GHL ACQUISITION CORP. FOUNDER’S SECURITIES PURCHASE AGREEMENT
FOUNDER’S
SECURITIES PURCHASE AGREEMENT
THIS
FOUNDER’S SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated as of November 12, 2007, is entered into by and among GHL Acquisition
Corp., a Delaware corporation (the “Company”) and Xxxxxxxxx & Co.,
Inc., a Delaware corporation (the “Purchaser”).
WHEREAS,
the Company intends to file a registration statement (the “Registration
Statement”) for the initial public offering of units (the “Initial Public
Offering”), each unit consisting of one share of the Company’s common stock,
par value $0.001 per share (a “Share”), and one warrant to purchase one
Share at an exercise price of $7.50 per Share.
WHEREAS,
concurrent with the execution and delivery of this Agreement, the Purchaser
desires to purchase and the Company desires to issue and sell, upon the terms
and conditions set forth in this Agreement, for an aggregate purchase price
of
$25,000 (the “Founder’s Units Purchase Price”), 11,500,000 units (the
“Founder’s Units”), each unit consisting of one share of the Company’s
common stock, par value $0.001 per share (the “Founder’s Shares”) and one
warrant to purchase one Share at an exercise price of $7.50 per share (the
“Founder’s Warrants”).
WHEREAS,
concurrent with the closing of the Initial Public Offering, the Purchaser
desires to purchase and the Company desires to issue and sell, upon the terms
and conditions set forth in this Agreement, for an aggregate purchase price
of
$8,000,000 (the “Private Placement Warrants Purchase Price”), 8,000,000
additional warrants, each to purchase one Share at an exercise price of $7.50
per share (the “Private Placement Warrants”).
NOW
THEREFORE, in consideration of the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree
as
follows:
Section
1. Authorization, Purchase and Sale; Terms of the Founder’s
Units, Founder’s Shares, Founder’s Warrants and Private Placement
Warrants.
A.
Authorization of the Founder’s Units, Founder’s Shares, Founder’s Warrants,
Private Placement Warrants and Shares Underlying each of the Founder’s Warrants
and Private Placement Warrants. The Company has duly authorized
the issuance and sale to the Purchaser of each of the Founder’s Units, Founder’s
Shares, Founder’s Warrants, Private Placement Warrants and the Shares underlying
each of the Founder’s Warrants and Private Placement Warrants (collectively, the
“Securities”).
B.
Purchase and Sale of the Founder’s Units and Private Placement
Warrants. Concurrently with the execution and delivery of this
Agreement, in the case of the Founder’s Units, and concurrently with the closing
of the Initial Public Offering, in the case of the Private Placement Warrants,
or as each such date may be extended from time to time by mutual agreement
of
the parties (in each case, the “Closing Date”), the Company shall issue
and sell to
the
Purchaser and the Purchaser shall purchase from the Company, the Founder’s Units
(consisting of the Founder’s Shares and Founder’s Warrants) for the Founder’s
Units Purchase Price and the Private Placement Warrants for the Private
Placement Warrants Purchase Price, respectively. On the applicable Closing
Date,
the Company shall deliver certificates evidencing the Founder’s Units, Founder’s
Shares and Founder’s Warrants, or the Private Placement Warrants, as the case
may be, to be purchased by the Purchaser hereunder, in each case registered
in
the Purchaser’s name, upon the payment by the Purchaser of the Founder’s Units
Purchase Price or the Private Placement Warrants Purchase Price, as the case
may
be, by wire transfer of immediately available funds (or by such other means
as
the Company and the Purchaser shall agree) to the Company in accordance with
the
Company’s instructions.
C.
Terms of the Founder’s Units, Founder’s Shares, Founder’s Warrants and
Private Placement Warrants.
i. Founder’s
Units: Each Unit of the Founder’s Units shall consist of one Founder’s Share
and one Founder’s Warrant and shall have the terms set forth in the Unit
Certificate attached as Exhibit A hereto.
ii. Founder’s
Shares: The Founder’s Shares shall have the terms set forth in the
Certificate of Incorporation of the Company and the Founder’s Share Certificate
attached as Exhibit B hereto. Without limiting the foregoing,
the Purchaser hereby expressly agrees that if the Company consummates the
Initial Public Offering, then (i) in connection with the stockholder vote
required to approve a merger, capital stock exchange, asset acquisition or
other
similar business combination with one or more businesses or assets (a
“Business Combination”), the Purchaser agrees to (x) vote the Founder’s
Shares in accordance with a majority of the shares of common stock voted by
holders of shares of common stock issued in the Initial Public Offering and
(y)
vote the Founder’s Shares in favor of an amendment to the Company’s amended and
restated certificate of incorporation to provide for the Company’s perpetual
existence, and (ii) the Purchaser agrees to waive any right to participate
in
any liquidation distribution to the extent set forth in Section 3.D of this
Agreement.
iii. Founder’s
Warrants: The Founder’s Warrants shall have the terms set forth in the
Warrant Agreement dated the date hereof between the Company and American Stock
Transfer & Trust Company, as set forth as Exhibit C hereto (as
amended, restated or supplemented from time to time, the “Warrant
Agreement”).
iv. Private
Placement Warrants: The Private Placement Warrants shall have the terms set
forth in the Warrant Agreement, as such terms may be amended prior to the
Closing Date for the Private Placement Warrants with the consent of the
Purchaser, which such consent shall be evidenced by the purchase of the Private
Placement Warrants on the Closing Date therefor.
v. Transfer
Restrictions: In addition to the restrictions on transfer set forth in
Section 9 hereof, the Purchaser shall not sell or transfer the Founder’s Units,
Founder’s Shares, Founder’s Warrants and the Shares underlying the Founder’s
Warrants for a period of 180 days from the date the Company completes its
initial business combination except to a Company officer, director or employee,
or any other person or entity associated or affiliated with
Greenhill
2
&
Co.,
Inc. (each, a “Permitted Transferee”), who agrees in writing with the
Company to be subject to the transfer restrictions in this clause (v), to vote
the Founder’s Shares as provided in (ii) above; to waive any right to
participate in any liquidation distribution as provided in Section 1.C.(ii)
above and to the terms of adjustment of the Founder’s Units as provided in
Section 1.C.(vii) below. During this period, the Purchaser and its
Permitted Transferees shall retain all other rights of holders of Shares,
including, without limitation, the right to vote their Shares (except as
described above with respect to a Business Combination) and the right to receive
cash dividends, if declared. If dividends are declared and payable in
Shares, such dividends will also be subject to the restrictions contained in
this Section 1.C.(v). In addition to the restrictions on transfer set
forth in Section 9 hereof, the Purchaser shall not sell or transfer the Private
Placement Warrants and the Shares underlying the Private Placement Warrants
until after the date the Company completes its initial business combination
except to a Permitted Transferee, and the Purchaser acknowledges that the
Private Placement Warrants and the Shares issuable upon exercise of the Private
Placement Warrants are subject to the restrictions on transfer set forth in
the
Warrant Agreement.
vi. Registration
Rights: In connection with the closing of the Initial Public Offering, the
Company and the Purchaser shall enter into an agreement (the “Registration
Rights Agreement”) granting the Purchaser registration rights with respect
to the Securities.
vii. Adjustment
of Founder’s Units:
(a) If
the underwriters with respect to the Initial Public Offering do not exercise
the
over-allotment option proposed to be granted to them by the Company, the
Purchaser and any Permitted Transferees agree to forfeit to the Company a number
of Founder’s Units necessary to ensure that the aggregate amount of Founder’s
Shares held by the Purchaser and any Permitted Transferees does not exceed
20%
of the issued and outstanding common stock of the Company upon consummation
of
the Initial Public Offering. The Purchaser and any Permitted
Transferees agree to take any and all action reasonably requested by the Company
necessary to effect any adjustment pursuant to this paragraph
vii(a). The Company will not make any cash payment to the Purchaser
or any Permitted Transferees in respect of any such adjustment.
(b) If
the number of units offered to the public in connection with the Initial Public
Offering is increased or decreased, the Purchaser and any Permitted Transferees
agree with the Company and the Company hereby agrees with the Purchaser and
any
Permitted Transferees that the Founder’s Units (including the Founder’s Units
subject to forfeiture) will be adjusted in the same proportion as the increase
or decrease of the units offered to the public in order to ensure that the
aggregate amount of Founder’s Shares held by the Purchaser and any Permitted
Transferees does not fall below or exceed 20% of the issued and outstanding
common stock of the Company upon consummation of the Initial Public Offering
(including any shares of common stock issued pursuant to the underwriters’
over-allotment option). The Purchaser and any Permitted Transferees
agree to take any and all action reasonably requested by the Company necessary
to effect any adjustment pursuant to this paragraph vii(b); provided that the
Company will not make or receive any cash payment to or from the Purchaser
or
any Permitted Transferees in respect of any such adjustment.
3
(c) The
Purchaser acknowledges and agrees that any additional units it may hold pursuant
to Sections 1.C.(vii)(a) and Sections 1.C.(vii)(b) above (A) shall be subject
to
the voting, waiver of liquidation, transfer restrictions and adjustment
provisions set forth in this Agreement, and (B) shall bear the legend set forth
in Section 9.A(i) below.
Section
2. Representations and Warranties of the
Company.
As
a
material inducement to the Purchaser to enter into this Agreement and purchase
the Founder’s Units and Private Placement Warrants, the Company hereby
represents and warrants to the Purchaser as of the date hereof and the
applicable Closing Date that:
A.
Organization and Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business in every jurisdiction in
which
the failure to so qualify would reasonably be expected to have a material
adverse effect on the financial condition, operating results or assets of the
Company. The Company possesses all requisite corporate power and
authority necessary to carry out the transactions contemplated by this Agreement
and the Warrant Agreement.
B.
Authorization; No Breach.
(i) The
execution and delivery of this Agreement, the Warrant Agreement, the Founder’s
Warrants and the Private Placement Warrants and performance of this Agreement
and the Warrant Agreement have been duly authorized by the Company as of the
applicable Closing Date. This Agreement constitutes the valid and
binding obligation of the Company, enforceable in accordance with its
terms. The Warrant Agreement constitutes, and upon issuance in
accordance with, and payment pursuant to, the terms of the Warrant Agreement
and
this Agreement, the Founder’s Warrants and the Private Placement Warrants will
constitute, valid and binding obligations of the Company, enforceable in
accordance with their respective terms as of the applicable Closing
Date.
(ii) The
execution and delivery by the Company of this Agreement, the Warrant Agreement
and the sale and issuance of each of the Securities and the fulfillment of
and
compliance with the respective terms hereof and thereof by the Company, do
not
and will not as of the applicable Closing Date (i) conflict with or result
in a
breach of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result in the creation of any lien, security interest, charge
or
encumbrance upon the Company’s capital stock or assets, (iv) result in a
violation of, or (v) require any authorization, consent, approval, exemption
or
other action by or notice or declaration to, or filing with, any court or
administrative or governmental body or agency pursuant to the Certificate of
Incorporation of the Company or the bylaws of the Company, or any material
law,
statute, rule or regulation to which the Company is subject, or any agreement,
order, judgment or decree to which the Company is subject, except for any
filings required after the date hereof under federal or state securities
laws.
C.
Title to Securities. Upon issuance in accordance with, and
payment pursuant to, the terms hereof and the Warrant Agreement, as the case
may
be, each of the Securities will be duly and validly issued, fully paid and
nonassessable. Upon issuance in accordance with, and payment pursuant
to, the terms hereof and the Warrant Agreement, as the case may be, the
4
Purchaser
will have or receive good title to the Securities, free and clear of all liens,
claims and encumbrances of any kind, other than (a) transfer restrictions
hereunder and under the other agreements contemplated hereby, (b) transfer
restrictions under federal and state securities laws, and (c) liens, claims
or
encumbrances imposed due to the actions of the Purchaser.
D.
Governmental Consents. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the Warrant Agreement, or the consummation by
the
Company of any other transactions contemplated hereby.
Section
3. Representations and Warranties of the
Purchaser.
As
a
material inducement to the Company to enter into this Agreement and issue and
sell the Founder’s Units and Private Placement Warrants, the Purchaser hereby
represents and warrants to the Company as of the date hereof and the applicable
Closing Date that:
A.
Capacity and State Law Compliance. The Purchaser has engaged
in the transactions contemplated by this Agreement within a state in which
the
offer and sale of the Securities is permitted under applicable securities
laws. The Purchaser understands and acknowledges that the purchase of
Shares upon the exercise of the Private Placement Warrants and the Founder’s
Warrants will require the availability of an exemption from registration under
federal and/or state securities laws and that any sale of such Shares shall
require registration or the availability of an exemption from registration
under
federal and/or state securities laws.
B.
Authorization; No Breach.
(i) This
Agreement constitutes a valid and binding obligation of the Purchaser,
enforceable in accordance with its terms.
(ii) The
execution and delivery by the Purchaser of this Agreement and the fulfillment
of
and compliance with the respective terms hereof by the Purchaser do not and
shall not as of the applicable Closing Date conflict with or result in a breach
of the terms, conditions or provisions of the certificate of formation of the
Purchaser or any other agreement, instrument, order, judgment or decree to
which
the Purchaser is subject.
C.
Investment Representations.
(i) The
Purchaser is acquiring the Securities for its own account, for investment only
and not with a view towards, or for resale in connection with, any public sale
or distribution thereof.
(ii) The
Purchaser is an “accredited investor” as such term is defined in Rule 501(a)(3)
of Regulation D.
(iii) The
Purchaser understands that the Securities are being offered and will be sold
to
it in reliance on specific exemptions from the registration requirements of
the
United States federal and state securities laws and that the Company is relying
upon the truth and
5
accuracy
of, and the Purchaser’s compliance with, the representations and warranties of
the Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire such
Securities.
(iv) The
Purchaser did not decide to enter into this Agreement as a result of any general
solicitation or general advertising within the meaning of Rule 502(c) under
the
Securities Act of 1933, as amended (the “Securities Act”).
(v) The
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities which have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the executive officers and directors of the Company. The
Purchaser understands that its investment in the Securities involves a high
degree of risk. The Purchaser has sought such accounting, legal and
tax advice as the Purchaser has considered necessary to make an informed
investment decision with respect to the Purchaser’s acquisition of the
Securities.
(vi) The
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities by the Purchaser nor have such authorities passed upon or
endorsed the merits of the offering of the Securities.
(vii) The
Purchaser understands that: (a) the Securities have not been and are not being
registered under the Securities Act or any state securities laws, and may not
be
offered for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder or (B) sold in reliance on an exemption therefrom; and
(b)
except as specifically set forth in the Registration Rights Agreement, neither
the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. In this regard,
the
Purchaser understands that the Securities and Exchange Commission has taken
the
position that promoters or affiliates of a blank check company and their
transferees, both before and after a Business Combination, are deemed to be
“underwriters” under the Securities Act when reselling the securities of a blank
check company. Based on that position, Rule 144 adopted pursuant to
the Securities Act would not be available for resale transactions of the
Securities despite technical compliance with the requirements of such Rule,
and
the Securities can be resold only through a registered offering or in reliance
upon another exemption from the registration requirements of the Securities
Act. The Purchaser is able to bear the economic risk of its
investment in the Securities for an indefinite period of time.
(viii) The
Purchaser has such knowledge and expertise in financial and business matters,
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of companies in the development
stage
such as the Company, is capable of evaluating the merits and risks of an
investment in the Securities and is able to bear the economic risk of an
investment in the Securities in the amount contemplated
hereunder. The Purchaser has adequate means of providing for its
current financial needs and contingencies and will have no current or
anticipated future needs for liquidity which would be jeopardized by
the
6
investment
in the Securities. The Purchaser can afford a complete loss of its
investment in the Securities.
D.
Waiver of Right to Amounts in the Trust Account and
Indemnification.
(i) The
Purchaser hereby waives any and all right, title, interest or claim of any
kind
in or to any distribution of the trust account established by the Company for
the deposit of proceeds from the Initial Public Offering and the sale of the
Private Placement Warrants, as a result of any liquidation of the trust account,
with respect to the Founder’s Shares (“Claim”) and hereby waives any
Claim it may have in the future as a result of, or arising out of, any contracts
or agreements with the Company and will not seek recourse against the trust
account for any reason whatsoever except for any amounts to which it may be
entitled upon liquidation of the Company in respect of the Purchaser’s ownership
of Shares other than the Founder’s Shares. The foregoing waiver shall
be limited to the Claim and shall not be deemed a waiver of any other claim
the
Purchaser may now or in the future have against the Company.
(ii) The
Purchaser acknowledges and agrees that the stockholders of the Company,
including those who purchase the units in the Initial Public Offering, are
and
shall be third-party beneficiaries of the foregoing provisions of Section 3.D.
of this Agreement.
(iii) The
Purchaser agrees that to the extent any waiver of rights under this Section
3.D.
is ineffective as a matter of law, the Purchaser has offered such waiver for
the
benefit of the Company as an equitable right that shall survive any statutory
disqualification or bar that applies to a legal right. The Purchaser
acknowledges the receipt and sufficiency of consideration received from the
Company hereunder in this regard.
Section
4. Conditions of the Purchaser’s
Obligations.
The
obligation of the Purchaser to purchase and pay for the Founder’s Units and
Private Placement Warrants is subject to the fulfillment, on or before the
applicable Closing Date, of each of the following conditions:
A.
Representations and Warranties. The representations and
warranties of the Company contained in Section 2, shall be true and correct
at
and as of the applicable Closing Date as though then made.
B.
Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement
that
are required to be performed or complied with by it on or before the applicable
Closing Date.
C.
No Injunction. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority
over
the matters contemplated hereby, which prohibits the consummation of any of
the
transactions contemplated by this Agreement or the Warrant
Agreement.
7
Section
5. Conditions of the Company’s
Obligations.
The
obligations of the Company to the Purchaser under this Agreement are subject
to
the fulfillment, on or before the applicable Closing Date, of each of the
following conditions:
A.
Representations and Warranties. The representations and
warranties of the Purchaser contained in Section 3 shall be true and correct
at
and as of the applicable Closing Date as though then made.
B.
Performance. The Purchaser shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement
that
are required to be performed or complied with by it on or before the applicable
Closing Date.
C.
Corporate Consents. The Company shall have obtained the
consent of its Board of Directors authorizing the execution, delivery and
performance of this Agreement and the Warrant Agreement and the issuance and
sale of the Founder’s Units and the Private Placement Warrants.
D.
No Injunction. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority
over
the matters contemplated hereby, which prohibits the consummation of any of
the
transactions contemplated by this Agreement or the Warrant
Agreement.
Section
6. Termination.
This
Agreement may be terminated at any time prior to the applicable Closing Date
as
it relates only to the Securities to be purchased pursuant to this Agreement
on
and after such Closing Date upon the mutual written consent of the Company
and
the Purchaser.
Section
7. Survival of Representations and
Warranties.
All
of the
representations and warranties contained herein shall survive the applicable
Closing Date.
Section
8. Definitions.
Terms
used
but not otherwise defined in this Agreement shall have the meaning assigned
such
terms in the Registration Statement.
Section
9. Miscellaneous.
A.
Legends; Transfer Restrictions.
(i) Legends. The
certificates evidencing the Founder’s Units and the Founder’s Shares will
include the legend set forth on ExhibitsA and B hereto,
respectively, which the Purchaser has read and understands. The
Founder’s Warrants, the Private Placement Warrants and Shares issued upon
exercise of the Private Placement Warrants and the Founder’s
Warrants
8
will
include the legend set forth in Exhibit B to the Warrant Agreement
in the case of the Warrants and in the Warrant Agreement in the case of the
Shares, which the Purchaser has read and understands.
(ii) Transfer
Restrictions. By accepting the Securities, the Purchaser agrees,
prior to any transfer of the Securities, to give written notice to the Company
expressing its desire to effect such transfer and describing briefly the
proposed transfer. Upon receiving such notice, the Company shall
present copies thereof to its counsel and the Purchaser agrees not to make
any
disposition of all or any portion of the Securities unless and
until:
(a) there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement, in which case the legends set forth above with respect
to the Securities sold pursuant to such registration statement shall be removed;
or
(b) if
reasonably requested by the Company, (A) the Purchaser shall have furnished
the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that
such disposition will not require registration of such Securities under the
Securities Act, (B) the Company shall have received customary representations
and warranties regarding the transferee that are reasonably satisfactory to
the
Company signed by the proposed transferee and (C) the Company shall have
received an agreement by such transferee to the restrictions contained in the
legends referred to in Section 9.A(i) hereof.
Notwithstanding
the foregoing, the Purchaser also understands and acknowledges that the transfer
of the Founder’s Units, Founder’s Shares, Founder’s Warrants and the Private
Placement Warrants and exercise of the Founder’s Warrants and the Private
Placement Warrants are subject to the specific conditions to such transfer
or
exercise as outlined herein and the Warrant Agreement as to which the Purchaser
specifically assents by its execution hereof.
(iii) Stop
Transfer Notations. The Company may, from time to time, make stop
transfer notations in its records and deliver stop transfer instructions to
its
transfer agent to the extent its counsel considers it necessary to ensure
compliance with federal and state securities laws and the transfer restrictions
contained elsewhere in this Agreement and the Warrant Agreement.
B.
Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by
or
on behalf of any of the parties hereto shall bind and inure to the benefit
of
the respective successors of the parties hereto whether so expressed or
not. Notwithstanding the foregoing or anything to the contrary
herein, the parties may not assign this Agreement.
C.
Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only
to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
9
D.
Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, none of which need contain the signatures of more
than
one party, but all such counterparts taken together shall constitute one and
the
same agreement.
E.
Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word “including”
in this Agreement shall be by way of example rather than by
limitation.
F.
Governing Law. This Agreement shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
construed in accordance with the internal laws of said State. Each of
the parties hereto also irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of this Agreement or the
transactions contemplated hereby.
G.
Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands
and other communications shall be sent:
|
If
to the Company:
|
c/o
Greenhill & Co., Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax
No. (000)
000-0000
Attention:
General
Counsel
|
|
|
With
a copy (not constituting notice) to:
|
Xxxxxx
Xxxxxxxxxxx
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax
No.: (000) 000-0000
|
|
|
If
to the Purchaser:
|
Xxxxxxxxx
& Co., Inc.
c/o
Greenhill & Co., Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax
No. (000)
000-0000
Attention:
General
Counsel
|
or
to such
other address or to the attention of such other person as the recipient party
has specified by prior written notice to the sending party.
H.
No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation
10
arises,
this Agreement shall be construed as if drafted jointly by the parties hereto,
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first written above.
| COMPANY: | |||
| By | |||
| Name: | |||
| Title: | |||
| PURCHASER: | |||
|
XXXXXXXXX
& CO., INC.
|
|||
| By | |||
| Name: | |||
| Title: | |||
Exhibit
A
SPECIMEN
OF UNIT CERTIFICATE
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No.__________
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Incorporated
under the Laws of the State of Delaware
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_______
UNIT(S)
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UNIT(S)
EACH CONSISTING OF ONE SHARE OF COMMON STOCK AND ONE WARRANT TO PURCHASE
ONE SHARE OF COMMON STOCK
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SEE
REVERSE FOR CERTAIN
DEFINITIONS
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THIS
CERTIFIES THAT ____________________________________________IS THE OWNER
OF____________________________________________________________________________
UNIT(S). Each Unit (“Unit”) consists of one (1) share of common
stock, par value $0.001 per share (“Common Stock”), of GHL Acquisition Corp., a
Delaware corporation (the “Company”), and one warrant (each, a
“Warrant”). Each Warrant entitles the holder to purchase one (1)
share of Common Stock for $7.50 per share (subject to
adjustment). The Common Stock and Warrant comprising each Unit
represented by this certificate are not transferable separately prior to the
thirty-fifth day following the date of the prospectus with respect to the
Company’s initial public offering (the “IPO”) unless Banc of America Securities
LLC informs the Company of its decision to allow earlier separate
transfer. The terms of the Warrants are governed by the Warrant
Agreement dated November 12, 2007 between the Company and American Stock
Transfer & Trust Company, as amended, restated or supplemented from time to
time (the “Warrant Agreement”), and are subject to the terms and provisions
contained therein, all of which terms and provisions the holder of this
certificate consents to by acceptance hereof. Copies of the Warrant
Agreement are on file at the office of the Company, and are available to any
Warrant holder on written request and without cost.
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO
SUBJECT TO FORFEITURE AND ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE AND OTHER
MATTERS PURSUANT TO A FOUNDER’S SECURITIES PURCHASE AGREEMENT DATED NOVEMBER 12,
2007, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE
OFFICES.
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER
A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE CORPORATION.
WITNESS
the seal of the Company and the facsimile signature of its duly authorized
officer.
Dated: ,
2007
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2007
CORPORATE
SEAL DELAWARE
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Authorized
Officer
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The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN
COM
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as
tenants in common
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Unif
Gift Min Act -
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________
Custodian __________
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TEN
ENT
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tenants
by the entireties
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(Cust)
(Minor)
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JT
TEN
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as
joint tenants with right of survivorship and not as tenants in
common
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Under
Uniform Gifts to Minors Act: ____________________
(State)
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Additional
abbreviations may also be used though not in the above list.
The
Company will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, option or other
special rights of each class of stock or series thereof of the Company and
the
qualifications, limitations, or restrictions of such preferences and/or
rights. This certificate and the Units represented hereby are issued
and shall be held subject to the terms and conditions applicable to the
securities underlying and comprising the Units.
For
Value
Received, hereby
sell, assign and transfer unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF
ASSIGNEE
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(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
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Units
represented by the within Certificate, and do hereby irrevocably constitute
and
appoint _________________ Attorney, to transfer the said Units on the books
of
the within named Company with full power of substitution in the
premises.
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Dated
__________________
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By:
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NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
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Exhibit
B
SPECIMEN
FOUNDER’S COMMON STOCK CERTIFICATE
| NUMBER | SHARES |
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON
STOCK
SEE
REVERSE FOR
CERTAIN
DEFINITIONS
This
Certifies that
is
the owner of
FULLY
PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.001
EACH
OF THE COMMON STOCK OF
transferable
on the books of the Company in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. Witness the seal of
the Company and the facsimile signatures of its duly authorized
officers.
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Dated:
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GHL
Acquisition Corp.
2007
CORPORATE
SEAL
DELAWARE
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CHIEF
EXECUTIVE OFFICER
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SECRETARY
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The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN
COM
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as
tenants in common
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UNIF
GIFT MIN ACT -
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________
Custodian __________
|
|
TEN
ENT
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tenants
by the entireties
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(Cust
(Minor)
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JT
TEN
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as
joint tenants with right of survivorship and not as tenants in
common
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under
Uniform Gifts to Minors Act: ____________________
(State)
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Additional
Abbreviations may also be used though not in the above
list.
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GHL
Acquisition Corp.
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The
Company will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative participating,
optional
or other special rights of each class of stock or series thereof
of the
Company and the qualifications, limitations, or restrictions of such
preferences and/or rights. This certificate and the shares
represented hereby are issued and shall be held subject to all the
provisions of the Certificate of Incorporation and all amendments
thereto
and resolutions of the Board of Directors providing for the issue
of
shares of Preferred Stock (copies of which may be obtained from the
secretary of the Company), to all of which the holder of this certificate
by acceptance hereof assents.
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THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS,
AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION
IS
AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO (i) FORFEITURE,
(ii) ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE AND (iii) VOTING
REQUIREMENTS AND HOLDERS OF THE SECURITIES WAIVING ANY RIGHT TO
PARTICIPATE IN A LIQUIDATION DISTRIBUTION IN CERTAIN CIRCUMSTANCES,
IN
EACH CASE PURSUANT TO A FOUNDER’S SECURITIES PURCHASE AGREEMENT DATED
NOVEMBER 12, 2007, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY
AT ITS
EXECUTIVE OFFICES.
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS
UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE
CORPORATION.
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For
value received, _________________________________________ hereby
sell,
assign and transfer unto
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PLEASE
INSERT SOCIAL
SECURITY
OR OTHER
IDENTIFYING
NUMBER
OF ASSIGNEE
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(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE)
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shares
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of
the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
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Attorney
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to
transfer the said stock on the books of the within named Company
will full
power of substitution in the premises.
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Dated
__________________
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Notice: The
signature to this assignment must correspond with the name as written
upon
the face of the certificate in every particular, without alteration
or
enlargement or any change whatever.
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Signature(s)
Guaranteed:
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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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Exhibit
C
WARRANT
AGREEMENT
