PLACEMENT WARRANT PURCHASE AGREEMENT
PLACEMENT
WARRANT
PURCHASE AGREEMENT
PLACEMENT
WARRANT PURCHASE AGREEMENT
(this
“Agreement”) made as of this ___ day of _____, 2008 among Spring Creek
Acquisition Corp, a Cayman Islands corporation (the “Company”) and the
undersigned (the “Purchasers”).
WHEREAS,
the
Company has filed with the Securities and Exchange Commission (“SEC”) a
registration statement on Form S-1, as amended (File No. 333-147284) (the
“Registration Statement”), in connection with the Company’s initial public
offering (the “IPO”) of up to 4,500,000 units, each unit (“Unit”) consisting of
one ordinary share of the Company, $.0001 par value (the “Ordinary Shares”), and
(ii) one warrant (the “Warrants”), each Warrant to purchase one Ordinary Share;
and
WHEREAS,
the
Company desires to sell in a private placement to the Purchasers (the
“Placement”) an aggregate of 1,430,000 Warrants (the “Placement Warrants”)
substantially identical to the Warrants being issued in the IPO pursuant to
the
terms and conditions hereof and as set forth in the Registration Statement,
except that the Placement Warrants to be issued in the Placement shall not
be
registered under the Securities Act of 1933, as amended (the “Securities
Act”);
WHEREAS,
each
Purchaser desires to acquire the number of Placement Warrants set forth opposite
his or her name on Schedule
A
hereto;
WHEREAS,
the
Placement Warrants shall be governed by the Warrant Agreement filed as an
exhibit to the Registration Statement (the “Warrant Agreement”);
and
WHEREAS,
the
Purchasers are entitled to registration rights with respect to the Placement
Warrants and the Ordinary Shares underlying such Placement Warrants
(collectively, the “Registrable Securities”) on the terms set forth in the
Registration Rights Agreement filed as an exhibit to the Registration
Statement.
NOW,
THEREFORE,
for and
in consideration of the premises and the mutual covenants hereinafter set forth,
the parties hereto do hereby agree as follows:
1. Purchase
of Placement Warrants.
The
Purchasers hereby agree, directly or through nominees, to purchase an aggregate
of 1,430,000 Placement Warrants at a purchase price of $1.00 per Placement
Warrant, or an aggregate of $1,430,000 (the “Purchase Price”). Such purchases
shall be in the names and amounts set forth on Schedule
A
hereto.
2. Closing.
The
closing of the purchase and sale of the Placement Warrants (the “Closing”) will
take place at such time and place as the parties may agree (the “Closing Date”),
but in no event later than the date on which the SEC declares the Registration
Statement effective (the “Effective Date”). At least 24 hours prior
to the Effective Date, the Purchasers shall pay the Purchase Price by wire
transfer of funds to an account maintained by Loeb & Loeb LLP (“Loeb”),
counsel for the Company. Immediately prior to the closing of the IPO, Loeb
shall deposit the Purchase Price into the trust account described in the
Registration Statement (the “Trust Account”). The certificates for the Warrants
comprising the Placement Warrants shall be delivered to the Purchasers promptly
after the closing of the IPO.
3. Redemption.
Not
less than all of the outstanding Placement Warrants may be redeemed, at the
option of the Company, with the prior consent of EarlyBirdCapital, Inc., at
any
time while they are exercisable and prior to their expiration, at the office
of
the warrant agent, upon the notice referred to in the Warrant Agreement. Upon
such redemption at the option of the Purchasers, the Purchasers may exercise
their Placement Warrants on a cashless basis, so long as such Placement Warrants
are held by the Purchasers or their Affiliates. In such event, each Purchaser
would pay the exercise price by surrendering the Placement Warrants for that
number of Ordinary Shares equal to the quotient obtained by dividing (x) the
product of the number of Ordinary Shares underlying the Placement Warrants,
multiplied by the difference between the exercise price of the Placement
Warrants and the fair market value of an Ordinary Share by (y) the fair market
value of an Ordinary Share. The “fair market value” is the average reported last
sale price of the ordinary shares for the 10 trading days ending on the third
trading day prior to the date on which the notice of redemption is sent to
the
holders of the Placement Warrants. With respect to any natural person, the
term
Affiliate shall also include any member of said person’s immediate family, any
family limited partnership for said person and any trust, voting or otherwise,
of which said person is a trustee or of which said person or any of said
person’s immediate family is a beneficiary. For purposes of the foregoing, the
term “control” and variations thereof means the possession of the power to
direct or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, all other terms and conditions of the Placement
Warrants are identical to the terms and conditions of the Warrants.
4. Restrictions
on Transfer.
From
the Effective Date until the consummation by the Company of a Business
Combination (the “Restriction Period”), no sale, transfer or other disposition
may be made of any or all of the Placement Warrants except (i) by gift to a
member of a Purchaser’s immediate family or to a trust or other entity, the
beneficiary of which is a Purchaser or a member of a Purchaser’s immediate
family, (ii) by virtue of the laws of descent and distribution upon death of
any
Purchaser; or (iii) pursuant to a qualified domestic relations order;
provided,
however,
that
such permissive transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this
Agreement. During the Restriction Period, no Purchaser shall pledge or grant
a
security interest in his or her Placement Warrants or grant a security interest
in his or her rights under this Agreement.
5. Waiver
of Liquidation Distributions.
In
connection with the Placement Warrants purchased pursuant to this Agreement,
the
Purchasers hereby waive any and all right, title, interest or claim of any
kind
in or to any liquidating distributions by the Company in the event of a
liquidation of the Company upon the Company’s failure to timely complete a
Business Combination. For purposes of clarity, any Ordinary Shares purchased
in
the IPO or the aftermarket by the Purchasers shall be eligible to receive any
liquidating distributions by the Company.
6. Representations
and Warranties of the Purchasers.
Each
Purchaser hereby represents and warrants on behalf of itself to the Company
that:
6.1 Such
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
6.2 The
Placement Warrants are being acquired by such Purchaser for such Purchaser’s own
account, only for investment purposes and not with a view to, or for resale
in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act.
6.3 Such
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms.
7. Waiver
and Indemnification.
The
Purchasers hereby waive any and all rights to assert any present or future
claims, including any right of rescission, against the Company with respect
to
their purchase of the Placement Warrants, and each Purchaser agrees jointly
and
severally to indemnify and hold the Company harmless from all losses, damages
or
expenses that relate to claims or proceedings brought against the Company by
any
Purchaser of the Placement Warrants or their transferees, heirs, assigns or
any
subsequent holders of the Placement Warrants.
8. Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same instrument. This Agreement or any counterpart may
be
executed via facsimile transmission, and any such executed facsimile copy shall
be treated as an original.
9. Governing
Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
2
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the __ day of _____,
2008.
3
SCHEDULE
A
