UNIT CANCELLATION AGREEMENT AND AMENDMENT TO FOUNDER’S SECURITIES PURCHASE AGREEMENT
Exhibit
10.11
THIS
UNIT
CANCELLATION AGREEMENT AND AMENDMENT TO FOUNDER’S SECURITIES PURCHASE AGREEMENT
(this “Agreement”), dated as of January 10, 2008, is entered
into by and between GHL Acquisition Corp., a Delaware corporation (the
“Corporation”), and Xxxxxxxxx & Co., Inc., a Delaware
corporation (the “Founding Stockholder”).
WITNESSETH
WHEREAS,
the Corporation has filed a registration statement for its initial public
offering of units (the “IPO”), each unit (a
“Unit”) consisting of one Share of the Corporation’s common
stock, par value $0.001 per share (a “Share”) and one warrant
to purchase one Share;
WHEREAS,
the Founding Stockholder purchased an aggregate of 11,500,000 Units (the
“Founder’s Units”) pursuant to a Founder’s Securities Purchase
Agreement (the “Purchase Agreement”), dated as of November 12,
2007, between the Corporation and the Founding Stockholder, of which Founder’s
Units 1,500,000 Founder’s Units are subject to forfeiture under certain
circumstances pursuant to the terms of the Purchase Agreement;
WHEREAS,
the Corporation wishes to amend the terms of the IPO such that the Shares
included in the Units being sold to the public represent approximately 82.5%
of
the Corporation’s outstanding share capital following consummation of the
IPO;
WHEREAS,
the Founding Stockholder believes it is in the best interests of it, the
Corporation and the Corporation’s shareholders to proceed with the IPO on the
amended terms, and wishes to facilitate this by surrendering 1,725,000 Founder’s
Units (the “Subject Units”) to the Corporation for cancellation
on the terms and conditions set forth herein;
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. Surrender
and Cancellation
The
Founding Stockholder hereby surrenders to the Corporation, and the Corporation
hereby accepts from the Founding Stockholder, free and clear of all liens and
encumbrances, the Subject Units. The Corporation shall duly cancel
and retire the Subject Units as promptly as practicable. Of the
9,775,000 Founder’s Units remaining after giving effect to the surrender and
cancellation of the Subject Units, 1,275,000 Founder’s Units, subject to
adjustment, are subject to forfeiture pursuant to the terms of the Purchase
Agreement (as amended by this Agreement).
Section
2. Representations
and Warranties of the Founding Stockholder. The Founding
Stockholder hereby represents and warrants that:
(A) Organization
and Corporate Power. The Founding Stockholder is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Founding Stockholder possesses all requisite corporate
power and authority necessary to carry out the transactions contemplated by
this
Agreement.
(B) Authorization;
No Breach.
(i) The
execution, delivery and performance of this Agreement have been duly authorized
by the Founding Stockholder. This Agreement constitutes a valid and binding
obligation of the Founding Stockholder, enforceable in accordance with its
terms.
(ii) The
execution and delivery by the Founding Stockholder of this Agreement, the
surrender of the Subject Units and the fulfillment of and compliance with the
respective terms hereof by the Founding Stockholder, do not and will not as
of
the date hereof (i) conflict with or result in a breach of the terms, conditions
or provisions of, (ii) constitute a default under, (iii) result in a violation
of, or (iv) 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 or by-laws of the Founding Stockholder, or any material law,
statute, rule or regulation to which the Founding Stockholder is subject, or
any
agreement, order, judgment or decree to which the Founding Stockholder is
subject, except for any filings required after the date hereof under federal
or
state securities laws.
(C) Title
to Units. The Founding Stockholder is the sole record owner of
the Subject Units and has the power and right to surrender, assign, transfer
and
deliver to the Corporation good and valid title to, all of the Subject Units,
free and clear of all liens.
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Section
3. Representations,
Warranties and Covenants of the Corporation. As a material
inducement to the Founding Stockholder to enter into this Agreement and
surrender the Subject Units to the Corporation, the Corporation hereby
represents, warrants and covenants to the Founding Stockholder
that:
(A) Organization
and Corporate Power. The Corporation is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
Delaware. The Corporation possesses all requisite corporate power and authority
necessary to carry out the transactions contemplated by this
Agreement.
(B) Authorization;
No Breach.
(i) This
Agreement constitutes a valid and binding obligation of the Corporation,
enforceable in accordance with its terms.
(ii) The
execution and delivery by the Corporation of this Agreement and the fulfillment
of and compliance with the respective terms hereof by the Corporation do not
and
shall not as of the date hereof conflict with or result in a breach of the
terms, conditions or provisions of any agreement, instrument, order, judgment
or
decree to which the Corporation is subject.
Section
4. Amendment
of Purchase Agreement. The Founding Stockholder and the
Corporation hereby acknowledge and agree that clauses (a) and (b) of Section
1.C.vii. of the Purchase Agreement are amended and restated by deleting such
clauses in their entirety and replacing them with the following
text:
(A) “(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
approximately 17.5% 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), and agree that the exact number of Founder’s Units forfeited to effect
any such adjustment shall be determined by the Company in its sole
discretion. The Company will not make any cash payment to the
Purchaser or any Permitted Transferees in respect of any such
adjustment.”
(B) “(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
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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 approximately 17.5%
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), and agree that the exact number of Founder’s Units forfeited to effect
any such adjustment shall be determined by the Company in its sole discretion;
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.”
Section
5. Survival
of Representations and Warranties. All of the representations
and warranties contained herein shall survive the date of this
Agreement.
Section
6. Miscellaneous.
(A) 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.
(B) 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.
(C) Counterparts. This
Agreement may be executed in counterparts, all of which taken together shall
constitute one and the same Agreement.
(D) 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.
(E) 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. The parties agree that, all
actions and proceedings arising out of this Agreement or any of the
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transactions
contemplated hereby, shall be brought in the United States District Court for
the Southern District of New York or in a New York State Court in the County
of
New York and that, in connection with any such action or proceeding, agree
to
submit to the jurisdiction of, and venue in, such court. 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.
(F) 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 Corporation:
|
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000)
000-0000
|
|
|
With
a copy to:
|
Xxxxxx
X. Xxxxxxxxxxx
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Fax
No.: 000-000-0000
|
|
|
If
to the Founding Stockholder:
|
Xxxxxxxxx
& Co., Inc.
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000)
000-0000
|
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.
(G) 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 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.
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IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement and Amendment on
the date first written above.
| /s/ Xxxxx X. Xxx | |||
|
By:
|
Xxxxx
X. Xxx
Chairman
and Chief Executive Officer
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||
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XXXXXXXXX
& CO., INC.
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|||
| /s/ Xxxxx X. Xxx | |||
|
By:
|
Xxxxx
X. Xxx
Co-Chief
Executive Officer
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