JWL PARTNERS ACQUISITION CORP. WARRANT SUBSCRIPTION AGREEMENT
EX 10.31
THIS WARRANT SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of the 5th day of February,
2008, by and between JWL Partners Acquisition Corp., a Delaware corporation (the “Company”), and
▇▇▇▇ ▇▇▇▇▇▇▇ Company Defined Contribution Pension Plan and Trust (“Purchaser”).
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
“IPO”) of up 23,000,000 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 additional
share of Common Stock for $7.50 (a “Warrant”), subject to the terms and conditions set forth in the
Registration Statement and the Amended and Restated Warrant Agreement (the “Warrant Agreement”)
dated as of February 1, 2008, by and between the Company and Continental Stock Transfer & Trust
Company, as warrant agent; and
WHEREAS, the Company desires to commit to issue and sell, and Purchaser desires to commit to
purchase and acquire, Warrants on the terms and conditions set forth herein;
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 IPO, Purchaser hereby agrees to subscribe for and purchase from the Company, and the Company
hereby agrees to issue and sell to Purchaser, 300,000 Warrants at a purchase price of $1.00 per
Warrant for an aggregate purchase price of $300,000. 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) 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
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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.
4. Limitations on Transfer and Redemption.
(a) Transfer Restrictions. 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 Purchaser hereby acknowledges and agrees
that, notwithstanding a call for redemption of the Warrants by the Company in accordance with the
terms of the Warrant Agreement, no Warrants held by Purchaser or any of its Permitted Transferees
(as defined in the Warrant Agreement) at the time of such call for redemption shall be redeemable
by the Company.
5. Registration Rights. Immediately prior to or at the time of the closing of the IPO, the
Company and Purchaser shall enter into a registration rights agreement pursuant to which the
Company will grant certain registration rights to Purchaser relating to the Securities.
6. Restrictive Legends. All certificates representing the Securities (and any underlying
securities) 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 , 2008, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES OF THE
COMPANY.”
(c) Any legend required by appropriate blue sky officials.
7. 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
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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 officers and directors 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. 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.
(b) Purchaser understands that the Securities (and the underlying securities) 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 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) must be held indefinitely unless the Securities (and the underlying securities) are
subsequently registered under the Securities Act or an exemption from such registration is
available. Purchaser understands that the certificates evidencing the Securities (and the
underlying securities) will be imprinted with a legend which prohibits the transfer of the
Securities (and the underlying securities) unless the Securities (and the underlying securities)
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 Securities 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) under the
Securities Act, the
Securities (and the underlying securities) 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
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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) under Rule 144 even if the minimum holding period requirement had been
satisfied. Notwithstanding Sections 7(c) and (d) hereof, Purchaser understands that the Securities
may not be resold under Rule 144 in certain circumstances until one year after the consummation of
a Business Combination.
(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 Securities Act.
(g) Purchaser 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 Purchaser to authorize the execution, delivery and performance of this Agreement and all other
agreements and instruments delivered by Purchaser in connection with the transactions contemplated
hereby has been duly and validly taken, and 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 the organizational documents of Purchaser or with any material contract by which
Purchaser or its property is bound, or any laws or regulations or decree, ruling or judgment of any
court applicable to Purchaser or its property. The principal place of business of Purchaser is as
set forth on the signature page hereto.
(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.
8. 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
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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.
9. 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.
10. 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.
(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.
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(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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel to the Company and that ▇▇▇▇▇▇▇▇▇
Traurig, 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: | ||||||
| JWL PARTNERS ACQUISITION CORP. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
|
|||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Title: Vice Chairman and Corporate Secretary | ||||||
| Address: ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||||||
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
||||||
| PURCHASER: | ||||||
| ▇▇▇▇ ▇▇▇▇▇▇▇ COMPANY DEFINED | ||||||
| CONTRIBUTION PENSION PLAN AND TRUST | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| Title: Trustee | ||||||
| Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||||||
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
||||||
Exhibit A
Warrant Agreement