fair Market Value by
the Independent Expert is less than 10% more favorable to holder than the Fair
Market Value determined by the Board, in which event the cost of the Independent
Expert shall be shared equally by holder and Company, or less than 5% more
favorable to holder than the Fair Market Value determined by the Board, in which
event the cost of the Independent Expert shall be borne solely by
holder.
5
(3) Independent
Expert. Independent Expert means an investment banking firm
reasonably agreeable to both the Company and the holder who does not (and whose
affiliates do not) have a financial interest in the Company or any of its
affiliates.
(e) Reorganizations.
If any
capital reorganization or reclassification of the capital stock of Company, any
consolidation or merger of the Company with another entity, or the sale, lease
or exchange of all or substantially all of the Company’s assets to another
entity shall be effected in such a way that holders of Shares shall be entitled
to receive stock, securities or assets with respect to or in exchange for such
shares, then, as a condition precedent to such reorganization, reclassification,
consolidation, merger, sale, lease or exchange, lawful and adequate provisions
shall be made whereby the holder shall thereafter have the right to purchase and
receive upon the basis and the terms and conditions specified in this
Certificate and in lieu of the Share immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such shares of
stock, securities or assets as may be issued or payable in such reorganization,
reclassification, consolidation, merger, sale, lease or exchange with respect to
or in exchange for the number of Shares purchasable and receivable upon the
exercise of the rights represented hereby had such rights been exercised
immediately prior thereto, and in any such case appropriate provision shall be
made with respect to the rights and interests of holder to the end that the
provisions hereof shall thereafter be applicable, as nearly as may be possible,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof. The Company will not effect any such
reorganization, recapitalization, consolidation, merger, sale, lease or
exchange, unless prior to the consummation thereof the successor entity (if
other than Company) resulting from such consolidation or merger or the entity
purchasing or leasing such assets or acquiring such surviving or resulting
entity shall assume by written instrument, executed and mailed or delivered to
holder at the last address thereof appearing on the books of the Company, the
obligation to deliver to such holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder may be entitled to
purchase.
(f) Notice by the
Company.
When any
adjustment is required to be made in the number of Shares purchasable hereunder
or the Exercise Price, the Company shall promptly mail to holder a certificate
setting forth (i) a brief statement of the facts requiring such adjustment, (ii)
the Exercise Price after such adjustment and (iii) the kind and amount of stock
or other securities or property into which this Certificate shall be exercisable
after such adjustment.
6
Section
5. Upon receipt by the Company of
evidence reasonably satisfactory to it and (a) in case of loss, theft or
destruction, if requested by the Company, upon receipt of indemnity
or security reasonably satisfactory to it, or (b) in the case of mutilation,
upon surrender and cancellation of this Certificate, the Company will make and
deliver a new certificate identical in tenor and date in lieu of this
Certificate.
Section
6. The Certificate, when
surrendered at the office of Company by the registered holder thereof in person
or by legal representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the Unit
Purchase Agreement, but without payment of any service charge, for another
Certificate or Certificates of like tenor evidencing in the aggregate a like
number of Exercise Shares.
Section
7. This Certificate, and any
Ordinary Purchase Rights evidenced hereby, may be assigned or transferred as
provided herein and in accordance with and subject to the provisions of
(i) applicable state securities laws, and (ii) the Securities Act and
the rules and regulations promulgated thereunder. Upon any transfer
or assignment of this Certificate, or any Ordinary Purchase Rights evidenced
hereby, the holder shall provide written notice of the transfer or assignment to
the Company, which shall include a representation from the holder that
(A) the transferee is a person to whom this Certificate may be legally
transferred without registration under the Securities Act, and (B) such
transfer will not violate any applicable law or governmental rule or regulation,
including, without limitation, any applicable federal or state securities
law. Any assignment or transfer shall be made by surrender of this
Certificate to the Company at its principal office with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, if
any. In such event, the Company shall, without charge, execute and
deliver a new certificate in the name of the assignee named in such instrument
of assignment in the amount so assigned and this Certificate shall be promptly
canceled; provided,
however, that in the
event that holder hereof shall assign or transfer less than the full amount of
the Ordinary Purchase Rights evidenced by this Certificate, a new certificate
evidencing the remaining portion of the Ordinary Purchase Rights evidenced by
this Certificate not so assigned or transferred shall be issued in the name of
holder.
Section
8. Until exercised, neither the
Ordinary Purchase Rights, the Unit Purchase Agreement (solely as it relates to
the Ordinary Purchase Rights), nor this Certificate entitles any holder hereof
to any rights of a stockholder of Company.
[Signature
Page Follows]
7
IN
WITNESS WHEREOF, the Company has caused this Certificate to be signed by a duly
authorized officer.
Dated: January
___, 2010
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BONDS.COM
GROUP, INC.
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||
| /s/ John J. Barry IV | ||
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By: John
J. Barry IV, President
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| /s/ Christopher Loughlin | ||
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By: Christopher
Loughlin, Secretary
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8
FORM OF
ASSIGNMENT
(To be
signed only upon assignment of any Ordinary Purchase Rights evidenced by this
Certificate)
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
__________________________________
__________________________________
__________________________________
(Name and
address of assignee must be printed or typewritten)
___________
shares of Bonds.com Group, Inc. Series A Participating Preferred Stock
purchasable under the Ordinary Purchase Rights evidenced by the within
Certificate, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Ordinary Purchase Rights on the
books of the Company, with full power of substitution in the
premises.
Dated:
_______________
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(Signature
of Registered Owner)
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FORM OF
ELECTION TO PURCHASE
(To be
executed upon exercise of the Ordinary Purchase Rights)
The
undersigned hereby irrevocably elects to exercise the right, represented by this
Certificate, to receive _______________ shares of Series A Participating
Preferred Stock and herewith tenders payment for such shares to the order of
Bonds.com Group, Inc. in the amount of $_______________ in accordance with the
terms hereof unless the holder is exercising the Ordinary Purchase Rights
pursuant to the net exercise provisions set forth in this
Certificate. The undersigned requests that a certificate for such
shares be registered in the name of ________________, whose address is
_______________ and that such shares be delivered to ________________, whose
address is _______________. If said number of shares is less than all
of the shares of Series A Participating Preferred Stock purchasable hereunder,
the undersigned requests that a new Certificate representing the remaining
balance of such shares be registered in the name of ________________, whose
address is _____________, and that such Certificate be delivered to
_______________, whose address is _______________.
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Signature:
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Date:
_______________