SECURITIES PURCHASE AGREEMENT
Exhibit 10.6
This
Securities Purchase Agreement (this “Agreement”), effective as of February 2,
2011, is made and entered into by and between Global Eagle Acquisition Corp., a
Delaware corporation (the “Company”), and Global Eagle Acquisition LLC, a
Delaware limited liability company (“Buyer”).
RECITALS:
WHEREAS, Buyer wishes to
purchase from the Company 4,114,704 shares of the Company’s Common Stock (as
defined below) (the “Shares”); and
WHEREAS, the Buyer wishes to
purchase the Shares from the Company and the Company wishes to sell the Shares
to the Buyer on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of
the premises, representations, warranties and the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I.
DEFINITIONS
The terms
defined in this Article I shall
have for all purposes of this Agreement the respective meanings set forth
below:
“Agreement”
shall have the meaning set forth in the preamble to this Agreement.
“Buyer”
shall have the meaning set forth in the preamble to this Agreement.
“Closing”
shall have the meaning set forth in Section 2.3 of
this Agreement.
“Closing
Date” shall have the meaning set forth in Section 2.3 of
this Agreement.
“Common
Stock” shall mean the Common Stock, $0.0001 par value per share, of the
Company.
“Company”
shall have the meaning set forth in the preamble to this Agreement.
“Consent”
means any consent, approval, notification, waiver, or other similar action that
is necessary or convenient.
“Governmental
Body” shall mean any legislature, agency, bureau, branch, department, division,
commission, court, tribunal or other similar recognized organization or body of
any federal, state, county, municipal, local or foreign government or other
similar recognized organization or body exercising similar powers or
authority.
“Law”
shall mean any law (statutory, common or otherwise), constitution, ordinance,
rule, regulation, executive order or other similar authority enacted, adopted,
promulgated or applied by any Governmental Body.
“Lien”
shall mean a mortgage, deed of trust, pledge, hypothecation, assignment,
encumbrance, charge, restriction, lien (statutory or otherwise, including,
without limitation, any lien for taxes), security interest, preference,
participation interest, priority or security agreement or preferential
arrangement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any document under the law of any applicable jurisdiction to evidence any of the
foregoing, other than (i) statutory, mechanics’ or other Liens incurred in
the Company’s ordinary course of business or (ii) Liens for taxes incurred
but not yet due.
“Order”
shall mean an order, ruling, decision, award, judgment, injunction or other
similar determination or finding by, before or under the supervision of any
Governmental Body or arbitrator.
“Permit”
shall mean a permit, license, certificate, waiver, notice or similar
authorization to which Buyer is a party or by which Buyer is bound or any of its
assets are subject.
“Purchase
Price” shall have the meaning set forth in Section 2.2 of
this Agreement.
“SEC”
shall mean the United States Securities and Exchange Commission.
“Securities
Act” shall mean the United States Securities Act of 1933, as amended, or any
successor federal statute, and the applicable rules and regulations promulgated
and in effect from time to time thereunder.
“Shares”
shall have the meaning set forth in the recitals to this Agreement.
ARTICLE
II
PURCHASE OF THE
SHARES
Section 2.1
Purchase and Sale of the
Shares. Subject to the terms and conditions hereof and in reliance upon
the representations and warranties of the parties contained or incorporated by
reference herein, simultaneous with the execution hereof, the Company shall sell
and deliver to Buyer, and Buyer shall purchase from the Company, the Shares, in
consideration of the payment of the Purchase Price noted herein.
Section 2.2
Purchase Price. As
payment in full for the Shares being purchased under this Agreement and against
delivery of the certificates therefor, simultaneous with the execution hereof,
Buyer shall pay $25,000 to the Company by wire transfer ($411 of which shall be
purchase price and $24,589 of which shall be additional paid-in capital) of
immediately available funds or by such other method as may be reasonably
acceptable to the Company (the “Purchase Price”).
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Section 2.3
Closing. The closing of
the purchase and sale of the Shares (the “Closing”) shall be held on the date of
this Agreement (“Closing Date”) at the offices of XxXxxxxxx Will & Xxxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as may be
agreed upon by the parties hereto.
Section 2.4
Closing Deliveries. All
actions taken at the Closing shall be deemed to have been taken
simultaneously.
(a) Buyer Deliveries. At
the Closing Buyer shall deliver to the Company the Purchase Price.
(b) Company Deliveries.
At the Closing, or within a reasonable time after the Closing but in no event
later than thirty (30) days after Closing, the Company shall deliver to Buyer
the certificates representing the Shares.
Section 2.5
Further Assurances. The
parties hereto shall execute and deliver such additional documents and take such
additional actions as any party reasonably may deem to be practical and
necessary in order to consummate the transactions contemplated by this
Agreement.
Section
2.6 Legend. Each
certificate evidencing the Shares and each certificate issued in exchange for or
upon the transfer of any Shares shall be stamped or otherwise imprinted with a
legend in substantially the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, 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 CERTIFICATE ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER SET FORTH IN THE LETTER AGREEMENT BY AND BETWEEN THE
COMPANY AND THE SPONSOR. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
FROM THE COMPANY AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE.”
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
Buyer
represents and warrants to the Company that the statements contained in this
ARTICLE III are
correct and complete as of the date of this Agreement.
Section 3.1
Organization and Good
Standing. Buyer is a limited liability company duly organized, validly
existing, and in good standing under the laws of the state of
Delaware.
Section 3.2
Power and Authority;
Enforceability. This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Buyer has full entity power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. Buyer has taken all actions necessary
to authorize the execution and delivery of this Agreement, the performance of
its obligations hereunder and the consummation of the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by, and
is enforceable against, Buyer.
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Section 3.3
Investment
Representations.
(a) Buyer
is an “accredited investor” as defined in Rule 501 of Regulation D
under the Securities Act.
(b) Buyer
has received, has thoroughly read, is familiar with and understands the contents
of this Agreement.
(c) Buyer
hereby acknowledges that an investment in the Shares involves certain
significant risks. Buyer acknowledges that there is a substantial risk that it
will lose all or a portion of its investment and that it is financially capable
of bearing the risk of such investment for an indefinite period of time. Buyer
has no need for liquidity in its investment in the Shares for the foreseeable
future and is able to bear the risk of that investment for an indefinite period.
Buyer understands that there presently is no public market for the Shares and
none is anticipated to develop in the foreseeable future. Buyer’s present
financial condition is such that Buyer is under no present or contemplated
future need to dispose of any portion of the Shares subscribed for hereby to
satisfy any existing or contemplated undertaking, need or indebtedness. Buyer’s
overall commitment to investments which are not readily marketable is not
disproportionate to its net worth and the investment in the Company will not
cause such overall commitment to become excessive.
(d) Buyer
acknowledges that the Shares have not been and will not be registered under the
Securities Act, or any state securities act, and are being sold on the basis of
exemptions from registration under the Securities Act and applicable state
securities acts, except those state securities acts that require registration of
the Shares thereunder. Reliance on such exemptions, where applicable, is
predicated in part on the accuracy of the Buyer’s representations and warranties
set forth herein. Buyer acknowledges and hereby agrees that the Shares will not
be transferable under any circumstances unless Buyer either registers the Shares
in accordance with federal and state securities laws or finds and complies with
an available exemption under such laws. Accordingly, Buyer hereby acknowledges
that there can be no assurance that it will be able to liquidate its investment
in the Company.
(e) There
are substantial risk factors pertaining to an investment in the Company. Buyer
acknowledges that it has read the information set forth above regarding certain
of such risks and is familiar with the nature and scope of all such risks,
including, without limitation, risks arising from the fact that the Company is
an entity with limited operating history and financial resources; and Buyer is
fully able to bear the economic risks of such investment for an indefinite
period, and can afford a complete loss thereof.
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(f) Buyer
has been given the opportunity to (i) ask questions of and receive answers
from the Company and its designated representatives concerning the terms and
conditions of the offering, the Company and the business and financial condition
of the Company and (ii) obtain any additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to assist Buyer in evaluating the advisability of the purchase of the
Shares and an investment in the Company. Buyer further represents and warrants
that, prior to signing this Agreement, it has asked such questions, received
such answers and obtained such information as it has deemed necessary or
advisable to evaluate the merits and risks of the purchase of the Shares and an
investment in the Company. Buyer is not relying on any oral representation made
by any person as to the Company or its operations, financial condition or
prospects.
(g) Buyer
understands that no federal, state or other governmental authority has made any
recommendation, findings or determination relating to the merits of an
investment in the Company.
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
Section 4.1
Organization and Good
Standing. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware.
Section 4.2
Power and Authority;
Enforceability. This Agreement constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. The Company has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The Company has taken all
actions necessary to authorize the execution and delivery of this Agreement, the
performance of its obligations hereunder, and the consummation of the
transactions contemplated hereby. This Agreement has been duly authorized,
executed, and delivered by, and is enforceable against, the
Company.
Section 4.3
No Violation; Necessary
Approvals. Neither the execution and delivery of this Agreement by the
Company, nor the consummation or performance by the Company of any of
transactions contemplated hereby, will: (a) with or without notice or lapse
of time, constitute, create or result in a breach or violation of, default
under, loss of benefit or right under or acceleration of performance of any
obligation required under any Law, Order, contract or Permit to which the
Company is a party or by which it is bound or any of its assets are subject, or
any provision of the Company’s organizational documents as in effect on the
Closing Date, (b) result in the imposition of any lien, claim or
encumbrance upon any assets owned by the Company; (c) require any Consent
under any contract or organizational document to which the Company is a party or
by which it is bound; or (d) require any Permit under any Law or Order
other than (i) required filings, if any, with the SEC and
(ii) notifications or other filings with state or federal regulatory
agencies after the Closing that are necessary or convenient and do not require
approval of the agency as a condition to the validity of the transactions
contemplated hereunder; or (e) trigger any rights of first refusal,
preferential purchase or similar rights with respect to any of the
Shares.
Section 4.4
Authorization of the
Shares. The Shares have been duly authorized and, when issued in
accordance with this Agreement, the Shares will be duly and validly issued,
fully paid and non-assessable shares of Common Stock and will be free and clear
of all Liens and claims, other than restrictions on transfer imposed by the
Securities Act and applicable state securities laws.
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ARTICLE
V
MISCELLANEOUS
Section 5.1
Entire Agreement. This
Agreement, together with the certificates, documents, instruments and writings
that are delivered pursuant hereto, constitutes the entire agreement and
understanding of the parties hereto in respect of its subject matter and
supersedes all prior understandings, agreements, or representations by or among
the parties hereto, written or oral, to the extent they relate in any way to the
subject matter hereof or the transactions contemplated hereby.
Section 5.2
Successors. All of the
terms, agreements, covenants, representations, warranties, and conditions of
this Agreement are binding upon, and inure to the benefit of and are enforceable
by, the parties hereto and their respective successors.
Section 5.3
Assignments. Except as
otherwise provided herein, no party hereto may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other party. Any purported assignment in violation of this Section 5.3 shall be
void and ineffectual and shall not operate to transfer or assign any interest or
title to the purported assignee.
Section 5.4
Waiver of Jury Trial.
THE PARTIES HERETO EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO JURY
TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER
AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE
TRANSACTIONS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY
AND ALL ACTIONS THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THE TRANSACTIONS, INCLUDING, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PARTIES HERETO
EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP AND THAT THEY WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT
IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED ORALLY OR IN WRITING, AND THE
WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. IN THE
EVENT OF AN ACTION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY
A COURT.
Section 5.5
Counterparts. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original but all of which together will constitute one and the same
instrument.
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Section 5.6
Headings. The article
and section headings contained in this Agreement are inserted for convenience
only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 5.7
Governing Law. This
Agreement, the entire relationship of the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant to
the laws of the State of Delaware, without giving effect to its choice of laws
principles.
Section 5.8
Amendments. This
Agreement may not be amended, modified or waived as to any particular provision,
except by a written instrument executed by all parties hereto.
Section 5.9
Severability. The
provisions of this Agreement will be deemed severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions hereof; provided that if any provision of this
Agreement, as applied to any party hereto or to any circumstance, is adjudged by
a Governmental Body, arbitrator, or mediator not to be enforceable in accordance
with its terms, the parties hereto agree that the Governmental Body, arbitrator,
or mediator making such determination will have the power to modify the
provision in a manner consistent with its objectives such that it is
enforceable, and/or to delete specific words or phrases, and in its reduced
form, such provision will then be enforceable and will be enforced.
Section 5.10
Expenses. Except as
otherwise expressly provided in this Agreement, each party hereto will bear its
own costs and expenses incurred in connection with the preparation, execution
and performance of this Agreement and the consummation of the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
financial advisors, legal counsel and accountants.
Section 5.11
Construction. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof will arise favoring or disfavoring any party
hereto because of the authorship of any provision of this Agreement. Any
reference to any federal, state, local, or foreign Law will be deemed also to
refer to Law as amended and all rules and regulations promulgated thereunder,
unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to
be followed by “without
limitation.” Pronouns in masculine, feminine, and neuter genders will be
construed to include any other gender, and words in the singular form will be
construed to include the plural and vice versa, unless the context otherwise
requires. The words “this
Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of
similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The parties hereto intend that each
representation, warranty, and covenant contained herein will have independent
significance. If any party hereto has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party hereto has
not breached will not detract from or mitigate the fact that such party hereto
is in breach of the first representation, warranty, or
covenant.
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Section 5.12
Waiver. No waiver by any
party hereto of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, may be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising because of any prior
or subsequent occurrence.
[Signature
page follows]
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IN WITNESS WHEREOF, the
undersigned have executed this Agreement to be effective as of the date first
set forth above.
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COMPANY:
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By:
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/s/ Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Vice President
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BUYER:
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GLOBAL
EAGLE ACQUISITION LLC
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By:
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/s/ Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Vice President
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[Signature
Page to Securities Purchase Agreement]
