GREENSTREET ACQUISITION CORP. FOUNDER UNIT SUBSCRIPTION AGREEMENT
XXXXXXXXXXX
ACQUISITION CORP.
THIS
FOUNDER UNIT SUBSCRIPTION AGREEMENT
(this “Agreement”) is made as of the 14th
day of December, 2007, by and between Xxxxxxxxxxx Acquisition Corp., a Delaware
corporation (the “Company”), and GRST
Acquisition, LLC
(“Purchaser”).
WHEREAS,
the Company desires to issue and sell, and Purchaser desires to purchase and
acquire, Units (as defined herein) on the terms and conditions hereinafter
set
forth;
NOW,
THEREFORE, for and in consideration of the promises and mutual covenants set
forth herein, it is agreed between the parties as follows:
1.
Purchase
of Units.
Purchaser hereby subscribes for and purchases from the Company, and the Company
hereby issues and sells to Purchaser, 10,781,250 units (the “Units”) at a
purchase price of $0.005 per Unit for an aggregate purchase price of $53,906.25.
Each Unit consists of one share of the common stock of the Company, par value
$0.001 per share (the “Common Stock”), and one warrant (a “Warrant” and,
together with the Units and the Common Stock, the “Securities”) exercisable for
one share of Common Stock. Each Warrant shall entitle the holder thereof to
purchase one share of Common Stock at an exercise price of $6.00, in accordance
with the terms of the Warrant as set forth in the Warrant Agreement to be
entered into by and between the Company and American Stock Transfer & Trust
Company, as warrant agent. The Warrant Agreement shall be substantially in
the
form attached hereto as Exhibit A (the “Warrant Agreement”).
2.
Payment
of Purchase Price.
The purchase price for the Units shall be tendered in full on the date
hereof.
3.
Redemption
of Units.
If the underwriters (the “Underwriters”) in the Company’s initial public
offering (the “IPO”) do not exercise in full their over-allotment option to be
granted by the Company pursuant
to an underwriting agreement by and among the Underwriters and the Company,
then
the Company shall redeem from Purchaser, at a redemption price equal to $0.005
per Unit, a number of Units equal to 1,406,250 multiplied by the percentage
of
the Underwriters’ over-allotment option that remains unexercised as of the
expiration date thereof.
4.
[Intentionally
Omitted.]
5.
Restrictive
Legends.
All certificates representing the Securities (and any underlying securities
thereof) shall have endorsed thereon legends in substantially the following
forms (in addition to any other legend which may be required by other agreements
between the parties hereto):
(a)
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.”
(b)
Any legend required by appropriate blue sky officials.
6.
Investment
Representations.
In connection with the purchase of the Securities, Purchaser represents to
the
Company the following:
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(a)
Purchaser has been furnished with all materials relating to the Company’s
business affairs and financial condition and materials related to the offer
and
sale of the Securities that have been requested by Purchaser and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Securities. Purchaser has been afforded the opportunity
to ask questions of the executive officer and director of the Company. Purchaser
understands that its investment in the Securities involves a high degree of
risk. Purchaser has sought such accounting, legal and tax advice as Purchaser
has considered necessary to make an informed investment decision with respect
to
Purchaser’s acquisition of the Securities. 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. 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
investment in the Securities. Purchaser can afford a complete loss of its
investment in the Securities. Purchaser is purchasing the Securities for
investment for Purchaser’s own account only and not with a view to, or for
resale in connection with, any “distribution” thereof within the meaning of the
Securities Act of 1933, as amended (the “Act”). Purchaser understands that the
Company is a blank check development stage company recently formed for the
purpose of consummating an initial business combination (a “Business
Combination”) and understands that there is no assurance as to the future
performance of the Company and that the Company may never effectuate a Business
Combination.
(b)
Purchaser understands that the Securities (and the securities underlying the
Units) have
not been registered under the Act or any state securities law by reason of
a
specific exemption therefrom, and that the Company is relying on the truth
and
accuracy of, and Purchaser’s compliance with, the representations and warranties
and agreements of Purchaser set forth herein to determine the availability
of
such exemptions and the eligibility of Purchaser to acquire such Securities,
including, but not limited to, the bona fide nature of Purchaser’s investment
intent as expressed herein.
(c)
Purchaser further acknowledges and understands that the Securities (and the
securities underlying the Units) must be held indefinitely unless the Securities
(and the securities underlying the Units) are subsequently registered under
the
Act or an exemption from such registration is available. Purchaser understands
that the certificates evidencing the Securities (and the securities underlying
the Units) will be imprinted with a legend which prohibits the transfer of
the
Securities (and the securities underlying the Units) unless the Securities
(and
the securities underlying the Units) are registered or such registration is
not
required in the opinion of counsel for the Company.
(d)
Purchaser is familiar with the provisions of Rule 144 under the Act, as in
effect from time to time (“Rule 144”), which, in substance, permit limited
public resale of “restricted securities”
acquired, directly or indirectly, from the issuer thereof (or from an affiliate
of such issuer), in a non-public offering subject to the satisfaction of certain
conditions. Unless the Company registers the Securities (and the securities
underlying the Units) under the Act, the Securities (and the securities
underlying the Units) may be resold by Purchaser only in certain limited
circumstances subject to the provisions of Rule 144, which requires, among
other
things: (i) the availability of certain public information about the Company
and
(ii) the resale occurring following the required holding period under Rule
144
after Purchaser has purchased, and made full payment of (within the meaning
of
Rule 144), the securities to be sold.
(e)
Purchaser further understands that at the time Purchaser wishes to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that,
in
such event, Purchaser would be precluded from selling the Securities (and the
securities underlying the Units) under Rule 144 even if the minimum holding
period requirement had been satisfied. Notwithstanding Sections 6(d) and (e)
hereof, Purchaser understands that he may be considered a promoter of the
Company and understands that it is the position of the Securities and Exchange
Commission (the “SEC”) that promoters or affiliates of a blank check company and
their transferees, both before and after a Business Combination, would act
as an
“underwriter” under the Act when reselling the securities of a blank check
company. Accordingly, the SEC believes that those securities can be resold
only
through a registered offering and that Rule 144 would not be available for
those
resale transactions despite technical compliance with the requirements of Rule
144.
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(f)
Purchaser represents that Purchaser is an “accredited investor” as that term is
defined in Rule 501 of Regulation D promulgated by the SEC under the Act.
(g)
Purchaser has all necessary limited liability company power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. All limited liability company action necessary to be taken by Purchaser
to authorize the execution, delivery and performance of this Agreement and
all
other agreements and instruments delivered by Purchaser in connection with
the
transactions contemplated hereby has been duly and validly taken, and this
Agreement has been duly executed and delivered by Purchaser. Subject to the
terms and conditions of this Agreement, this Agreement constitutes the valid,
binding and enforceable obligation of Purchaser, enforceable in accordance
with
its terms, except as enforceability may be limited by (i) 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); and (ii) the
applicability of the federal and state securities laws and public policy as
to
the enforceability of the indemnification provisions of this Agreement. The
purchase by Purchaser of the Securities does not conflict with the
organizational documents of Purchaser or with any material contract by which
Purchaser or its property is bound, or any laws or regulations or decree, ruling
or judgment of any court applicable to Purchaser or its property. The principal
place of business of Purchaser are as set forth on the signature page
hereto.
(h)
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) of the
Securities Act.
(i)
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, nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
7.
Company
Representations and Warranties.
The Company hereby represents and warrants to Purchaser that the Company has
all
necessary corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. All corporate action necessary
to be taken by the Company to authorize the execution, delivery and performance
of this Agreement and all other agreements and instruments delivered by the
Company in connection with the transactions contemplated hereby has been duly
and validly taken and this Agreement has been duly executed and delivered by
the
Company. Subject to the terms and conditions of this Agreement, this Agreement
constitutes the valid, binding and enforceable obligation of the Company,
enforceable in accordance with its terms, except as enforceability may be
limited by (i) 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); and (ii) the applicability
of
the federal and state securities laws and public policy as to the enforceability
of the indemnification provisions of this Agreement. The sale by the Company
of
the Securities does not conflict with the certificate of incorporation or
by-laws of the Company or any material contract by which the Company or its
property is bound, or any federal or state laws or regulations or decree, ruling
or judgment of any United States or state court applicable to the Company or
its
property.
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8.
Indemnification.
Purchaser hereby agrees to indemnify and hold harmless the Company and the
Company’s officers, directors, stockholders, employees, agents, and attorneys
against any and all losses, claims, demands, liabilities and expenses (including
reasonable legal or other expenses incurred by each such person in connection
with defending or investigating any such claims or liabilities, whether or
not
resulting in any liability to such person or whether incurred by the indemnified
party in any action or proceeding between the indemnitor and indemnified party
or between the indemnified party and any third party) to which any such
indemnified party may become subject, insofar as such losses, claims, demands,
liabilities and expenses (a) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact made by Purchaser and contained
herein, or (b) arise out of or are based upon any breach by Purchaser of any
representation, warranty or agreement made by Purchaser contained
herein.
9.
Miscellaneous.
(a)
Notices.
All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (i) upon personal delivery to the party to be
notified, (ii) when sent by confirmed facsimile if sent during normal business
hours of the recipient, and if not during normal business hours of the
recipient, then on the next business day, (iii) five calendar days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (iv) one business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt. All communications shall be sent to the other party hereto at such
party’s address hereinafter set forth on the signature page hereof, or at such
other address as such party may designate by ten days advance written notice
to
the other party hereto.
(b)
Successors
and Assigns.
This Agreement shall inure to the benefit of the successors and assigns of
the
Company and, subject to the restrictions on transfer herein set forth, shall
be
binding upon Purchaser and Purchaser’s successors and assigns.
(c)
Attorneys’
Fees; Specific Performance.
Purchaser shall reimburse the Company for all costs incurred by the Company
in
enforcing the performance of, or protecting its rights under, any part of this
Agreement, including reasonable costs of investigation and attorneys’
fees.
(d)
Governing
Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of Delaware without regard to the principles of conflicts of law
thereof. The parties agree that any action brought by either party to interpret
or enforce any provision of this Agreement shall be brought in, and each party
agrees to, and does hereby, submit to the jurisdiction and venue of, the
appropriate state or federal court for the district encompassing the Company’s
principal place of business.
(e)
Further
Execution.
The parties agree to take all such further action(s) as may reasonably be
necessary to carry out and consummate this Agreement as soon as practicable,
and
to take whatever steps may be necessary to obtain any governmental approval
in
connection with or otherwise qualify the issuance of the securities that are
the
subject of this Agreement.
(f)
Independent
Counsel.
Purchaser acknowledges that this Agreement has been prepared on behalf of the
Company by Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company
and that Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP does not represent, and is
not acting on behalf of, Purchaser. Purchaser has been provided with an
opportunity to consult with Purchaser’s own counsel with respect to this
Agreement.
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(g)
Entire
Agreement; Amendment. This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes and merges all prior agreements or
understandings, whether written or oral. This Agreement may not be amended,
modified or revoked, in whole or in part, except by an agreement in writing
signed by each of the parties hereto.
(h)
Severability.
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall
be
enforceable in accordance with its terms.
(i)
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one instrument.
This Agreement or any counterpart may be executed via facsimile or electronic
mail transmission, and any such executed facsimile or electronic mail copy
shall
be treated as an original.
(j)
Survival.
The representations and warranties contained herein will survive the delivery
of, and the payment for, the Securities.
(k)
Waiver
of Jury Trial.
Each party hereto hereby irrevocably and unconditionally waives the right to
a
trial by jury in any action, suit, counterclaim or other proceeding (whether
based on contract, tort or otherwise) arising out of, connected with or relating
to this Agreement, the transactions contemplated hereby, or the actions of
Purchaser in the negotiation, administration, performance or enforcement
hereof.
5
IN
WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year first
above written.
| COMPANY: | ||
| XXXXXXXXXXX ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer and Chief
Financial Officer
|
||
| Address: | ||
| PURCHASER: | ||
| GRST ACQUISITION, LLC | ||
| |
|
|
| By: |
Xxxxxxxxxxx
Capital, L.P.,
its
sole member
|
|
| By: |
Xxxxxxxxxxx Management, Inc.,
its general partner
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxx
Title:
President and Chief Financial Officer
|
||
| Address: | ||
