PRIVATE PLACEMENT WARRANT PURCHASE AGREEMENT
Exhibit 10.13
This PRIVATE PLACEMENT PURCHASE AGREEMENT, dated as of
March 11, 2008 (this “Agreement”), is
entered into by and among X.X. Childs Acquisition I Corp., a
Delaware corporation (the “Company”), and the
individuals set forth on the signature pages hereto under
“Purchasers” (the “Purchasers”).
WHEREAS, the Company is proposing to file a registration
statement (the “Registration Statement”) on
Form S-1
under the Securities Act of 1933, as amended (the
“Securities Act”) with the Securities and
Exchange Commission in connection with a proposed initial public
offering (the “Initial Public Offering”) of
20,000,000 units (“Units”), each
consisting of one share of common stock of the Company, par
value $0.0001 per share (“Common Stock”), and
one warrant to purchase one share of Common Stock at an exercise
price of $7.00 (a “Warrant”), subject to the
terms and conditions set forth in the Registration
Statement; and
WHEREAS, the Company desires to issue and sell, and the
Purchasers desire to purchase an aggregate of 5,000,000 Warrants
in a private placement to occur immediately prior to the
consummation of the Initial Public Offering.
NOW, THEREFORE, for and in consideration of the promises and
mutual covenants set forth herein, the parties hereto agree as
follows:
1. Purchase and Sale of the Private Placement
Warrants. Subject to and immediately prior to the
consummation of the Initial Public Offering, the Company shall
issue and sell to the Purchasers, and the Purchasers shall
purchase from the Company, an aggregate of 5,000,000 Warrants
(the “Private Placement Warrants”) at a
purchase price of $1.00 per Private Placement Warrant for an
aggregate purchase price of $5,000,000 in the amounts set forth
opposite each Purchaser’s name on Exhibit A annexed
hereto. The obligations of the Purchasers hereunder shall be
several and not joint. The terms of the Private Placement
Warrants shall be set forth in a Warrant Agreement, which shall
be substantially in the form attached hereto as Exhibit B
(the “Warrant Agreement”).
2. Closing of Purchase and Sale. The
closing of the purchase and sale of the Private Placement
Warrants hereunder, including payment for and delivery of the
Private Placement Warrants, shall take place at the offices of
the Company or the Company’s legal counsel immediately
prior to, and shall be subject to, the consummation of the
Initial Public Offering. At the closing, the Company shall
deliver to each Purchaser a certificate evidencing the Private
Placement Warrants to be purchased by such Purchaser as set
forth on Exhibit A, substantially in the form attached as
an exhibit to the Warrant Agreement, registered in each such
Purchaser’s name, upon the payment of the aggregate
purchase price therefor set forth opposite the name of such
Purchaser on Exhibit A in immediately available funds by
delivery of a cashiers check or by wire transfer to an account
designated by the Company.
3. Registration Rights. At the time of
the closing of the Initial Public Offering, the Company and the
Purchasers shall enter into a registration rights agreement in a
form acceptable to each Purchaser and the Company pursuant to
which the Company will grant certain registration rights to the
Purchasers relating to the Private Placement Warrants and the
Common Stock issuable upon exercise of the Private Placement
Warrants. If the Company does not consummate a business
combination, as defined in the Registration Statement, there
will be no settlement of the Private Placement Warrants and the
Private Placement Warrants will expire worthless.
4. Company Representations and
Warranties. In connection with the issuance and
sale of the Private Placement Warrants, the Company hereby
represents and warrants to the Purchasers the following:
(a) Organization and Corporate Power. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and the
Company has all necessary corporate power and authority to enter
into this Agreement and to consummate the transactions
contemplated hereby.
(b) Authorization; No Breach. 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. 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 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 issuance and
sale by the Company of the Private Placement Warrants 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.
(c) Title to Securities. Upon issuance in
accordance with, and payment pursuant to, the terms hereof and
the Warrant Agreement, the Common Stock issuable upon exercise
of the Private Placement Warrants 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, the Purchasers will have good title to
the Private Placement Warrants set forth opposite each
Purchaser’s name on Exhibit A and the Common
Stock issuable upon exercise of such Private Placement Warrants,
free and clear of all liens, claims and encumbrances of any
kind, other than transfer restrictions hereunder and under the
other agreements contemplated hereby.
5. Purchasers’ Representations and
Warranties. In connection with the purchase of
the Private Placement Warrants, each Purchaser hereby severally
and not jointly represents and warrants to the Company the
following:
(a) Investment Representations.
(i) Such Purchaser is familiar with the Company’s
business plans and financial condition and has acquired
sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Private Placement
Warrants. Such Purchaser has been afforded the opportunity to
ask questions of the executive officers and directors of the
Company. Such Purchaser understands that its investment in the
Private Placement Warrants involves a high degree of risk. Such
Purchaser has sought such accounting, legal and tax advice as
such Purchaser has considered necessary to make an informed
investment decision with respect to such Purchaser’s
acquisition of the Private Placement Warrants. Such 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 Private Placement Warrants, and is able to
bear the economic risk of an investment in the Private Placement
Warrants in the amount contemplated hereunder. Such Purchaser
understands that there presently is no public
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market for the Private Placement Warrants and none is
anticipated to develop in the foreseeable future. Such Purchaser
can afford a complete loss of its investment in the Private
Placement Warrants. Such Purchaser is purchasing the Private
Placement Warrants for investment for such 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 and such Purchaser has no present
arrangements to sell the Private Placement Warrants to or
through any personal entity.
(ii) Such Purchaser understands that the Private Placement
Warrants have not been registered under the Securities 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 such Purchaser’s compliance with, the
representations and warranties and agreements of such Purchaser
set forth herein to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire such
Private Placement Warrants, including, but not limited to, the
bona fide nature of such Purchaser’s investment intent as
expressed herein.
Such Purchaser further acknowledges and understands that the
Private Placement Warrants must be held indefinitely unless the
Private Placement Warrants are subsequently registered under the
Securities Act or an exemption from such registration is
available. Such Purchaser understands that the certificates
evidencing the Private Placement Warrants will be imprinted with
a legend that prohibits the transfer of the Private Placement
Warrants unless the Private Placement Warrants are registered or
such registration is not required in the opinion of counsel for
the Company in substantially the following form:
“THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.”
(iii) Such Purchaser represents that such Purchaser is an
“accredited investor” as that term is defined in
Rule 501 of Regulation D promulgated under the
Securities Act.
(iv) Such 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.
(v) Such 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 Warrants or the fairness or suitability
of the investment in the Private Placement Warrants, nor have
such authorities passed upon or endorsed the merits of the
offering of the Private Placement Warrants.
(b) Validity. This Agreement constitutes
the valid, binding and enforceable obligation of such 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
such Purchaser of the Private Placement Warrants does not
conflict with any material contract by which such Purchaser or
his, her or its property is bound, or any laws or regulations or
decree, ruling or judgment of any court applicable to such
Purchaser or his, her or its property.
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6. Survival of Representations and
Warranties. All of the representations and
warranties contained herein shall survive the closing date of
the purchase and sale of the Private Placement Warrants.
7. Transfer and
Redemption Restrictions.
(a) Transfer Restrictions. Each Purchaser
hereby acknowledges and agrees to be bound by the transfer
restrictions set forth in the Warrant Agreement.
(b) Redemption. Each of the Company and
each Purchaser hereby acknowledges and agrees that,
notwithstanding a call for redemption of the Private Placement
Warrants by the Company in accordance with the terms of the
Warrant Agreement, no Private Placement Warrants held by the
Purchaser or any of their Permitted Transferees (as defined in
the Warrant Agreement) at the time of such call for redemption
shall be redeemable by the Company.
8. Miscellaneous.
(a) Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of the
State of New York without regard to the principles of conflicts
of law thereof.
(b) Further Execution. The parties agree
to take all such further action 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 Private Placement Warrants that are
the subject of this Agreement.
(c) Amendments. 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.
(d) Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original
and all such counterparts shall together constitute but one and
the same instrument.
(e) Effect of Headings. The Section
headings herein are for convenience only and are not part of
this Agreement and shall not affect the interpretation hereof.
(f) Severability. This Agreement shall be
deemed severable, and the invalidity or unenforceability of any
term or provision hereof shall not affect the validity or
enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that
there shall be added as a part of this Agreement a provision as
similar in terms to such invalid or unenforceable provision as
may be possible and be valid and enforceable.
(g) Waiver of Claims;
Indemnification. Each Purchaser hereby waives any
and all right, title, interest or claim of any kind, including
any right of recession, with respect
to the Company’s obligations hereunder (“Claim”)
in or to any liquidating distribution from the trust account, as
described in the Registration Statement, and hereby waives any Claim such Purchaser may have in
the future as a result of, or arising out of, this Agreement, or
otherwise relating to such Purchaser’s purchase of the
Private Placement Warrants, against the Company or Deutsche Bank
Securities, Inc. (“Deustche Bank”) and agrees not to seek recourse, reimbursement,
payment or satisfaction for any such Claim, against such trust
account for any reason whatsoever. Each Purchaser agrees to
indemnify and hold the Company and Deustche Bank harmless from all losses, damages
or expenses that relate to claims or proceedings brought against
the Company or Deustche Bank by such Purchaser in respect of the transactions
contemplated hereby.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
COMPANY:
X.X. CHILDS ACQUISITION I CORP.
| By: |
/s/
|
Name: Xxxx X. Xxxxxx
| Title: | President and Chief Executive Officer |
PURCHASERS:
/s/
Xxxx X. Childs
/s/
Xxxxxxx X. Xxxxx
/s/
Xxxx X. Xxxxxx
/s/
Xxxxx X Xxxxxxxxxx
/s/
Xxxxxxx X. Xxxx
/s/
Xxxxxx X. Xxxxx
XXXXXX CAPITAL PARTNERS, LLC
/s/
Name:
| Title: |
