AGREEMENT
Exhibit 10.9
AGREEMENT
THIS AGREEMENT (this “Agreement”), dated as of September 22, 2009, is made by and among XXXXX
ACQUISITION COMPANY I, INC., a Delaware corporation (“HACI”), and VICTORY PARK CAPITAL ADVISORS,
LLC, on behalf of one or more entities for which it acts as investment manager (“Victory Park”).
WHEREAS, HACI 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”);
WHEREAS, HACI 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 maintained by Continental Stock Transfer and Trust Company pending
the consummation of a Business Combination, or the dissolution and liquidation of HACI 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 HACI stockholders);
WHEREAS, HACI has entered into that certain Purchase and IPO Reorganization Agreement dated as
of August 2, 2009 (the “Acquisition Agreement”), 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;
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 which are
present and entitled to vote at the meeting called to approve the Acquisition;
WHEREAS, pursuant to certain provisions in HACI’s certificate of incorporation, a holder of
shares of HACI’s common stock issued in the IPO may, if it votes against the Acquisition, demand
that HACI convert such common shares into cash (“Conversion Rights”);
WHEREAS, the Acquisition cannot be consummated if holders of 30% or more of the HACI common
stock issued in the IPO exercise their Conversion Rights.
NOW, THEREFORE, the undersigned parties agree as follows:
1. Agreement to Make Purchases of HACI Common Stock. Victory Park (and any other
purchasers acceptable to Victory Park and HACI (collectively, “VP Purchasers”) agrees to use its
reasonable best efforts to make simultaneous privately negotiated purchases of up to approximately
4.5 million shares of HACI common stock (with the exact number to be specified by HACI pursuant to
a Purchase Directive) prior to September 25, 2009, provided that (i) the VP
Purchasers will not execute any purchases until directed via electronic mail sent by HACI to
xxxxxxxx@xxxxxxxxxxx.xxx (the “Purchase Directive”) (which such Purchase Directive will include the
price per share of such purchases and the aggregate amount of shares up to which the VP Purchasers
may purchase) and (ii) HACI agrees to enter into the form of forward contract (“Forward Contract
Arrangement”) attached hereto as Annex A with the relevant VP Purchaser for the purchase by
HACI of the shares of HACI common stock purchased in accordance with a Purchase Directive.
2. Fees. In addition, in exchange for its services in aggregating blocks of shares
for purchase by the VP Purchasers from HACI stockholders, as set forth in Section 1 above, that
have indicated an intention to convert their shares of Buyer common stock and or vote against the
Acquisition, Buyer will pay to the VP Purchasers a fee equal to one percent of the Aggregate
Purchase Price (as defined in the Forward Contract Agreement) at Closing (as defined in the Forward
Contract Agreement) with respect to shares of common stock purchased in accordance with a Purchase
Directive.
3. Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement, including, without limitation, legal fees and expenses and all
other out-of-pocket costs and expenses of third parties incurred by a party in connection with the
negotiation and effectuation of the terms and conditions of this Agreement and the transactions
contemplated thereby, shall be the obligation of the respective party incurring such fees and
expenses; provided that HACI shall pay up to $25,000 of the documented costs and expenses incurred
by Victory Park in connection with the transactions contemplated by this Agreement (the
“Reimbursable Expenses”).
4. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
5. Governing Law; Jurisdiction. 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. 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 and irrevocably waive trial by jury.
[Signature Page Follows]
2
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. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
| VICTORY PARK CAPITAL ADVISORS, LLC |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | General Counsel | |||
Signature Page to
Agreement
ANNEX A
FORM OF FORWARD CONTRACT
(attached)
Annex A
