EXHIBIT 10.12
SECOND AMENDED AND RESTATED
PLACEMENT WARRANT PURCHASE AGREEMENT
SECOND AMENDED AND RESTATED PLACEMENT WARRANT PURCHASE AGREEMENT (this
"Agreement") made as of this 27th day of September, 2006 between ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Acquisition Corporation, a Delaware corporation (the "Company"), and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Purchaser").
WHEREAS, the Company and the Purchaser have entered into a Placement Unit and
Warrant Purchase Agreement dated as of July 25, 2006;
WHEREAS, the Company and the Purchaser have entered into an Amended and
Restated Unit and Warrant Purchase Agreement dated as of September 7, 2006
(the "Restated Placement Unit Purchase Agreement");
WHEREAS, the Company has filed with the Securities and Exchange Commission
("SEC") a registration statement on Form S-1, as amended (the "Registration
Statement"), in connection with the Company's initial public offering (the
"IPO") of up to 15,625,000 units, each unit ("Unit") consisting of one share
of the Company's common stock, $.0001 par value (the "Common Stock"), and
(ii) one warrant, each warrant to purchase one share of Common Stock;
WHEREAS, the Company desires to sell in a private placement to the Purchaser
(the "Placement") 4,000,000 warrants (the "Placement Warrants") substantially
identical to the warrants being issued in the IPO pursuant to the terms and
conditions hereof and as set forth in the Registration Statement, as
described in the Registration Statement;
WHEREAS, the Placement Warrants (the "Warrants") shall be governed by the
Warrant Agreement filed as an exhibit to the Registration Statement;
WHEREAS, the Purchaser is entitled to registration rights with respect to the
Warrants and the Common Stock underlying the Warrants (collectively, the
"Registrable Securities") on the terms set forth in this Agreement; and
WHEREAS, the Purchaser and the Company desire to amend and restate the
Restated Placement Unit Purchase Agreement as set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
1. PURCHASE OF WARRANTS. The Purchaser hereby agrees to purchase 4,000,000
Placement Warrants at a purchase price of $1.00 per Placement Warrant, for a
total of $4,000,000 (the "Purchase Price").
2. CLOSING. The closing of the purchase and sale of the Placement Warrants
(the "Closing") will take place at such time and place as the parties may
agree, but in no event later than the date on which the IPO closes (the
"Closing Date"). On the Closing Date, the Purchaser shall pay the Purchase
Price by wire transfer of funds to an account maintained by the Company.
Immediately prior to the closing of the IPO, the Company shall deposit the
Purchase Price into the trust account described in the Registration Statement
(the "Trust Account"). The certificates for the Warrants shall be delivered
to the Purchaser promptly after the closing of the IPO.
3. BUSINESS COMBINATION As used herein, a "Business Combination" shall mean
an acquisition, or acquisition of control, through a merger, capital stock
exchange, asset acquisition, stock purchase or other similar business
combination, of one or more assets or operating businesses in the
telecommunications and media industries selected by the Company.
4. LOCK-UP AGREEMENT. The Purchaser shall not, without the prior written
consent of the Company and Deutsche Bank Securities Inc. ("Deutsche Bank"),
the underwriters, (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the SEC in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder (the "Exchange Act") with respect to, any Placement
Warrants, (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of Placement Warrants, or (iii) publicly announce an intention to effect any
transaction specified in clause (i) or (ii) until after the consummation of a
Business Combination. In order to enforce this covenant, the Purchaser
agrees, if requested by Deutsche Bank, to deposit the Placement Warrants in
an account to be established by Deutsche Bank. Notwithstanding the foregoing,
the undersigned may transfer his Placement Warrants, while subject to the
restriction hereunder (i) by gift to a member of the undersigned's immediate
family or to a trust, the beneficiary of which is a member of an
undersigned's immediate family, an affiliate of the undersigned or to a
charitable organization, (ii) by virtue of the laws of descent and
distribution upon death of the undersigned, (iii) pursuant to a qualified
domestic relations order or (iv) to another
officer or director of the Company; provided, however, that the permissive
transfers pursuant to clauses (i) - (iv) may be implemented only upon the
respective transferee's written agreement to be bound by the terms and
conditions of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
6.1. The Purchaser is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
6.2. The Placement Warrants and Common Stock underlying such Placement
Warrants are being acquired for the Purchaser's own account, only for
investment purposes and not with a view to, or for resale in connection with,
any distribution or public offering thereof within the meaning of the
Securities Act.
6.3. The Purchaser has the full right, power and authority to enter into this
Agreement and this Agreement is a valid and legally binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms.
6.4. The Purchaser acknowledges that the Placement Warrants, and the shares
issued upon exercise of the Placement Warrants, will bear 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 UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS. THEY 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 AND LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED."
7. REGISTRATION RIGHTS AGREEMENT. At or prior to the Closing, the Company and
the Purchaser shall enter into a mutually satisfactory registration rights
agreement having the terms described in the Registration Statement.
8. WAIVER OF CLAIMS; INDEMNIFICATION The Purchaser hereby waives any and all
rights to assert any present or future claims, including any right of
rescission, against the Company or Deutsche Bank with respect to his purchase
of the Placement Warrants, and the Purchaser agrees to indemnify and hold the
Company and Deutsche Bank harmless from all losses, damages or expenses that
relate to claims or proceedings brought against the Company or Deutsche Bank
by any of the Purchaser's transferees, heirs, assigns or any subsequent
holders of the Placement Warrants or underlying securities.
9. COUNTERPARTS; FACSIMILE. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an
original and all of which taken together shall constitute one and the same
instrument. This Agreement or any counterpart may be executed via facsimile
transmission, and any such executed facsimile copy shall be treated as an
original.
10. GOVERNING LAW. This Agreement shall for all purposes be deemed to be made
under and shall be construed in accordance with the laws of the State of New
York. Each of the parties hereby agrees that any action, proceeding or claim
against it arising out of or relating in any way to this Agreement shall be
brought and enforced in the courts of the State of New York or the United
States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. Each of
the parties hereby waives any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and assigns, provided,
however, that Purchaser shall not have the right to assign any of its rights
hereunder to purchase Placement Warrants to any other person.
12. THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person; provided that Deutsche Bank shall be a third party beneficiary
of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
27th day of September, 2006.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION CORPORATION
A Delaware Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
PURCHASER:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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