ex102tos10710701292008.htm


    Exhibit
      10.2

     

     

    INSIDER
      WARRANT PURCHASE AGREEMENT

     

    This
      INSIDER WARRANT PURCHASE AGREEMENT, dated as of January 18, 2008 (this
“Agreement”), is entered into by and between Open Acquisition Corp., a
      Delaware corporation (the “Company”), and Open Acq LLC, a Delaware
      limited liability company (the “Sponsor”).

     

    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 “Initial Public
      Offering”) of 12,500,000 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

     

    WHEREAS,
      the Company desires to issue and sell, and the Sponsor desires to purchase
      an
      aggregate of 3,500,000 Warrants in a private placement to occur on or prior
      to
      the effectiveness of the Initial Public Offering;

     

    NOW,
      THEREFORE, for and in consideration of the promises and mutual covenants set
      forth herein, the parties hereto agree as follows:

     

    1.           Purchase
      and Sale of the Insider Warrants.  On or prior to the date of
      effectiveness of the initial public offering, the Company shall issue and sell
      to the Sponsor, and the Sponsor shall purchase from the Company, an aggregate
      of
      3,500,000 Warrants (the “Insider Warrants”) at a purchase price of $1.00
      per Insider Warrant for an aggregate purchase price of
      $3,500,000.  The terms of the Insider Warrants shall be set forth in a
      Warrant Agreement to be entered into by and between the Company and Continental
      Stock Transfer & Trust Company (or such other warrant agent as selected by
      the Company), as warrant agent, which Warrant Agreement shall contain such
      terms
      and conditions with respect to the Insider Warrants as are contained in the
      Registration Statement and such other terms as are typical in warrants
      agreements of blank check companies (the “Warrant
      Agreement”).

     

    2.           Closing
      of Purchase and Sale.  The closing of the purchase and sale of the
      Insider Warrants hereunder, including payment for and delivery of the Insider
      Warrants, shall take place at the offices of the Company or the Company’s legal
      counsel on or prior to the effectiveness of the Initial Public
      Offering.  At the closing, the Company shall deliver to the Sponsor a
      certificate evidencing the Insider Warrants, substantially in the form attached
      as an exhibit to the Warrant Agreement, registered in the Sponsor’s name, upon
      the payment of the aggregate purchase price therefor in immediately available
      funds by delivery of a cashiers check or by wire transfer to an account
      designated by the Company.

     

    3.           Registration
      Rights.  At the time of the closing of the Initial Public
      Offering, the Company and the Sponsor shall enter into a registration rights
      agreement pursuant to which the Company will grant certain registration rights
      to the Sponsor relating to the Insider Warrants and the Common Stock issuable
      upon exercise of the Insider Warrants.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    4.           Company
      Representations and Warranties.  In connection with the issuance
      and sale of the Insider Warrants, the Company hereby represents and warrants
      to
      the Sponsor the following:

     

    (a)           Organization
      and Corporate Power.  The Company is a corporation duly
      incorporated, validly existing and in good standing under the laws of the State
      of Delaware and the Company has all necessary corporate power and authority
      to
      enter into this Agreement and to consummate the transactions contemplated
      hereby.

     

    (b)           Authorization;
      No Breach.  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.  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 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).  The issuance and sale
      by the Company of the Insider Warrants 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.

     

    (c)           Title
      to Securities.  Upon issuance in accordance with, and payment
      pursuant to, the terms hereof and the Warrant Agreement, the Common Stock
      issuable upon exercise of the Insider Warrants will be duly and validly issued,
      fully paid and nonassessable.  Upon issuance in accordance with, and
      payment pursuant to, the terms hereof and the Warrant Agreement, the Sponsor
      will have good title to the Insider Warrants and the Common Stock issuable
      upon
      exercise of such Insider Warrants, free and clear of all liens, claims and
      encumbrances of any kind, other than transfer restrictions hereunder and under
      the other agreements contemplated hereby.

     

    5.           Sponsor
      Representations and Warranties.  In connection with the purchase
      of the Insider Warrants, the Sponsor hereby represents and warrants to the
      Company the following:

     

    (a)           Investment
      Representations.

     

    (i)           The
      Sponsor is familiar with the Company’s business plans and financial condition
      and has acquired sufficient information about the Company to reach an informed
      and knowledgeable decision to acquire the Insider Warrants.  The
      Sponsor has been afforded the opportunity to ask questions of the executive
      officers and directors of the Company.  The Sponsor understands that
      its investment in the Insider Warrants involves a high degree of
      risk.  The Sponsor has sought such accounting, legal and tax advice as
      the Sponsor has considered necessary to make an informed investment decision
      with respect to the Sponsor’s acquisition
      of the Insider Warrants.  The Sponsor 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 Insider Warrants, and is able
      to
      bear the economic risk of an investment in the Insider Warrants in the amount
      contemplated hereunder.  The Sponsor understands that there presently
      is no public market for the Insider Warrants and none is anticipated to develop
      in the foreseeable future.  The Sponsor can afford a complete loss of
      its investment in the Insider Warrants.  The Sponsor is purchasing the
      Insider Warrants for investment for the Sponsor’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; provided however the Company
      acknowledges that certain of the Insider Warrants may ultimately be purchased
      by
      certain directors of the Company provided that such directors make the same
      representations and warranties as are contained in this Agreement and any
      agreement with the directors includes the same terms and conditions as are
      contained in this Agreement.

     

    
      
         

      

      
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    (ii)           The
      Sponsor understands that the Insider Warrants 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
      the
      Sponsor’s compliance with, the representations and warranties and agreements of
      the Sponsor set forth herein to determine the availability of such exemptions
      and the eligibility of the Sponsor to acquire such Insider Warrants, including,
      but not limited to, the bona fide nature of the Sponsor’s investment intent as
      expressed herein.

     

    (iii)           The
      Sponsor further acknowledges and understands that the Insider Warrants must
      be
      held indefinitely unless the Insider Warrants are subsequently registered under
      the Securities Act or an exemption from such registration is
      available.  The Sponsor understands that the certificates evidencing
      the Insider Warrants will be imprinted with a legend that prohibits the transfer
      of the Insider Warrants unless the Insider Warrants are registered or such
      registration is not required in the opinion of counsel for the
      Company.

     

    (iv)           The
      Sponsor represents that the Sponsor is an “accredited investor” as that
      term is defined in Rule 501 of Regulation D promulgated under the Securities
      Act.

     

    (v)           The
      Sponsor 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.

     

    (vi)           The
      Sponsor 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 Insider Warrants or the fairness or suitability
      of the investment in the Insider Warrants, nor have such authorities passed
      upon
      or endorsed the merits of the offering of the Insider Warrants.

     

    
      
         

      

      
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    (b)           Organization
      and Corporate Power.  The Sponsor is a limited liability company
      duly organized, validly existing and in good standing under the laws of the
      State of Delaware.  The Sponsor has all necessary limited liability
      company power and authority to enter into this Agreement and to consummate
      the
      transactions contemplated hereby.

     

    (c)           Authorization;
      No Breach.  All limited liability company action necessary to be
      taken by the Sponsor to authorize the execution, delivery and performance of
      this Agreement and all other agreements and instruments delivered by the Sponsor
      in connection with the transactions contemplated hereby has been duly and
      validly taken, and this Agreement has been duly executed and delivered by the
      Sponsor.  This Agreement constitutes the valid, binding and
      enforceable obligation of the Sponsor, enforceable in accordance with its terms,
      except as enforceability may be limited by 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).  The purchase by the
      Sponsor of the Insider Warrants does not conflict with the organizational
      documents of the Sponsor or with any material contract by which the Sponsor
      or
      its property is bound, or any laws or regulations or decree, ruling or judgment
      of any court applicable to the Sponsor or its property.

     

    6.           Survival
      of Representations and Warranties.  All of the representations and
      warranties contained herein shall survive the closing date of the purchase
      and
      sale of the Insider Warrants.

     

    7.           Transfer
      and Redemption Restrictions.

     

    (a)           Transfer
      Restrictions.  The Sponsor hereby acknowledges and agrees to be
      bound by the transfer restrictions set forth in the Warrant
      Agreement.

     

    (b)           Redemption.  Each
      of the Company and the Sponsor hereby acknowledges and agrees that,
      notwithstanding a call for redemption of the Insider Warrants by the Company
      in
      accordance with the terms of the Warrant Agreement, no Insider Warrants held
      by
      the Sponsor 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.

     

    8.           Miscellaneous.

     

    (a)           Governing
      Law.  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.

     

    (b)           Further
      Execution.  The parties agree to take all such further action 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 Insider Warrants that are the subject of this Agreement.

     

    
      
         

      

      
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    (c)           Amendments.  This
      Agreement may not be amended, modified or waived, in whole or in part, except
      by
      an agreement in writing signed by each of the parties hereto.

     

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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day
      and year first written above.

     

    
      	 	
              COMPANY:

            
	 	
              OPEN
                ACQUISITION CORP.

            
	 	 
	 	 
	 	
              By:

            	/s/
              Michael
              S. Liebowitz
	 	 	
              Name:

            	
              Michael
                S. Liebowitz

            
	 	 	
              Title:

            	
              President
                and Chief Executive Officer

            
	 	 
	 	 
	 	
              SPONSOR:

            
	 	
              OPEN
                ACQ LLC

            
	 	 
	 	 
	 	
              By:

            	/s/
              Howard
              M. Lorber
	 	 	
              Name:

            	
              Howard
                M. Lorber

            
	 	 	
              Title:

            	
              Managing
                Member

            


    

    

      


      
        
           

        

        
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