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Exhibit 4.3
SECOND SUPPLEMENTAL
WARRANT AGREEMENT
This Second Supplemental
Warrant Agreement (this “Agreement” ),
dated March 24, 2008, is to the Warrant Agreement, dated as of
August 30, 2006 (the “Warrant
Agreement” ), by and between MARATHON ACQUISITION
CORP., a Delaware corporation, (the
“Company” ), and THE BANK OF NEW YORK, a
New York trust company (the successor thereto under the Warrant
Agreement, MELLON INVESTOR SERVICES LLC, a New Jersey limited
liability company, the “Warrant Agent”
).
WHEREAS ,
Section 6.01(b) of the Warrant Agreement provides that such
Warrant Agreement may be amended by the parties thereto with the
consent of the Holders (as defined in the Warrant Agreement) of not
fewer than a majority of the unexercised Warrants affected by such
amendment, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders
under this Agreement; and
WHEREAS , Marathon
Investors, LLC, the Holder of all of the unexercised Sponsor
Warrants (as defined in the Warrant Agreement) has consented to
amend the Warrant Agreement in the manner set forth herein;
and
WHEREAS, the Company
has proposed to enter into an Agreement and Plan of Merger (the
“ Merger Agreement ”), with GSL Holdings,
Inc., a Marshall Islands corporation and a wholly owned subsidiary
of the Company, CMA CGM S.A., a société anonyme organized
under the laws of France (the “ Stockholder
”), and Global Ship Lease, Inc., a Marshall Islands
corporation and a wholly owned subsidiary of Stockholder (the
“ Merger ”); and
WHEREAS, the
amendments to the Warrant Agreement as set forth in this Agreement
shall only become effective if the Merger is
consummated.
NOW, THEREFORE, in
consideration of the mutual agreements contained herein, and of
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound
hereby if and only if the Merger is consummated, the parties hereto
agree as follows:
a. Pursuant to
Section 6.01(b) thereto, the Warrant Agreement is amended
hereby by inserting the following paragraphs at the end of
Section 2.03(a) thereto:
“Notwithstanding the
above paragraph 2.03(a), in lieu of the payment of the Exercise
Price in cash, a Holder seeking to exercise a Sponsor Warrant shall
be obligated to convert any exercisable but unexercised Sponsor
Warrants into Shares (the “ Cashless Exercise
Conversion ”) as follows: upon exercise of the Cashless
Exercise Conversion, the Company shall deliver to the Holder
(without payment by the Holder of any of the Exercise Price in
cash) that number of Shares equal to the quotient obtained by
dividing (x) the product of the number of Shares underlying
the Sponsor Warrants being exercised, multiplied by the difference
between the Fair Market Value and the Exercise Price by
(y) the Fair Market Value. However, the Cashless Exercise
Conversion is not available unless the Fair Market Value exceeds
the Exercise Price. As used herein, the term “ Fair Market
Value ” shall mean the average reported last sale price
of the Company’s common stock, par value $.0001 per share,
for the ten (10) trading days ending on the third Business Day
prior to the exercise of the Cashless Exercise
Conversion.
Sponsor Warrants may be
exercised by a Holder in accordance with the Cashless Exercise
Conversion during the Exercise Period by delivering, not later than
5:00 P.M., New York time, on any Business Day during the Exercise
Period to the Warrant Agent at its stock transfer division
(i) the Warrant Certificate evidencing the Sponsor Warrants to
be exercised, and, in the case of a Book-Entry Warrant Certificate,
the Sponsor Warrants to be exercised free on the records of the
Depository to an account of the Warrant Agent at the Depository
designated for such purpose in writing by the Warrant Agent to the
Depository from time to time, (ii) an Election to Purchase,
properly completed and executed by the Holder on the reverse of the
Warrant Certificate or, in the case of a Book-Entry
Warrant
Certificate, properly
completed by the Participant and substantially in the form included
on the reverse of each Warrant Certificate, and (iii) an
instruction letter indicating that such Holder intends to exercise
such Holder’s Sponsor Warrants in accordance with the
Cashless Exercise Conversion applicable to such Sponsor Warrants
and such other documentation as the Warrant Agent may reasonably
request; provided , that any Holder that holds Sponsor
Warrants in a brokerage account shall follow the procedures of such
Holder’s broker and the Depository Trust Company in order to
exercise such Sponsor Warrants in accordance with the Cashless
Exercise Conversion.
The Warrant Agent shall have
no duty or obligation to make any d
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