Exhibit
10.1
PRIVATE
PLACEMENT PURCHASE
AGREEMENT
Private Placement
Purchase Agreement (this "Agreement")
made as of this day of , 2011,
by and between Greenwich Kahala Aviation Ltd., a Bermuda exempted company incorporated
under the Companies Act of 1981 of Bermuda (the "Company"),
and the parties listed on Schedule 1 hereto (each, a "Purchaser"
and, together, the “Purchasers”).
WHEREAS:
| (A) |
Each of
the Purchasers has a substantive, pre-existing relationship with the Company; |
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| (B) |
The
Company has filed a registration statement on Form F-1 (File No. 333-171562)
(as amended, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act")
with the Securities and Exchange Commission (the
"SEC") in connection
with the initial public offering of the Company (the “IPO”)
pursuant to the terms of the Underwriting Agreement, dated ________, 2011
by and among the Company and FBR Capital Markets & Co. and Xxxxx Fargo
Securities, LLC, as representatives of the several underwriters named on
Schedule I thereto; and |
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| (C) |
Concurrent
with the consummation of the IPO, the Company desires to issue and sell,
and each Purchaser desires to purchase, upon the terms and conditions set
forth in this Agreement, American Depositary Shares (“ADSs”),
each representing one common share, par value $0.0001 per share, of the
Company (the "Private Placement Shares" and each, a "Private Placement
Share"). |
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. |
SALE
AND PURCHASE OF PRIVATE
PLACEMENT SHARES.
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Subject to and concurrent
with the consummation of the IPO and subject to the terms and conditions of
this Agreement, and in reliance on the representations and warranties set forth
herein, the Company shall issue and sell to each Purchaser and each such Purchaser
shall purchase from the Company, at a purchase price per Private Placement Share
equal to the public offering price per share of the ADSs sold in the IPO, the
number of Private Placement Shares set forth opposite the name of such Purchaser
on Schedule 1 hereto. Xxxxxxx X. Xxxxxx shall pay the equivalent of USD$150,000
in Euros (the “Euro purchase price”). Such Euro purchase price shall
be determined by the number of Euros equivalent to US$150,000 (as determined
through the daily noon buying rate in the City of New York for cable transfers
of Euro as certified for customer purposes by the Federal Reserve Bank of New
York expressed as Euros per US$1.00 (the “noon buying rate”)). The
Euro purchase price shall be determined by the noon buying rate on the business
day immediately prior to the closing date of the IPO, but shall be subject to
the adjustment described below:
The Company shall calculate
the number of Euros equivalent to US$150,000 as determined by the noon buying
rate on the closing date of the IPO (the “closing date Euro price”).
If the closing date Euro price is:
| (a) |
Greater
than the Euro purchase price, Xx. Xxxxxx shall reimburse the Company in
Euros for the difference; |
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| (b) |
Less than
the Euro purchase price, the Company shall reimburse Xx. Xxxxxx in Euros
for the difference. |
The closing of the purchase
and sale of the Private Placement Shares hereunder, including payment for and
delivery of the Private Placement Shares, will take place at the offices of
the Company or the Company’s legal counsel concurrently with, and shall
be subject to, the consummation of the IPO. Delivery of the Private Placement
Shares shall be made to the Purchasers against payment of the aggregate subscription
price for the Private Placement Shares to or upon the order of the Company by
wire transfer of, immediately available funds to accounts specified by the Company.
| 3. |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. |
In connection with the
issuance and sale of the Private Placement Shares, the Company hereby represents
and warrants to the Purchaser the following:
| 3.1 |
The Company has a substantive,
pre-existing relationship with the Purchaser and was directly contacted
by the Purchaser or its agents outside of the IPO effort. The Company (i)
did not identify or contact the Purchaser through the marketing of the IPO
and (ii) was not independently contacted by the Purchaser as a result of
the general solicitation by means of the Registration Statement. |
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| 4. |
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER |
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Each
of the Purchasers hereby represents and warrants, severally and not jointly
and with respect to himself or itself only, to the Company that: |
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| 4.1 |
The
Purchaser is an "accredited investor" as that term is defined in Rule 501
of Regulation D promulgated under the Securities Act of 1933, as amended
(the “Securities Act”).
The Purchaser has accurately completed the Accredited
Investor Questionnaire attached hereto as Exhibit A
indicating the basis for such Purchaser’s accredited investor status. |
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| 4.2 |
The
Private Placement Shares are being acquired for the Purchaser’s own
account, only for investment purposes and not with a view to, or for resale
in connection with, any public distribution or public offering thereof within
the meaning of the Securities Act. |
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| 4.3 |
If
the Purchaser is not a natural person, the Purchaser has been duly incorporated
and is in good standing in its jurisdiction, and has all necessary power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. |
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| 4.4 |
If
the Purchaser is a natural person, the Purchaser has all requisite legal
capacity to acquire and hold the Private Placement Shares and to execute,
deliver and comply with the terms of this Agreement and to consummate the
transactions contemplated hereby. |
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| 4.5 |
All
action necessary to be taken by the Purchaser to authorize the execution,
delivery and performance of this Agreement and all other agreements and
instruments delivered by the Purchaser in connection with the transactions
contemplated hereby has been duly and validly taken and this Agreement has
been duly executed and delivered by the Purchaser. This Agreement constitutes
the valid, binding and enforceable obligation of the Purchaser, enforceable
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws of general application now or hereafter in effect
affecting the rights and remedies of creditors and by general principles
of equity (regardless of whether enforcement is sought in a proceeding at
law or in equity). The purchase by the Purchaser of the Private Placement
Shares does not conflict with any material contract by which the Purchaser
or its property or assets is bound and if the Purchaser is not a natural
person, the organizational documents of the Purchaser, or any laws or regulations
or decree, ruling or judgment of any court applicable to the Purchaser or
its property or assets. |
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| 4.6 |
The
Purchaser understands and acknowledges that (i) the offering of the Private
Placement Shares pursuant to this Agreement will not be registered under
the Securities Act on the grounds that the offering and sale of the Private
Placement Shares is exempt from registration under the Securities Act pursuant
to Rule 506 of Regulation D thereof and exempt from registration pursuant
to applicable state securities or blue sky laws and, therefore, the Private
Placement Shares will be characterized as "restricted securities" under
the Securities Act and such laws and may not be sold unless the Private
Placement Shares are subsequently registered under the Securities Act and
qualified under state law or unless an exemption from such registration
and such qualification is available. |
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| 4.7 |
The
Purchaser has a substantive, pre-existing relationship with the Company
and was directly contacted by the Company or the Company’s agents outside
of the IPO effort. The Purchaser (i) was not identified or contacted through
the marketing of the IPO and (ii) did not independently contact the Company
as a result of the general solicitation by means of the Registration Statement. |
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| 4.8 |
The
Purchaser (i) has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the Purchaser’s
prospective investment in the Private Placement Shares; (ii) has the ability
to bear the economic risks of the Purchaser’s prospective investment;
and (iii) has not been offered the Private Placement Shares by any form
of advertisement, article, notice, or other communication published in any
newspaper, magazine, or similar medium; or broadcast over television or
radio; or any seminar or meeting whose attendees have been invited by any
such medium. |
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| 4.9 |
The
Purchaser has been given the opportunity to ask questions of and receive
answers from the Company concerning the Company, the Private Placement Shares
and other related matters. The Purchaser further represents and warrants
to the Company that it has been furnished with all information it deems
necessary or desirable to evaluate the merits and risks of the acquisition
of the Private Placement Shares and that the Company has made available
to the Purchaser or its agents all documents and information relating to
an investment in the Private Placement Shares requested by or on behalf
of the Purchaser. In evaluating the suitability of an investment in the
Private Placement Shares, the Purchaser has not relied upon any other representations
or other information (other than as contemplated by the preceding sentences),
whether oral or written, made by or on behalf of the Company. |
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| 4.10 |
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 Private Placement Shares or the fairness or suitability
of the investment in the Private Placement Shares, nor have such authorities
passed upon or endorsed the merits of the offering of the Private Placement
Shares. |
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| 5. |
RESTRICTION
ON SALE OF PRIVATE
PLACEMENT SHARES |
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Until twelve (12) months
from the date of this Agreement, each of the Purchasers will not, without
the prior written consent of the Company, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
for the sale of, lend or otherwise dispose of or transfer, directly or indirectly,
any Private Placement Shares, or any securities convertible into or exercisable
or exchangeable for equity securities of the Company, (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part,
directly or indirectly, any of the economic consequences of ownership of
such Private Placement Shares or other such equity securities of the Company,
whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of such Private Placement Shares or such other securities,
in cash or otherwise or (iii) publicly announce an intention to effect any
transaction specified in clause (i) or (ii) above (which Private Placement
Shares shall include any securities issued with respect to such Private
Placement Shares by way of a stock dividend, stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization). Notwithstanding the foregoing, the Purchaser may
transfer Private Placement Shares: (1) to an immediate family member; (2)
to one or more trusts of which the sole beneficiaries thereof are the Purchaser
and/or the Purchaser’s immediate family members; (3) to limited partners,
members or stockholders of the Purchaser, (4) for estate planning purposes;
and (5) as a bona fide gift or gifts; provided, however, that in the case
of any transfer, it shall be a pre-condition to such transfer that the transferee
or donee has agreed in writing with the Company to be bound by the terms
of this Agreement. |
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| 6. |
REGISTRATION
RIGHTS AGREEMENT |
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As
a further inducement for the Purchasers to purchase the Private Placement
Shares, at the time of the completion of the IPO, the Company and the Purchasers
shall enter into a registration rights agreement, substantially in the form
of Exhibit B hereto, pursuant to which the Company will grant certain
registration rights to the Purchasers relating to the Private Placement
Shares. |
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| 7. |
SUCCESSORS
AND ASSIGNS |
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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 or their obligations and
rights hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld. |
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This Agreement may
not be amended, modified or waived, in whole or in part, except by an agreement
in writing signed by each of the parties hereto. |
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| 9. |
COUNTERPARTS;
FACSIMILE |
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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 or electronic transmission, and any such executed
facsimile or electronic copy shall be treated as an original. |
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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. The parties hereby agree 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 submit to such jurisdiction, which jurisdiction
shall be exclusive. The parties hereby waive any objection to such exclusive
jurisdiction and agree not to plead or claim that such courts represent
an inconvenient forum. |
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| 11. |
THIRD
PARTY BENEFICIARIES |
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This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other person. |
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Each certificate, if
any, representing the Private Placement Shares shall be endorsed with the
following legend or a substantially similar legend: |
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"The securities represented
by this certificate have not been registered under the Securities Act of
1933, as amended, and are "restricted securities" as defined in Rule 144
promulgated under the Securities Act. The securities may not be sold or
offered for sale or otherwise distributed except (i) in conjunction with
an effective registration statement for the shares under the Securities
Act of 1933, as amended, or (ii) pursuant to an opinion of counsel, satisfactory
to the company, that such registration or compliance is not required as
to said sale, offer, or distribution." |
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In case any provision
of this Agreement shall be found by a court of law to be invalid, illegal,
or unenforceable, the validity, legality, and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. |
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This Agreement and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof and they supersede, merge, and render void every other
prior written and/or oral understanding or agreement among or between the
parties hereto. |
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Any notice provided
for in this Agreement will be in writing and will be deemed properly delivered
if either personally delivered or sent by overnight courier or telecopier
or mailed certified or registered mail, return receipt requested, postage
prepaid, to the recipient at the address specified below: |
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(i) |
if to a Purchaser,
at such Purchaser’s address on the stock transfer books of the Company;
and |
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(ii) |
if to the Company,
at:
Xxxxxxxxxxx Xxxx
Xxxxxxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Facsimile: x000 0 0000000 |
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and thereafter at such
other address, notice of which is given in accordance with the provisions
of this Section 15. Any such notice shall be effective (A) if delivered
personally or by telecopy, when received, (B) if sent by overnight courier,
when receipted for, and (C) if mailed, three (3) days after being mailed
as described above. |
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
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GREENWICH KAHALA
AVIATION LTD. |
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By: _______________________________________________________ |
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Name: |
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Title: |
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GK HANNOVER,
INC. |
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By: _______________________________________________________ |
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Name: |
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Title: |
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__________________________________________________________ |
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XXXXXXX X. XXXXXX |
SCHEDULE
1
Purchasers
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Purchaser |
Number
of ADSs |
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| 1. |
GK
Hannover, Inc., a Delaware corporation
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262,500 |
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| 2. |
Xxxxxxx
X. Xxxxxx, the Company's Chief Financial Officer, Treasurer and Secretary
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12,500 |
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EXHIBIT
A
Accredited
Investor Questionnaire
Accredited Investor
Status (Please check the applicable boxes):
| 1) |
A bank as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended (the "Securities
Act") acting
in its individual
or fiduciary capacity; a savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Securities Act acting in its individual
or fiduciary capacity; a broker or dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended; an insurance company
as defined in section 2(13) of the Securities Act; an investment company
registered under the Investment Company Act of 1940, as amended, or a business
development company as defined in Section 2(a)(48) of the Securities Act;
a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act of 1958; an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
and (i) the investment decision is made by a plan fiduciary, as defined
in Section 3(21) of ERISA, which is either a bank, savings and loan association,
insurance company or registered investment adviser, or (ii) the employee
benefit plan has total assets over $5,000,000, or (iii) the employee benefit
plan is self directed and its investment decisions are made solely by persons
that are accredited investors (within the meaning of Rule 501(a) under the
Securities Act); a plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions for the benefit of its employees, and such plan has assets
in excess of $5,000,000. o |
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| 2) |
A private business
development company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940, as amended. o |
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| 3) |
An organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, a
corporation, a Massachusetts or similar business trust, or a partnership,
not formed for the specific purpose of acquiring the Private Placement Shares,
with total assets in excess of $5,000,000. o |
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| 4) |
Any director, executive
officer, or general partner of the issuer of the securities being offered
or sold; o |
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| 5) |
Any natural person
whose individual net worth, or joint net worth with that person's spouse,
at the time of his purchase exceeds $1,000,000. Effective July 2010, a natural
person investor is no longer allowed to include the value of his primary
residence on calculating his net worth; o |
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| 6) |
Any natural person
who had an individual income in excess of $200,000 in each of the two most
recent years or joint income with that person's spouse in excess of $300,000
in each of those years and has a reasonable expectation of reaching the
same income level in the current year; o |
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| 7) |
A trust with total
assets in excess of $5,000,000, that was not formed for the specific purpose
of purchasing the Private Placement Shares and whose purchase is directed
by a sophisticated person as described in Rule 506(b)(2)(ii). o |
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| 8) |
An entity
in which all of the equity owners are accredited investors. o |
EXHIBIT
B
Form
of Registration Rights Agreement
See
Exhibit 10.20
