STOCK PURCHASE AGREEMENT
Exhibit
10.6
STOCK
PURCHASE AGREEMENT (this “Agreement”) made as of
this 22nd day of September,
2009 between Xxxxx Acquisition Company I, Inc., a Delaware corporation (“Buyer” or “HACI”) and the
signatory on the execution page hereof (“Seller”).
WHEREAS, Buyer was organized for the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition or other similar business combination, an operating business
(“Business Combination”); and
WHEREAS, Buyer consummated an initial public offering in October, 2007 (“IPO”) in connection
with which it raised net proceeds of approximately $529.1 million, a significant portion of which
was placed in a trust account pending the consummation of a Business Combination, or the
dissolution and liquidation of Buyer in the event it is unable to consummate a Business Combination
on or prior to September 28, 2009 (or October 5, 2009 in the event that the Acquisition is approved
by Buyer stockholders); and
WHEREAS, Buyer has entered into that certain Purchase and IPO Reorganization Agreement dated
as of August 2, 2009, by and among HACI, Resolute Energy Corporation, a Delaware corporation (the
“REC”), Resolute Subsidiary Corporation, a Delaware corporation, Resolute Aneth, LLC, a Delaware
limited liability company, Resolute Holdings, LLC, a Delaware limited liability company, Resolute
Holdings Sub, LLC, a Delaware limited liability company (“Holdings Sub”), and HH-HACI, L.P., a
Delaware limited partnership (collectively, the “Acquisition”), pursuant to which, through a
series of transactions, HACI stockholders will acquire a majority of the outstanding common stock
of REC, par value $0.0001 per share, (the “REC Common Stock”), and REC will acquire HACI and the
business and operations of Holdings Sub; and
WHEREAS, the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding common shares of HACI at the special
meeting called to approve the Acquisition; and
WHEREAS, pursuant to certain provisions in Buyer’s certificate of incorporation, a holder of
shares of Buyer’s common stock issued in the IPO may, if it votes against the Acquisition, demand
that Buyer convert such common shares into cash (“Conversion Rights”); and
WHEREAS, the Acquisition cannot be consummated if holders of 30% or more of HACI common stock
issued in the IPO exercise their Conversion Rights; and
WHEREAS, Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller the
common shares set forth on the execution page of this Agreement (“Shares”) for the purchase price
per share set forth therein (“Purchase Price Per Share”) and for the aggregate purchase price set
forth therein (“Aggregate Purchase Price”).
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Purchase. Subject to Section 7, Seller hereby sells to Buyer and Buyer
hereby purchases
from Seller at the Closing (as defined in Section 4(c))
the Shares at the Purchase Price
Per Share, for the Aggregate Purchase Price.
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2. Agreement
not to Convert; Appointment of Proxy and Attorney-in-Fact. In further
consideration of the Aggregate Purchase Price, Seller hereby agrees it has not and will not
exercise its Conversion Rights or, if it has already exercised its Conversion Rights, it hereby
withdraws and revokes such exercise and will execute all necessary documents and take all actions
required in furtherance of such revocation. Seller acknowledges that the record date to vote on the
proposals set forth in the proxy statement/prospectus (the
“Proxy Statement”) filed by Buyer with
the U.S. Securities Exchange Commission (the “SEC”) has passed. Accordingly, solely with respect to
the vote for the Acquisition and the other proposals set forth in the Proxy Statement, Seller
hereby agrees to upon request of Buyer vote in favor of the Acquisition and such other proposals
and appoints Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx and each of them each with full power of
substitution, as his proxy and attorney-in-fact, to the full extent of Seller’s rights with respect
to the Shares (and any and all other shares or securities or rights issued or issuable in respect
thereof) to vote in such manner as each such person or his substitute shall in his sole discretion
deem proper, and to otherwise act (including without limitation acting by written consent) with
respect to all the Shares at any meeting of stockholders (whether annual or special and whether or
not an adjourned meeting) of Buyer held on or prior to September 28, 2009. This proxy is coupled
with an interest and is irrevocable. Execution by Seller of this Agreement shall revoke, without
further action, all prior proxies granted by Seller at any time with respect to the Shares (and
such other shares or other securities) and no subsequent proxies will be given by Seller (and if
given will be deemed not to be effective). This Section 2 shall be governed by the laws of
the State of Delaware.
3. No Right to Additional Shares. HACI’s stockholders of record are entitled to
receive one share of REC Common Stock for each share of HACI common stock owned immediately prior
to the consummation of the Acquisition (the “Exchange”). Although Seller will be a stockholder of
record immediately prior to the Acquisition, Seller hereby acknowledges that Seller irrevocably
waives any right, title or interest it may have in receiving any such REC Common Stock distributed
pursuant to the Exchange. Seller hereby acknowledges that by virtue of the sale hereunder, Seller
will not become a stockholder of REC, and the Shares shall automatically be cancelled and shall
cease to exist and shall represent only the right to receive the Aggregate Purchase Price there
for in accordance with the terms of this Agreement. Additionally, each of Buyer and Seller hereby
agree and acknowledge that this provision is material to this Agreement and a significant
consideration in Buyer’s willingness to enter into this Agreement.
4. Closing Matters.
(a) Within one business day of the date of this Agreement, (i) Seller shall provide Buyer
with a true and correct copy of the voting instruction form with respect to the Shares held by
Seller indicating the financial institution through which such shares are held and the control
number provided by Broadridge Financial Solutions (or other similar service provider) regarding
the voting of the Shares or written confirmation of such information as would appear on the voting
instruction form; and (ii) Buyer shall send the notice attached as Annex 1 hereto to HACI’s
transfer agent.
(b) Prior to the Closing, Seller shall deliver or cause to be delivered to Buyer appropriate
instructions for book entry transfers of ownership of the Shares from Seller to Buyer.
(c) The
closing of the purchase and sale of the Shares (“Closing”) will occur on the date on
which Buyer’s trust account is liquidated after the Acquisition
is consummated (the “Closing Date”). At the Closing, Buyer shall pay Seller the Aggregate Purchase Price by wire transfer from
HACI’s trust account of immediately available funds to an account specified by Seller and Seller
against delivery of the Shares shall deliver the Shares to Buyer electronically using the
Depository Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System to an account specified
by Buyer. It shall be a condition to the obligation of Buyer on the one hand and Seller on the
other hand, to consummate the
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transfer
of the Shares contemplated hereunder that the other party’s representations and
warranties are true and correct on the Closing Date with the same effect as though made on such
date, unless waived in writing by the party to whom such representations and warranties are made.
5. Representations and Warranties of the Seller. Seller hereby represents and
warrants to
Buyer on the date hereof and on the Closing that:
(a) Sophisticated Seller. Seller is sophisticated in financial matters and is able to
evaluate the risks and benefits attendant to the sale of Shares to Buyer.
(b) Independent Investigation. Seller, in making the decision to sell the Shares to
Buyer, has not relied upon any oral or written representations or assurances from Buyer or any of
its officers, directors or employees or any other representatives or agents of Buyer. Seller has
had access to all of the filings made by HACI and REC with the SEC, pursuant to the Securities
Exchange Act of 1934 (the “Exchange Act”) and the Securities Act of 1933 in each case to the
extent available publicly via the SEC’s Electronic Data Gathering, Analysis and Retrieval system.
(c) Authority. This Agreement has been validly authorized, executed and delivered by
Seller and, assuming the due authorization, execution and delivery thereof by Buyer, is a valid and
binding agreement enforceable in accordance with its terms, subject to the general principles of
equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally.
The execution, delivery and performance of this Agreement by Seller does not and will not conflict
with, violate or cause a breach of, constitute a default under, or
result in a violation of (i) any
agreement, contract or instrument to which Seller is a party which would prevent Seller from
performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Seller
is subject.
(d) No Legal Advice from Buyer. Seller acknowledges that it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement with Seller’s own
legal counsel and investment and tax advisors. Seller is not relying on any statements or
representations of Buyer or any of its representatives or agents for legal, tax or investment
advice with respect to this Agreement or the transactions contemplated by the Agreement.
(e) Ownership of Shares. Seller is the legal and beneficial owner of the Shares and
will transfer to Buyer on the Closing Date good and marketable title to the Shares free and clear
of any liens, claims, security interests, options, charges or any other encumbrance whatsoever.
The Seller beneficially owned all of the Shares as of the close of the trading day on August 31,
2009 and has the sole right to exercise conversion rights with respect to all of the Shares.
(f) Number of Shares. The Shares being transferred pursuant to this Agreement
represent all the common stock owned by Seller as of the date hereof.
(g) Seller Taxes. Seller understands that Seller (and not the Buyer) shall be
responsible for any and all tax liabilities of Seller that may arise as a result of the
transactions contemplated by this Agreement.
(h) Aggregate Purchase Price Negotiated. Seller represents that both the amount of
Shares and the Aggregate Purchase Price were negotiated figures by the parties and that the terms
and conditions by the parties of this Agreement may differ from arrangements entered into with
other holders of Buyer’s common stock.
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6. Representations and Warranties of Buyer. Buyer hereby represents to the Seller
that:
(a) Sophisticated Buyer. Buyer is sophisticated in financial matters and is able to
evaluate the risks and benefits attendant to the purchase of Shares from Seller.
(b) Independent Investigation. Buyer, in making the decision to purchase the Shares
from Seller, has not relied upon any oral or written representations or assurances from Seller or
any of its officers, directors, partners or employees or any other representatives or agents of
Seller.
(c) Authority. This Agreement has been validly authorized, executed and delivered by
Buyer and, assuming the due authorization, execution and delivery thereof by Seller, is a valid and
binding agreement enforceable in accordance with its terms, subject to the general principles of
equity and to bankruptcy or other laws affecting the enforcement of creditors’ rights generally.
The execution, delivery and performance of this Agreement by Buyer does not and will not conflict
with, violate or cause a breach of, constitute a default under, or result in a violation of (i) any
agreement, contract or instrument to which Buyer is a party which would prevent Buyer from
performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Buyer is
subject.
(d) No Legal Advice from Seller. Buyer acknowledges that it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement with Buyer’s own
legal counsel and investment and tax advisors. Buyer is relying solely on such counsel and
advisors and not on any statements or representations of Seller or any of its representatives or
agents for legal, tax or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
7. Termination. Notwithstanding any provision in this Agreement to the contrary, this
Agreement shall become null and void and of no force and effect upon the termination of the
Acquisition. Notwithstanding any provision in this Agreement to the contrary, Buyer’s obligation
to purchase the Shares from Seller shall be conditioned on the consummation of the Acquisition.
8. Covenant of Seller. After the execution of this Agreement and prior to Closing,
Seller shall not acquire any common stock, warrants or other securities of HACI or effect any
derivative transactions with respect thereto.
9. Acknowledgement; Waiver. Seller (i) acknowledges that Buyer may possess or have
access to material non-public information which has not been communicated to Seller; (ii) hereby
waives any and all claims, whether at law, in equity or otherwise, that he, she, or it may now
have or may hereafter acquire, whether presently known or unknown, against Buyer or any of its
officers, directors, employees, agents, affiliates, subsidiaries, successors or assigns relating
to any failure to disclose any non-public information in connection with the transaction
contemplated by this Agreement, including, without limitation, any claims arising under Rule
10-b(5) of the Exchange Act; and (iii) is aware that Buyer is relying on the truth of the
representations set forth in Section 5 of this Agreement and the foregoing acknowledgement
and waiver in clauses (i) and (ii) above, respectively, in connection with the transactions
contemplated by this Agreement.
10. 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.
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11. 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 (except to the extent
otherwise provided in Section 2). 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.
12. Remedies. Each of the parties hereto acknowledges and agrees that, in the event
of any breach of any covenant or agreement contained in this Agreement by the other party, money
damages may be inadequate with respect to any such breach and the non-breaching party may have no
adequate remedy at law. It is accordingly agreed that each of the parties hereto shall be
entitled, in addition to any other remedy to which they may be entitled at law or in equity, to
seek injunctive relief and/or to compel specific performance to prevent breaches by the other
party hereto of any covenant or agreement of such other party contained in this Agreement.
13. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, successors and permitted
assigns. This Agreement shall not be assigned by either party without the prior written consent of
the other party hereto.
14. Headings. The descriptive headings of the Sections hereof are inserted for
convenience only and do not constitute a part of this Agreement.
15. Entire Agreement; Changes in Writing. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior agreements,
representations and warranties, whether oral or written, among the parties hereto relating to the
transaction contemplated hereby. Neither this Agreement nor any provision hereof may be changed or
amended orally, but only by an agreement in writing signed by the other party hereto.
16. Trust Waiver. HACI’s initial public offering was consummated on October 3, 2007
as a result of which it received net proceeds of $529.1 million which are held in a trust fund
established by HACI for the benefit of its public stockholders (the
“Trust Fund”). The Trust Fund
is invested in U.S. Treasury Bills with a maturity with a maturity of 180 days or less in a trust
account at JPMorgan Chase Bank, N.A. and held in trust by Continental Stock Transfer & Trust
Company (the “Trustee”) pursuant to the Investment Management Trust Agreement, dated as of
September 27, 2007, between HACI and Trustee. Seller understands that, except for a portion of the
interest earned on the amounts held in the Trust Fund, HACI may
disburse monies from the Trust Fund
only: (i) to HACI in limited amounts from time to time (and in no event more than $6,555,000 in
total) in order to permit HACI to pay its operating expenses; (ii) if HACI completes an initial
business combination, to certain dissenting public stockholders, to the underwriters in the amount
of underwriting discounts and commissions they earned in HACI’s initial public offering but whose
payment they have deferred, and then to HACI; and (iii) if HACI fails to complete an initial
business combination within the allotted time period and liquidates, subject to the terms of the
agreement governing the Trust Fund, to HACI’s public stockholders (as such term is defined in the
agreement governing the Trust Fund). Seller agrees that, notwithstanding any other provision
contained in this Agreement, it does not now have, and shall not at any time prior to the
consummation of the Acquisition have any claim to, or make any claim against, the Trust Fund
arising out of or in connection with this Agreement or the Acquisition, regardless of whether such
claim arises based on contract, tort, equity or any other theory of legal liability (any and all
such claims are collectively referred to in this
Section 16 as the “Claims”). Seller
hereby irrevocably waives any Claim it may have, now or in the future arising under this Agreement
or otherwise, and will not seek recourse
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against, the Trust Fund for any reason whatsoever in respect thereof other than any amount
constituting the Aggregate Purchase Price that is payable in accordance with the terms of this
Agreement. This waiver is intended and shall be deemed and construed to be irrevocable and absolute
on the part of Seller, and shall be binding on its subsidiaries, affiliated entities, directors,
officers, employees, stockholders, representatives, advisors, all other associates and affiliates,
and its and their respective heirs, successors and assigns, as the case may be. Seller acknowledges
that it benefits from this Agreement and that HACI is entering into this Agreement upon reliance on
this Section 16. Other than with respect to an action for the recovery of the Aggregate
Purchase Price to be paid to Seller in connection with this Agreement; in the event Seller
commences any other action or proceeding based upon, in connection with, relating to or arising out
of any matter relating to HACI, which proceeding seeks, in whole or in part, relief against the
Trust Fund or the public stockholders of HACI, whether in the form of money damages or injunctive
relief, HACI shall be entitled to recover from Seller the associated legal fees and costs in
connection with any such action.
17. Seller W-9. Seller agrees to provide to Buyer an Internal Revenue Service
Request for Taxpayer Identification Number and Certification Form W-9.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth on
the first page of this Agreement.
| XXXXX ACQUISITION COMPANY I, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | CEO | |||
| WESTCHESTER CAPITAL MANAGEMENT, INC. |
||||
| By: | 
|
|||
| Name: | ||||
| Title: | ||||
Purchase Price Per Share:
|
$9.77 (subject to adjustment at Closing so that such amount will be an amount per share equal to the amount per share converting stockholders receive pursuant to Section 9.3 of Buyer’s amended and restated certificate of incorporation) | |
Number of Shares:
|
897,600 |
Signature Page to
Stock Purchase Agreement
Stock Purchase Agreement
Annex 1
XXXXX ACQUISITION COMPANY I, INC.
000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
September
22, 2009
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Xxxxx Acquisition Company I, Inc. Trust Account No. 530-065681
Gentlemen:
Xxxxx
Acquisition Company I, Inc. (the “Company”) is providing these irrevocable instructions
to you in connection with the above described Trust Account established in connection with and
pursuant to an Investment Management Trust Agreement, dated as of September 27, 2007 between the
Company and Continental Stock Transfer & Trust Company as
Trustee (the “Trust Agreement”).Upper
case terms used herein shall have the meanings ascribed to such terms
in the Trust Agreement.
In
the event (i) the Company delivers to you a Termination Letter substantially in the form
of Exhibit A to the Trust Agreement and (ii) the Consummation Date (as defined in such Exhibit A)
occurs, in addition to the other documents required to be delivered pursuant to Exhibit A of the
Trust Agreement, assuming you are the Trustee on such date, then, in consideration for the
electronic transfer of 897,600 shares of the Company’s common stock, using the Depository Trust
Company’s DWAC (Deposit/Withdrawal at Custodian) System, to an account specified by the Company, on
the Consummation Date you are irrevocably instructed to deliver as the initial distribution of
funds the sum of $8,769,552, which must be delivered in accordance with the bank wire instructions
provided to you below:
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Annex 1
The address for Westchester Capital Management, Inc. is 000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, XX
00000. The contact person for Westchester Capital Management, Inc. is Xxx Xxxxxx. He can be
reached at (000) 000-0000.
Kindly acknowledge where indicated below, your receipt and understanding of these instructions
and return a copy to Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, attention: Xxxxx X. Xxxxxx, facsimile
number (000) 000-0000.
A facsimile signed and electronically delivered copy of this letter shall be deemed an
original.
| Very truly yours, XXXXX ACQUISITION COMPANY I, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | CEO | |||
Acknowledged and Agreed:
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chairman, President, Secretary | |||
| WESTCHESTER CAPITAL MANAGEMENT, INC. |
||||
| By: |
|
|||
| Name: | ||||
| Title: | ||||
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