Exhibit 4.1
THIRD SUPPLEMENTAL WARRANT
AGREEMENT
This Third Supplemental Warrant
Agreement (this “Agreement” ), dated
August 6 , 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, the Company has proposed to enter into an
Agreement and Plan of Merger, as amended, (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 , 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 , the Merger is conditioned upon receipt of the
requisite consents to provide for the entry into this Warrant
Agreement; and
WHEREAS , pursuant to a consent solicitation the Holders
of a majority of the unexercised Warrants (as defined in the
Warrant Agreement) have consented to amend the Warrant Agreement in
the manner set forth herein.
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:
1. Warrant Agreement
.
a. Pursuant to
Section 6.01(b) thereto, the Warrant Agreement is amended
hereby by restating the third paragraph of Section 2.02 in its
entirety to read as follows:
“As used herein, the term
“Business Combination” shall mean the effecting of a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or other similar business combination involving the
Company and one or more operating businesses having, collectively,
a fair market value (as calculated in accordance with the
Company’s Amended and Restated Certificate of Incorporation)
of at least 80% of the amount in the Trust Account (as defined in
the Company’s Amended and restated Certificate of
Incorporation (excluding from such balance any amount that is or
will be due and payable as deferred underwriting discounts and
commissions pursuant to the terms of the Underwriting Agreement))
at the time of such acquisition. For the avoidance of doubt, a
Business Combination could include a merger of the Company into or
with a non-U.S. entity and the subsequent business combination with
another entity by merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or similar
transaction.”
b. Pursuant to
Section 6.01(b) thereto, the Warrant Agreement is amended
hereby by restating Section 6.02 in its entirety to read as
follows:
“SECTION 6.02. Merger,
Consolidation, Sale, Transfer or Conveyance. The Company may
consolidate or merge with or into any other corporation or sell,
lease, transfer or convey all or substantially all of its assets to
any other corporation; provided, that (i) either (x) the
Company is the continuing corporation or (y) the corporation
or entity (if other than the Company) that is formed by or results
from any such consolidation or merger or that receives such assets
assumes the obligations of
the Company (the “Successor
Entity”) with respect to the performance and observance of
all of the covenants and conditions of this Agreement to be
performed or observed by the Company and (ii) the Company or
such Successor Entity, as the case may be, must not immediately be
in default under this Agreement. For the avoidance of doubt, the
Successor Entity can result from the company merging into a
non-U.S. entity which merges
