SUBSCRIPTION AGREEMENT
December
2, 2010
To the
Board of Directors of
Gentlemen:
The
undersigned hereby subscribes for and agrees to purchase 6,166,667 warrants (the
“Insider Warrants”) at $0.75 per Insider Warrant, of RLJ Acquisition, Inc., a
Nevada corporation (the “Company”), for an aggregate purchase price of
$4,625,000 (the “Purchase Price”). Each Warrant is exercisable for
one share of the Company’s common stock, par value $0.0001 per share, (“Common
Stock”), at an exercise price of $12.00 per share. The purchase and
issuance of the Insider Warrants shall occur simultaneously with the
consummation of the Company’s initial public offering of securities (“IPO”)
which is being underwritten by Lazard Capital Markets LLC (the
“Underwriter”). The Insider Warrants will be sold to the undersigned
on a private placement basis and not as part of the IPO.
At least
24 hours prior to the effective date of the registration statement filed by the
Company in connection with the IPO (the “Registration Statement”), the
undersigned shall deliver the Purchase Price to a mutually agreed upon bank or
other financial institution (the “Escrow Agent”) to hold in an account until the
Company consummates the IPO. Simultaneously with the consummation of
the IPO, the Escrow Agent shall deposit the Purchase Price, without interest or
deduction, into the trust fund established by the Company for the benefit of the
Company’s public stockholders as described in the Registration Statement,
pursuant to the terms of an escrow agreement to be entered into between the
Company and the Escrow Agent. Simultaneously with the consummation of
the IPO, the Company shall issue to the undersigned a warrant certificate or
certificates (or, if not certificated, provide documentation reflecting the
registration in the name of the undersigned on the warrant ledgers of the
Company) representing such fully paid and non-assessable Insider
Warrants. In the event that the IPO is not consummated within 14 days
of the date the Purchase Price is delivered to the Escrow Agent, the Escrow
Agent shall return the Purchase Price to the undersigned, without interest or
deduction.
The
undersigned represents and warrants that it has been advised that the Insider
Warrants have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”); that it is acquiring the Insider Warrants for its
account for investment purposes only; that it has no present intention of
selling or otherwise disposing of the Insider Warrants in violation of the
securities laws of the United States; that it is an “accredited investor” as
defined by Rule 501 of Regulation D promulgated under the Securities Act; and
that it is familiar with the proposed business, management, financial condition,
and affairs of the Company.
The
undersigned agrees that it shall not sell or transfer the Insider Warrants (or
the shares of Common Stock issuable upon exercise of the Insider Warrants) until
30 days after the date on which the Company consummates a merger, capital stock
exchange, asset acquisition, or other similar business combination with an
operating business (as more fully described in the Registration Statement) (a
“Business Combination”) and acknowledges that the certificates for such Insider
Warrants shall contain a legend indicating such restriction on transferability
(in addition to any other legend which may be required by other agreements
between the parties hereto). Such legend will be in substantially the
following form:
“THE
SECURITIES REPRESENTED BY THIS WARRANT CERTIFICATE (INCLUDING THE SECURITIES
ISSUABLE UPON EXERCISE OF THE WARRANT) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT
AND LAWS.”
“THE
SECURITIES REPRESENTED BY THIS WARRANT CERTIFICATE (INCLUDING THE SECURITIES
ISSUABLE UPON EXERCISE OF THE WARRANT) ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AND THE TERMS AND CONDITIONS SET FORTH IN THE WARRANT AGREEMENT DATED
AS OF _________, 2011, BY AND BETWEEN THE COMPANY AND THE WARRANT AGENT (THE
“WARRANT AGREEMENT”). COPIES OF SUCH AGREEMENT MAY BE OBTAINED BY THE
HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE.”
In
connection with the Insider Warrants purchased pursuant to this Agreement, the
undersigned hereby waives 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 or of the Company’s trust account upon the Company’s
failure to timely complete a Business Combination. For purposes of
clarity, in the event the undersigned purchases shares of Common Stock in the
IPO or in the aftermarket, any additional shares so purchased shall be eligible
to receive any liquidating distributions by the Company.
The
undersigned understands and acknowledges that an exemption from the registration
requirements of the Securities Act requires that there be no general
solicitation of purchasers of the Insider Warrants. In this regard,
if the offering of the units in the Company’s IPO were deemed to be a general
solicitation with respect to the Insider Warrants, the offer and sale of such
Insider Warrants may not be exempt from registration and, if not, the
undersigned may have a right to rescind its purchase of the Insider
Warrants. In order to facilitate the completion of the IPO and in
order to protect the Company, its stockholders, and the trust account from
claims that may adversely affect the Company or the interests of its
stockholders, the undersigned hereby agrees to waive, to the maximum extent
permitted by applicable law, any claims, right to xxx, or rights in law or
arbitration, as the case may be, to seek rescission of its purchase of the
Insider Warrants. The undersigned acknowledges and agrees that this
waiver is being made in order to induce the Company to sell the Insider Warrants
to the undersigned. The undersigned agrees that the foregoing waiver
of rescission rights shall apply to any and all known or unknown actions, causes
of action, suits, claims, or proceedings (collectively, “Claims”) and related
losses, costs, penalties, fees, liabilities, and damages, whether compensatory,
consequential, or exemplary, and expenses in connection therewith, including
attorneys’ and expert witness fees and disbursements and all other expenses
incurred in investigating, preparing, or defending against any Claims, whether
pending or threatened, in connection with any present or future actual or
asserted right to rescind the purchase of the Insider Warrants hereunder or
relating to the purchase of the Insider Warrants and the transactions
contemplated hereby.
2
The
undersigned acknowledges that the Insider Warrants shall be identical to the
warrants included in the units offered in the IPO, except that the Insider
Warrants: (i) are not being registered in the Registration Statement and
therefore may not be transferred absent an effective registration statement
under the Securities Act or a valid exemption from the registration requirements
of the Securities Act, (ii) may not be sold or transferred until 30 days after
the date on which the Company consummates a Business Combination, (iii) are not
redeemable so long as they are held by the initial holder thereof (or any of its
permitted transferees) and (iv) may be exercised on a cashless basis as
described in the immediately following paragraph so long as they are held by the
initial holder thereof (or any of its permitted transferees). The
shares of Common Stock to be issued upon exercise of the Insider Warrants (the
“Warrant Shares”) will be granted certain registration rights as described in
the Registration Statement.
The
Company hereby acknowledges and agrees that so long as the Insider Warrants are
held by the undersigned or its permitted transferees, (i) the Insider Warrants
will not be redeemable by the Company and (ii) the Insider Warrants may be
exercised on a cashless basis by surrendering such Insider Warrants for that
number of shares of Common Stock equal to the quotient obtained by dividing (x)
the product of the number of shares of Common Stock underlying the Insider
Warrants, multiplied by the difference between the exercise price of the Insider
Warrants and the “Fair Market Value” (as defined below) by (y) the Fair Market
Value. The “Fair Market Value” shall mean the average reported last
sale price of the Company’s Common Stock for the five trading days ending on the
trading day prior to the date on which the Insider Warrants are
exercised.
The terms
of this agreement and the restrictions on transfers with respect to the Insider
Warrants may not be amended without the prior written consent of the
Underwriter.
[SIGNATURE
PAGE FOLLOWS]
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Very
truly yours,
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RLJ
SPAC ACQUISITION, LLC
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By
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/s/ X. Xxx Xxxxxxxx
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Name:
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X.
Xxx Xxxxxxxx
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Title:
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CEO
& President
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Agreed
to:
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By:
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/s/ X. Xxx Xxxxxxxx
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Name:
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X.
Xxx Xxxxxxxx
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Title:
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CEO
& President
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