GREENSTREET ACQUISITION CORP. SPONSOR WARRANTS SUBSCRIPTION AGREEMENT
XXXXXXXXXXX
ACQUISITION CORP.
THIS
SPONSOR WARRANTS SUBSCRIPTION AGREEMENT
(this
“Agreement”) is made as of the 14th day of January, 2008, by and between
Xxxxxxxxxxx Acquisition Corp., a Delaware corporation (the “Company”), and Duke
X. Xxxxxxx Ph. D. (“Purchaser”).
WHEREAS,
the
Company desires to commit to issue and sell, and Purchaser desires to commit
to
purchase and acquire, Warrants (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.
Commitment
To Purchase Warrants.
Subject
to and immediately prior to the consummation of the Company’s initial public
offering (the “IPO”), Purchaser hereby agrees to subscribe for and purchase from
the Company, and the Company hereby agrees to issue and sell to
Purchaser, 15,000 warrants (each a “Warrant”) at a purchase price of $1.00
per Warrant for an aggregate purchase price of $15,000. Each Warrant shall
entitle the holder thereof to purchase one share of the common stock of the
Company, par value $0.001 per share (the “Common Stock”) at an exercise price of
$6.00, in accordance with the terms of the Warrant as set forth in the Warrant
Agreement (the “Warrant Agreement”) dated as of December 14, 2007 by and between
the Company and American Stock Transfer & Trust Company, as warrant agent.
The closing of the purchase and sale of the Warrants hereunder, including
payment for and delivery of the Warrants, shall occur at the offices of the
Company immediately prior to, and subject to consummation of, the
IPO.
2.
Payment
of Purchase Price.
The
purchase price for the Warrants (also referred to herein as the “Securities”)
shall be tendered in full at the closing by one or a combination of the
following means:
(a)
wiring of immediately available United States funds to an account for the
benefit of the Company, pursuant to wire instructions provided by the Company
in
advance; or
(b)
by
delivery of a cashiers check to the Company of immediately available United
States funds.
3.
Acceptance
or Rejection of Agreement.
The
Company has the right to reject this Agreement and any subscription for the
Securities represented hereby in whole or in part, for any reason and at any
time prior to a closing, notwithstanding receipt by Purchaser or prior notice
of
acceptance of such subscription. The Securities subscribed for herein will
not
be deemed issued to or owned by Purchaser until a copy of this Agreement has
been executed by the Company and Purchaser and a closing with respect to such
Securities has occurred. In the event that a closing does not take place for
any
reason with respect to some or all of the Securities, all cash proceeds
delivered by Purchaser in accordance herewith with respect to such Securities
shall be returned to Purchaser as soon as practicable, without interest, offset
or deduction.
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4.
Limitations
on Transfer.
Purchaser shall not assign, hypothecate, donate, encumber or otherwise dispose
of any interest in the Warrants (and any shares of Common Stock issuable in
respect thereof) during the “Escrow Period” for the “Sponsor Warrants” (as such
terms are defined in a securities escrow agreement substantially in the form
attached hereto as Exhibit A (the “Securities Escrow Agreement”), dated on or
about the effective date of the IPO to be entered into by and between the
Company and an escrow agent to be determined by the Company), except (i) as
otherwise permitted by the Securities Escrow Agreement, (ii) in compliance
with
applicable securities laws and (iii) in compliance with the Warrant
Agreement.
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)
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE ASSIGNED, HYPOTHECATED,
DONATED, ENCUMBERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THAT CERTAIN SECURITIES ESCROW AGREEMENT DATED ____________,
2008, AND THAT CERTAIN WARRANT AGREEMENT DATED AS OF DECEMBER 14, 2007, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES OF THE
COMPANY.”
(c)
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:
(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.
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(b)
Purchaser understands that the Securities (and the underlying securities
thereof) 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
underlying securities thereof) must be held indefinitely unless the Securities
(and the underlying securities thereof) are subsequently registered under the
Act or an exemption from such registration is available. Purchaser understands
that the certificates evidencing the Securities (and the underlying securities
thereof) will be imprinted with a legend which prohibits the transfer of the
Securities (and the underlying securities thereof) unless the Securities (and
the underlying securities thereof) 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 underlying
securities thereof) under the Act, the Securities (and the underlying securities
thereof) 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
underlying securities thereof) 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.
(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 power and authority to enter into this Agreement
and
to consummate the transactions contemplated hereby. 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 any material contract by which
Purchaser or his property is bound, or any laws or regulations or decree, ruling
or judgment of any court applicable to Purchaser or his property. The principal
place of business of Purchaser is as set forth on the signature page
hereto.
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(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.
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.
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(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.
(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.
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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
Financial Officer
Address:
PURCHASER:
/s/
Duke X.
Xxxxxxx
Duke
X.
Xxxxxxx, Ph. D.
Address:
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