STOCK PURCHASE AGREEMENT
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Page
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1.
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Purchase
and Sale of Common Stock and Preferred Stock.
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1
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1.1.
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Sale
and Issuance of Common Stock and Preferred Stock.
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1
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1.2.
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Closing;
Delivery.
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1
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1.4
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Use
of Proceeds.
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3
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1.5
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Defined
Terms Used in this Agreement.
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3
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2.
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Representations
and Warranties of the Company.
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4
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2.1.
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Organization,
Good Standing, Corporate Power and Qualification.
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4
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2.2.
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Capitalization.
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4
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2.3.
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Subsidiaries.
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5
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2.4.
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Authorization.
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5
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2.5.
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Valid
Issuance of Shares.
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5
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2.6.
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Governmental
Consents and Filings.
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5
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2.7.
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Litigation.
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6
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2.8.
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Compliance
with Other Instruments.
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6
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2.9.
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Agreements;
Actions.
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6
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2.10.
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Certain
Transactions.
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7
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2.11.
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Rights
of Registration and Voting Rights.
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7
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2.12.
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Absence
of Liens.
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7
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2.13.
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Material
Liabilities.
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7
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2.14.
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Changes.
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8
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2.15.
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Tax
Returns and Payments.
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8
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2.16.
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Permits.
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8
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2.17.
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Corporate
Documents.
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8
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2.18.
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Disclosure.
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8
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3.
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Representations
and Warranties of the Purchasers.
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8
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3.1.
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Authorization.
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8
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3.2.
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Purchase
Entirely for Own Account.
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9
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3.3.
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Disclosure
of Information.
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9
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3.4.
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Restricted
Securities.
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9
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3.5.
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No
Public Market.
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9
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3.6.
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Legends.
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10
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3.7.
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Accredited
Investor.
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10
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3.8.
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Foreign
Investors.
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10
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3.9.
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No
General Solicitation.
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10
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3.10.
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Exculpation
Among Purchasers.
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10
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TABLE OF
CONTENTS
(continued)
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3.11.
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Residence.
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10
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4.
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Conditions
to the Purchasers’ Obligations at Closing.
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10
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4.1
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Closing
Under the Acquisition Agreement or Board Expense Funding.
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11
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4.2
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Representations
and Warranties.
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11
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4.3
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Performance.
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11
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4.4
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Compliance
Certificate.
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11
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4.5
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Qualifications.
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11
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4.7
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Stockholders
Agreement.
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11
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4.8
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Registration
Rights Agreement.
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11
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4.9
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Restated
Certificate.
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12
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4.10
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Proceedings
and Documents.
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12
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5.
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Conditions
of the Company’s Obligations at Closing.
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12
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5.1
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Representations
and Warranties.
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12
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5.2
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Performance.
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12
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5.3
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Qualifications.
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12
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5.4
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Registration
Rights Agreement.
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12
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5.5
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Stockholders
Agreement.
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12
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6.
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Miscellaneous.
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12
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6.1
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Survival
of Warranties.
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12
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6.2
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Successors
and Assigns.
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12
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6.3
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Governing
Law.
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13
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6.4
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Counterparts;
Facsimile.
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13
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6.5
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Titles
and Subtitles.
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13
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6.6
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Notices.
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13
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6.8
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Fees
and Expenses.
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14
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6.9
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Attorneys’
Fees.
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15
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6.10
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Amendments
and Waivers.
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15
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6.11
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Severability.
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15
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6.12
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Delays
or Omissions.
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15
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6.13
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Entire
Agreement.
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15
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6.14
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Dispute
Resolution.
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15
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6.15
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No
Commitment for Additional Financing.
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16
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6.16
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Waiver
of Conflicts.
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16
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6.17
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Equitable
Remedies.
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16
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ii
TABLE OF
CONTENTS
(continued)
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6.18
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Construction.
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16
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6.19
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Time
of Essence.
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17
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6.20
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Business
Plan and Budget.
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17
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iii
TABLE OF
CONTENTS
(continued)
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Exhibit
A -
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SCHEDULE
OF PURCHASERS
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Exhibit
B -
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FORM
OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
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Exhibit
C -
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DISCLOSURE
SCHEDULE
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Exhibit
D -
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FORM
OF STOCKHOLDERS AGREEMENT
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Exhibit
E -
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FORM
OF REGISTRATION RIGHTS
AGREEMENT
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THIS
STOCK PURCHASE AGREEMENT is made as of the 16th day of
October, 2009 by and among American Capital Acquisition Corporation, a Delaware
corporation (the “Company”), The Xxxxxxx
Xxxxxxxxx 2005 Grantor Retained Annuity Trust (“MKG”) and AmTrust Financial
Services, Inc., a Delaware corporation (“AFSI”, and together with MKG,
each a “Purchaser” and
together the “Purchasers”).
The
parties hereby agree as follows:
1. Purchase and Sale of Common
Stock and Preferred Stock.
1.1.
Sale and Issuance of
Common Stock and Preferred Stock.
(a) The
Company shall adopt and file with the Secretary of State of the State of
Delaware on or before the Initial Closing (as defined below) the Amended and
Restated Certificate of Incorporation in the form of Exhibit B attached to
this Agreement (the “Restated
Certificate”).
(b) Subject
to the terms and conditions of this Agreement, each Purchaser agrees to invest
in the Company in exchange for equity securities as provided herein an aggregate
amount (with respect to each Purchaser, its “Investment Commitment Amount”)
determined as follows: (i) (A) the aggregate amount of “Purchase
Price” (as defined in the Acquisition Agreement) that the Company is required to
pay from time to time under the Acquisition Agreement, including any adjustments
thereto plus
(B) the aggregate amount of expenses approved by the Board of Directors of the
Company to be paid with respect to the transactions contemplated by this
Agreement and the Acquisition Agreement multiplied by (ii)
such Purchaser’s “Commitment Percentage” set forth opposite such Purchaser’s
name on Exhibit
A attached hereto (with
respect to each Purchaser, its “Commitment
Percentage”). In exchange for any portion of its Investment
Commitment Amount, (i) MKG shall receive from the Company shares of Common Stock
of the Company, $0.01 par value per share (the “Common Stock”) at a price per
share of $1000 and (ii) AFSI shall receive from the Company shares of Series A
Preferred Stock of the Company, $0.01 par value per share (the “Preferred Stock”) at a price
per share of $1000. The shares of Common Stock and Preferred Stock
issued to the Purchasers pursuant to this Agreement (including any shares issued
at the Initial Closing and any additional shares of Common Stock and
Preferred Stock sold at subsequent Closings (the “Additional Shares”) shall be
referred to in this Agreement as the “Shares.”
1.2. Closing;
Delivery.
(a) The
purchase and sale of the aggregate number Shares contemplated to be sold under
Section 1.1(b) will take place on multiple occasions as provided in this
Agreement. The initial purchase and
sale of the Shares shall take place remotely via the exchange of documents and
signatures, at 10:00 a.m. on the earlier to occur of (i) the Closing Date under
the Acquisition Agreement and (ii) a date determined by the Board of Directors
of the Company on which Shares will be sold in order to raise funds necessary to
pay expenses as contemplated by Section 1.1(b)(ii)(B) (which time and place are
designated as the “Initial
Closing”). The term “Closing” shall apply to the
Initial Closing and each subsequent Closing held in accordance with this
Agreement unless otherwise specified. The Company shall only be
entitled to require a Closing, and each Purchaser shall only be obligated to
satisfy its obligations to purchase Shares at any Closing, (i) in the case of
the Company’s need to raise funds to satisfy any payment obligations described
in Section 1.1(b)(i)(A), when an actual need to make such payments arises under
the Acquisition Agreement and (ii) in the case of the Company’s need
to raise funds to satisfy any payment obligations described in Section
1.1(b)(ii)(B), upon the determination by the Board of Directors of the Company
that the Company shall make such expense payments.
(b) No
less than five (5) business days prior to the anticipated date of any Closing
(including the Initial Closing), the Company shall send a written notice to each
Purchaser (each, a “Closing
Notice”) that sets forth (i) the anticipated date of such Closing, (ii)
the purpose of such Closing (i.e., the Company’s intended use of proceeds raised
in connection with such Closing, which use must be contemplated by Section
1.1(b)(i) of this Agreement), (iii) the number of Shares that such
Purchaser shall be obligated to purchase at such Closing (determined in
accordance with such Purchaser’s Commitment Percentage), (iv) the aggregate
purchase price that such Purchaser is obligated to deliver to the Company in
exchange for such number of Shares, and (v) the wire instructions to which such
Purchaser shall deliver such aggregate purchase price. The Closing
Notice that the Company delivers to each Purchaser shall be accompanied by a
copy of the Closing Notice that is being delivered to the other Purchaser in
connection with such Closing.
(c) On
the fifth (5th)
Business Day following the delivery of any Closing Notice (or, if it is
determined that the applicable Closing will not occur on such fifth (5th)
Business Day as anticipated, on such later date that the Company communicates to
the Purchaser in the Closing Notice or any other written communication relating
thereto), each Purchaser shall be required to deliver to the Company's account
(or to such other account designated by the Company or its designee) the amount
set forth in the Closing Notice delivered to such Purchaser.
(d) Interest
will accrue at the Default Rate on any outstanding unpaid balance of any amount
required to be paid to the Company by a Purchaser under Section 1.2(c) from and
including the date such amount was due until the date of payment of such amount
by such Purchaser. The Company may pursue and enforce all of its
rights and remedies under applicable law against a Purchaser which fails to make
a payment when due, including but not limited to the commencement of a lawsuit
to collect the unpaid amount, interest, costs, and reimbursement (with interest
at the Default Rate) for any other damages suffered by the
Company. Without in any way limiting the generality of the foregoing,
if a Purchaser fails to make a payment required under a Closing Notice (which
failure is not cured within five (5) Business Days following the date such
payment was due), then the Company shall be entitled to sell the number of
Shares that the defaulting Purchaser was required to purchase to another Person
(for clarity, without regard to any preemptive rights set forth in the
Stockholders Agreement) including the other Purchaser, and, in its sole
discretion and without in any way reducing its remedies against the defaulting
Purchaser the Company shall no longer be obligated to sell any Shares to such
defaulting Purchaser, notwithstanding the commitments set forth in this Section
1.
2
(e) At
each Closing, the Company shall deliver to each Purchaser a certificate
representing the Shares being purchased by such Purchaser at such Closing
against payment of the purchase price therefor by wire transfer to a bank
account designated by the Company in the Closing Notice. Exhibit
A to this Agreement shall be
updated to reflect the number of Shares purchased and the aggregate purchase
price therefor at each Closing.
1.4 Use of
Proceeds. In accordance with the directions of the Company’s
Board of Directors, the Company will use the proceeds from the sale of the
Shares for the purposes described in Section 1.1(b)(i) and other general
corporate purposes (as directed by the Company’s Board of
Directors).
1.5 Defined Terms Used in this
Agreement. In addition to the terms defined above, the
following terms used in this Agreement shall be construed to have the meanings
set forth or referenced below.
“Acquisition Agreement” means
that certain Securities Purchase Agreement, dated as of October 16, 2009,
between the Company, GMAC Inc., GMAC Insurance Holdings Inc. and Motors
Insurance Corporation, as amended from time to time.
“Affiliate” means, with respect
to any specified Person, any other Person who, directly or indirectly, controls,
is controlled by, or is under common control with such Person, including,
without limitation, any general partner, managing member, officer or director of
such Person or any venture capital fund now or hereafter existing that is
controlled by one or more general partners or managing members of, or shares the
same management company with, such Person.
“Business Day” ” means any day
other than a Saturday, Sunday or a day on which banks in New York City are
authorized by law or executive order to be closed.
“Code” means the Internal
Revenue Code of 1986, as amended.
“Default Rate” means with
respect to any period the lesser of (a) a variable rate equal to the Prime
Rate as published in the Wall
Street Journal in effect, from time to time, during such period plus 6%
or (b) the highest interest rate for such period permitted by applicable
law.
“Knowledge,” including the
phrase “to the Company’s knowledge,” shall mean the actual knowledge of the
President, Chief Executive Officer or Chief Financial officer
of officers of the Company.
“Material Adverse Effect” means
a material adverse effect on the business, assets (including intangible assets),
liabilities, financial condition, property, or results of operations of the
Company.
3
“Person” means any individual,
corporation, partnership, trust, limited liability company, association or other
entity.
“Registration Rights Agreement”
means the agreement among the Company and the Purchasers and other holders of
the Company’s equity securities from time to time, dated as of the date of the
Initial Closing, in the form of Exhibit E attached to
this Agreement, as amended from time to time.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Stockholders Agreement” means
the agreement between the Company, the Purchasers and other holders of the
Company’s equity securities from time to time, to be dated as of the date of the
Initial Closing, in the form of Exhibit D attached to
this Agreement, as amended from time to time.
“Transaction Agreements” means
this Agreement, the Registration Rights Agreement, the Stockholders Agreement
and the Amended and Restated Certificate of Incorporation of the Company.
2. Representations and
Warranties of the Company. The Company hereby represents and
warrants to each Purchaser that, except as set forth on the Disclosure Schedule
attached as Exhibit C to this Agreement, which exceptions shall be deemed to be
part of the representations and warranties made hereunder, the following
representations are true and complete as of the date of each Closing, except as
otherwise indicated. The Disclosure Schedule shall be arranged in
sections corresponding to the numbered and lettered sections and subsections
contained in this Section 2,
and the disclosures in any section or subsection of the Disclosure Schedule
shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from
a reading of the disclosure that such disclosure is applicable to such other
sections and subsections.
For
purposes of these representations and warranties, the term “the Company” shall
not include any subsidiaries of the Company, unless otherwise noted
herein.
2.1.
Organization,
Good Standing, Corporate Power and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as presently conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the failure to so qualify would
have a Material Adverse Effect.
2.2.
Capitalization. The
authorized capital of the Company consists, immediately prior to the Initial
Closing, of 300,000 shares of Common Stock, 4 shares of which are issued and
outstanding immediately prior to the Initial Closing and 71,000 shares of
Preferred Stock, 0 shares of which are issued and outstanding immediately prior
to the Initial Closing. All of the outstanding shares of Common Stock
and Preferred Stock have been duly authorized, are fully paid and nonassessable
and were issued in compliance with all applicable federal and state securities
laws.
4
(a) Except
for the rights and obligations of the Purchasers to purchase Additional Shares
hereunder, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal or similar rights)
or agreements, orally or in writing, to purchase or acquire from the Company any
shares of Common Stock or Preferred Stock or any other equity security of the
Company, or any securities convertible into or exchangeable for shares of Common
Stock or Preferred Stock.
2.3. Subsidiaries. Prior
to the Closing under the Acquisition Agreement, the Company does not currently
own or control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, limited liability company, association, or
other business entity. The Company is not a participant in any joint
venture, partnership or similar arrangement.
2.4. Authorization. All
corporate action required to be taken by the Company’s Board of Directors and
stockholders in order to authorize the Company to enter into the Transaction
Agreements, and to issue the Shares at the Closing, has been taken or will be
taken prior to the Closing. All action on the part of the officers of
the Company necessary for the execution and delivery of the Transaction
Agreements, the performance of all obligations of the Company under the
Transaction Agreements to be performed as of the Closing, and the issuance and
delivery of the Shares has been taken or will be taken prior to the
Closing. The Transaction Agreements, when executed and delivered by
the Company, shall constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other laws of general
application relating to or affecting the enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (iii) to
the extent the indemnification provisions contained in the Registration Rights
Agreement and the Stockholders Agreement may be limited by applicable federal or
state securities laws.
2.5. Valid Issuance
of Shares. The
Shares, when issued, sold and delivered in accordance with the terms and for the
consideration set forth in this Agreement, will be validly issued, fully paid
and nonassessable and free of restrictions on transfer other than restrictions
on transfer under the Transaction Agreements, applicable state and federal
securities laws and liens or encumbrances created by or imposed by a
Purchaser. Assuming the accuracy of the representations of the
Purchasers in Section
3 of this Agreement and subject to the filings described in Section 2.6(ii)
below, the Shares will be issued in compliance with all applicable federal and
state securities laws.
2.6. Governmental Consents and
Filings. Assuming
the accuracy of the representations made by the Purchasers in Section 3 of this
Agreement, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority is required on the part of the Company in
connection with the consummation of the transactions contemplated by this
Agreement, except for (i) the filing of the Restated Certificate, which will
have been filed as of the Initial Closing, and (ii) filings pursuant to
Regulation D of the Securities Act, and applicable state securities laws,
which have been made or will be made in a timely manner.
5
2.7. Litigation. There
is no claim, action, suit, proceeding, arbitration, complaint, charge or
investigation pending or to the Company’s knowledge, currently threatened (i)
against the Company or any officer or director; (ii) to the Company’s
knowledge, that questions the validity of the Transaction Agreements or the
right of the Company to enter into them, or to consummate the transactions
contemplated by the Transaction Agreements, or (iii) to the Company’s knowledge,
that would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. Neither the Company nor, to the
Company’s knowledge, any of its officers or directors is a party or is named as
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality (in the case of officers or
directors, such as would affect the Company). There is no action,
suit, proceeding or investigation by the Company pending or which the Company
intends to initiate.
2.8. Compliance with Other
Instruments. The
Company is not in violation or default (i) of any provisions of its Restated
Certificate or Bylaws, (ii) of any instrument, judgment, order, writ or decree,
(iii) under any note, indenture or mortgage, or (iv) under any lease, agreement,
contract or purchase order to which it is a party or by which it is bound that
is required to be listed on the Disclosure Schedule, or, to its knowledge,
of any provision of federal or state statute, rule or regulation applicable to
the Company, the violation of which would have a Material Adverse
Effect. The execution, delivery and performance of the Transaction
Agreements and the consummation of the transactions contemplated by the
Transaction Agreements will not result in any such violation or be in conflict
with or constitute, with or without the passage of time and giving of notice,
either (i) a default under any such provision, instrument, judgment, order,
writ, decree, contract or agreement or (ii) an event which results in the
creation of any lien, charge or encumbrance upon any assets of the Company or
the suspension, revocation, forfeiture, or nonrenewal of any material permit or
license applicable to the Company.
2.9. Agreements;
Actions. Except
for the Transaction Agreements, the Acquisition Agreement or any agreements
contemplated by the Acquisition Agreement, there are no material agreements,
understandings, instruments, contracts or proposed transactions to which the
Company is a party or by which it is bound.
(a) The
Company has not (i) declared or paid any dividends, or authorized or made
any distribution upon or with respect to any class or series of its capital
stock, (ii) other than pursuant to the Acquisition Agreement, the other
Transaction Agreements or any agreements contemplated thereby, incurred any
indebtedness for money borrowed or incurred any other material liabilities,
(iii) made any loans or advances to any Person, other than ordinary
advances for travel expenses, or (iv) sold, exchanged or otherwise disposed
of any of its assets or rights, other than the sale of its inventory in the
ordinary course of business. For the purposes of subsections (a) and (b) of this
Section
2.9, all indebtedness, liabilities, agreements,
understandings, instruments, contracts and proposed transactions involving the
same Person (including Persons the Company has reason to believe are affiliated
with each other) shall be aggregated for the purpose of meeting the individual
minimum dollar amounts of such subsection.
6
(b) The
Company is not a guarantor or indemnitor of any indebtedness of any other
Person.
2.10. Certain
Transactions.
(a) Other
than (i) the Acquisition Agreement and the Transaction Agreements, (ii) standard
employee benefits generally made available to all employees, (iii) standard
director and officer indemnification agreements approved by the Board of
Directors, (iv) the purchase of shares of the Company’s capital stock and the
issuance of options to purchase shares of the Company’s Common Stock, and (v)
the agreements set forth on Schedule 2.10 of the Disclosure Schedule, there are
no agreements, understandings or proposed transactions between the Company and
any of its officers, directors, or consultants, or any Affiliate
thereof.
(b) The
Company is not indebted, directly or indirectly, to any of its directors,
officers or employees or to their respective spouses or children or to any
Affiliate of any of the foregoing, other than in connection with expenses or
advances of expenses incurred in the ordinary course of business or employee
relocation expenses and for other customary employee benefits made generally
available to all employees.
2.11. Rights of Registration and
Voting Rights. Except
as provided in the Registration Rights Agreement, the Company is not under any
obligation to register under the Securities Act any of its currently outstanding
securities or any securities issuable upon exercise or conversion of its
currently outstanding securities. To the Company’s knowledge, except
as contemplated in the Stockholders Agreement, no stockholder of the Company has
entered into any agreements with respect to the voting of capital shares of the
Company.
2.12. Absence of
Liens. The
property and assets that the Company owns are free and clear of all mortgages,
deeds of trust, liens, loans and encumbrances, except for statutory liens for
the payment of current taxes that are not yet delinquent and encumbrances and
liens that arise in the ordinary course of business and do not materially impair
the Company’s ownership or use of such property or
assets.
2.13. Material
Liabilities. The
Company has no liability or obligation, absolute or contingent (individually or
in the aggregate), except (i) obligations and liabilities incurred after the
date of incorporation in the ordinary course of business that are not material,
individually or in the aggregate, (ii) obligations under contracts made in the
ordinary course of business that would not be required to be reflected in
financial statements prepared in accordance with generally accepted accounting
principles and (iii) obligations under the Acquisition Agreement and the
Transaction Agreements.
2.14. Changes. To
the Company’s knowledge, there have been no events or circumstances of any kind
that have had or could reasonably be expected to result in a Material Adverse
Effect.
7
2.15. Tax Returns and
Payments. There
are no federal, state, county, local or foreign taxes dues and payable by the
Company that have not been timely paid. There are no accrued and
unpaid federal, state, country, local or foreign taxes of the Company that are
due, whether or not assessed or disputed. There have been no
examinations or audits of any tax returns or reports by any applicable federal,
state, local or foreign governmental agency. The Company has duly and
timely filed all federal, state, county, local and foreign tax returns required
to have been filed by it and there are in effect no waivers of applicable
statutes of limitations with respect to taxes for any year.
2.16. Permits. Other
than those regulatory notices, approvals and consents necessary for the Company
to consummate the transactions contemplated by the Acquisition Agreement, the
Company has all franchises, permits, licenses and any similar authority
necessary for the conduct of its business, the lack of which could reasonably be
expected to have a Material Adverse Effect. The Company is not in
default in any material respect under any of such franchises, permits, licenses
or other similar authority.
2.17. Corporate
Documents. The
Restated Certificate and Bylaws of the Company are in the form provided to the
Purchasers. The copy of the minute books of the Company provided to
the Purchasers contains minutes of all meetings of directors and stockholders
and all actions by written consent without a meeting by the directors and
stockholders since the date of incorporation and accurately reflects in all
material respects all actions by the directors (and any committee of directors)
and stockholders with respect to all transactions referred to in such
minutes.
2.18. Disclosure. The
Company has made available to the Purchasers all the information reasonably
available to the Company that the Purchasers have requested for deciding whether
to acquire the Shares. No representation
or warranty of the Company contained in this Agreement, as qualified by the
Disclosure Schedule, and no certificate furnished or to be furnished to
Purchasers at the Closing contains any untrue statement of a material fact or ,
to the Company’s knowledge, omits to state a material fact necessary in order to
make the statements contained herein or therein not misleading in light of the
circumstances under which they were made. It is understood that this
representation is qualified by the fact that the Company has not delivered to
the Purchasers, and has not been requested to deliver, a private placement or
similar memorandum or any written disclosure of the types of information
customarily furnished to purchasers of securities.
3. Representations and
Warranties of the Purchasers. Each
Purchaser hereby represents and warrants to the Company, severally and not
jointly, that:
3.1. Authorization. The
Purchaser has full power and authority to enter into the Transaction
Agreements. The Transaction Agreements to which the Purchaser is a
party, when executed and delivered by the Purchaser, will constitute valid and
legally binding obligations of the Purchaser, enforceable in accordance with
their terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors’ rights generally, and as limited
by laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies, or (b) to the extent the indemnification
provisions contained in the Registration Rights Agreement may be limited by
applicable federal or state securities laws.
8
3.2. Purchase Entirely for Own
Account. This
Agreement is made with the Purchaser in reliance upon the Purchaser’s
representation to the Company, which by the Purchaser’s execution of this
Agreement, the Purchaser hereby confirms, that the Shares to be acquired by the
Purchaser will be acquired for investment for the Purchaser’s own account, not
as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By
executing this Agreement, the Purchaser further represents that the Purchaser
does not presently have any contract, undertaking, agreement or arrangement with
any Person to sell, transfer or grant participations to such Person or to any
third Person, with respect to any of the Shares, except as provided in the
Transaction Agreements. The Purchaser has not been formed for the specific
purpose of acquiring the Shares.
3.3. Disclosure of
Information. The
Purchaser has had an opportunity to discuss the Company’s business, management,
financial affairs and the terms and conditions of the offering of the Shares
with the Company’s management and has had an opportunity to review the Company’s
facilities. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 2 of this
Agreement or the right of the Purchasers to rely thereon.
3.4. Restricted
Securities. The
Purchaser understands that the Shares have not been, and will not be, registered
under the Securities Act, by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Purchaser’s representations as expressed herein. The Purchaser
understands that the Shares are “restricted securities” under applicable U.S.
federal and state securities laws and that, pursuant to these laws, the
Purchaser must hold the Shares indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges
that the Company has no obligation to register or qualify the Shares, or the
Common Stock into which any Preferred Stock may be converted, for resale except
as set forth in the Registration Rights Agreement. The Purchaser
further acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Shares, and
on requirements relating to the Company which are outside of the Purchaser’s
control, and which the Company is under no obligation and may not be able to
satisfy.
3.5. No Public
Market. The
Purchaser understands that no public market now exists for the Shares, and that
the Company has made no assurances that a public market will ever exist for the
Shares.
3.6. Legends. The
Purchaser understands that the Shares and any securities issued in respect of or
exchange for the Shares, may bear one or all of the following
legends:
9
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.”
(b) Any
legend set forth in, or required by, the other Transaction
Agreements.
(c) Any
legend required by the securities laws of any state to the extent such laws are
applicable to the Shares represented by the certificate so
legended.
3.7. Accredited
Investor. The
Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act.
3.8. Foreign
Investors. If
the Purchaser is not a United States person (as defined by
Section 7701(a)(30) of the Code), the Purchaser hereby represents that it
has satisfied itself as to the full observance of the laws of its jurisdiction
in connection with any invitation to subscribe for the Shares or any use of this
Agreement, including (i) the legal requirements within its jurisdiction for
the purchase of the Shares, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that
may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the Shares. The Purchaser’s subscription and
payment for and continued beneficial ownership of the Shares will not violate
any applicable securities or other laws of the Purchaser’s
jurisdiction.
3.9. No General
Solicitation. Neither
the Purchaser, nor any of its officers, directors, employees, agents,
stockholders or partners has either directly or indirectly, including through a
broker or finder (a) engaged in any general solicitation, or
(b) published any advertisement in connection with the offer and sale of
the Shares.
3.10. Exculpation Among
Purchasers. The
Purchaser acknowledges that it is not relying upon any Person, other than the
Company and its officers and directors, in making its investment or decision to
invest in the Company. The Purchaser agrees that neither any
Purchaser nor the respective controlling Persons, officers, directors, partners,
agents, or employees of any Purchaser shall be liable to any other Purchaser for
any action heretofore taken or omitted to be taken by any of them in connection
with the purchase of the Shares.
3.11. Residence. The
office or offices of the Purchaser in which its principal place of business is
identified in the address or addresses of the Purchaser set forth on Exhibit
A.
4. Conditions to the
Purchasers’ Obligations at Closing. The
obligations of each Purchaser to purchase Shares at the Initial Closing or any
subsequent Closing are subject to the fulfillment, on or before such Closing, of
each of the following conditions, unless otherwise waived:
10
4.1 Closing Under the
Acquisition Agreement or Board Expense Funding. The
Closing under the Acquisition Agreement shall have occurred or the Board of
Directors of the Company shall have determined to have a Closing in order to
raise funds to pay expenses as contemplated by Section
1.1(b)(i)(B).
4.2 Representations and
Warranties. The
representations and warranties of the Company contained in Section 2 shall be true and
correct in all respects as of such Closing.
4.3 Performance. The
Company shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by the Company on or before such
Closing.
4.4 Compliance
Certificate. The
President of the Company shall deliver to the Purchasers at such Closing a
certificate certifying that the conditions specified in Sections 4.2 and 4.3
have been fulfilled.
4.5 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Shares pursuant to this
Agreement shall be obtained and effective as of such Closing.
4.6 Board of
Directors. As
of the Initial Closing, the authorized size of the Board shall be three (3), and
the Board shall be comprised of two (2) individuals designated by MKG and one
(1) individual designated by AFSI; provided that this Section 4.6 may not be
relied upon by either Purchaser if the condition is not satisfied solely because
such Purchaser failed to appoint a designee to the Board or such Purchaser’s
designee to the Board is no longer a member as a result of voluntary
resignation or otherwise.
4.7 Stockholders
Agreement. The
Company and each director designated by a Purchaser (other than the Purchaser
relying upon this condition to excuse such Purchaser’s performance hereunder)
and each other Purchaser shall have executed and delivered the Stockholders
Agreement, and the Stockholders Agreement shall be in full force and effect as
of the Closing.
4.8 Registration Rights
Agreement. The
Company and each
Purchaser (other than the Purchaser relying upon this condition to excuse such
Purchaser’s performance hereunder) and the other stockholders of the Company
named as parties thereto shall have executed and delivered the Registration
Rights Agreement, and the Registration Rights Agreement shall be in full force
and effect as of the Closing.
4.9 Restated
Certificate. The
Company shall have filed the Restated Certificate with the Secretary of State of
Delaware on or prior to the Closing, which shall continue to be in full force
and effect as of the Closing.
11
4.10 Proceedings and
Documents. All
corporate and other proceedings in connection with the transactions contemplated
at the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to each Purchaser, and each Purchaser (or its
counsel) shall have received all such counterpart original and certified or
other copies of such documents as reasonably requested. Such
documents may include good standing certificates.
5. Conditions of the Company’s
Obligations at Closing. The
obligations of the Company to sell Shares to the Purchasers at the Initial
Closing or any subsequent Closing are subject to the fulfillment, on or before
the Closing, of each of the following conditions, unless otherwise
waived:
5.1 Representations and
Warranties. The
representations and warranties of each Purchaser contained in Section 3 shall
be true and correct in all respects as of such Closing.
5.2 Performance. The
Purchasers shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by them on or before such Closing.
5.3 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Share pursuant to this
Agreement shall be obtained and effective as of the Closing.
5.4 Registration Rights
Agreement. Each
Purchaser shall have executed and delivered the Registration Rights
Agreement.
5.5 Stockholders
Agreement. Each
Purchaser and the other stockholders of the Company named as parties thereto
shall have executed and delivered the Stockholder Agreement.
6. Miscellaneous.
6.1 Survival of
Warranties. Unless
otherwise set forth in this Agreement, the representations and warranties of the
Company and the Purchasers contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and each Closing and shall
in no way be affected by any investigation or knowledge of the subject matter
thereof made by or on behalf of the Purchasers or the Company.
6.2 Successors and
Assigns. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this
Agreement.
12
6.3 Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
6.4 Counterparts;
Facsimile. This
Agreement may be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Titles and
Subtitles. The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
6.6 Notices. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, or sent by reputable overnight courier service (charges
prepaid) or sent by telecopy to the Company at the address set forth below and
to any other recipient at the address indicated on Schedule A
attached hereto or at such address or to the attention of such other Person as
the recipient party has specified by prior written notice to the sending party,
or by electronic transmission to the Email address set forth
below. Notices shall be deemed to have been given hereunder when
delivered personally, when answer back is confirmed and sent by telecopy, and
one day after deposit with a reputable overnight courier service.
|
(i)
|
If
to the Company to:
|
American Capital Acquisition
Corporation
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx
Xxxxxxxxx
Tel: 000-000-0000
Fax:
000-000-0000
Email:
|
(ii)
|
If
to the Purchasers to:
|
Xxxxxxx Xxxxxxxxx,
Trustee
Xxxxxxx Xxxxxxxxx 2005
G.R.A.T.
00 Xxxxxx Xxxx, 0xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
Fax:
000-000-0000
Email:
13
Xxxxxxx Xxxxx
General Counsel
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
Email: xxxxxx@xxxxxxxxxxxx.xxx
With a
concurrent copy, which shall not constitute notice, to:
Xxxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxx & Dodge
LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000.000.0000
Fax:
000.000.0000
Email: xxxxxxxxxxxx@xxxxxxx.xxx
Xxxxx Xxxxxx
London Xxxxxxx LLP
00 Xxxxxx Xxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 212-972-1030
Email: XXxxxxx@xxxxxxxxxxxxx.xxx
6.7 No Finder’s
Fees. Each
party represents that it neither is nor will be obligated for any finder’s fee
or commission in connection with the transactions contemplated hereby or by the
Acquisition Agreement. Each Purchaser agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finder’s or broker’s fee arising out of this transaction
(and the costs and expenses of defending against such liability or asserted
liability) for which each Purchaser or any of its officers, employees, or
representatives is responsible. The Company agrees to indemnify and
hold harmless each Purchaser from any liability for any commission or
compensation in the nature of a finder’s or broker’s fee arising out of
this transaction (and the costs and expenses of defending against such liability
or asserted liability) for which the Company or any of its officers, employees
or representatives is responsible.
6.8 Fees and
Expenses. The
Company shall pay the reasonable and documented fees and expenses of the
Purchasers in connection with the negotiation and preparation of the Acquisition
Agreement, the Transaction Documents (as defined in the Acquisition Agreement),
this Agreement and the other Transaction Agreements, including without
limitation (i) all the legal expenses of MKG, AFSI and the special committee of
AFSI’s Board of Directors tasked with reviewing the transactions contemplated by
the agreements referenced above (the “Special Committee”), (ii) all fees paid to
FBR Capital Markets, the investment banking firm engaged by the Special
Committee and (iii) the due diligence related expenses incurred by MKG in
relation to the transactions contemplated by the Acquisition
Agreement.
14
6.9 Attorneys’
Fees. If
any action at law or in equity (including arbitration) is necessary to enforce
or interpret the terms of any of the Transaction Agreements, the prevailing
party shall be entitled to reasonable attorneys’ fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
6.10 Amendments and
Waivers. Any
term of this Agreement may be amended, terminated or waived only with the
written consent of the Company and the Purchaser against which the enforcement
is such amendment, waiver or termination is sought. Any amendment or
waiver effected in accordance with this Section 6.10
shall be binding upon consenting Purchaser(s) and each transferee of such
Purchaser’s Shares and the Company.
6.11 Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
6.12 Delays or
Omissions. No
delay or omission to exercise any right, power or remedy accruing to any party
under this Agreement, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
6.13 Entire
Agreement. This
Agreement (including the Exhibits hereto), the Restated Certificate and the
other Transaction Agreements constitute the full and entire understanding and
agreement between the parties with respect to the subject matter hereof, and any
other written or oral agreement relating to the subject matter hereof existing
between the parties are expressly canceled.
6.14 Dispute
Resolution. The
parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of
the federal and state courts located within the geographic boundaries
of the State of New York for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement, (b) agree not to
commence any suit, action or other proceeding arising out of or based upon this
Agreement except in the federal and state courts located within the geographic
boundaries of the State of New York, and (c) hereby waive, and agree not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such
court.
15
6.15 No Commitment for Additional
Financing. The
Company acknowledges and agrees that no Purchaser has made any representation,
undertaking, commitment or agreement to provide or assist the Company in
obtaining any financing, investment or other assistance, other than the purchase
of the Shares as set forth in Section 1 of this
Agreement and subject to the conditions set forth herein and other than with
respect to any guaranty that a Purchaser expressly executes and delivers in
connection with the Acquisition Agreement. Each Purchaser shall have
the right, in it sole and absolute discretion, to refuse or decline to
participate in any other financing of or investment in the Company, and shall
have no obligation to assist or cooperate with the Company in obtaining any
financing, investment or other assistance.
6.16 Waiver of
Conflicts. Each
party to this Agreement acknowledges that Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP,
counsel for the Company, has in the past performed and may continue to perform
legal services for the Purchasers in matters unrelated to the transactions
described in this Agreement. Accordingly, each party to this Agreement
hereby (a) acknowledges that they have had an opportunity to ask for
information relevant to this disclosure; and (b) gives its informed consent
to Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP’s representation of the Purchasers in
such unrelated matters and to Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP’s
representation of the Company in connection with this Agreement and the
transactions contemplated hereby.
6.17 Equitable
Remedies. The
parties hereto agree that irreparable harm would occur in the event that any of
the agreements and provisions of this Agreement were not performed fully by the
parties hereto in accordance with their specific terms or conditions or were
otherwise breached, and that money damages are an inadequate remedy for breach
of this Agreement because of the difficulty of ascertaining and quantifying the
amount of damage that will be suffered by the parties in the event that this
Agreement is not performed in accordance with its terms or conditions or is
otherwise breached. It is accordingly hereby agreed that the parties
shall be entitled to an injunction or injunctions to restrain, without the
necessity of posting a bond, enjoin and prevent breaches of this Agreement by
the other parties and to enforce specifically such terms and provisions of this
Agreement, such remedy being in addition to and not in lieu of, any other rights
and remedies to which the parties may be entitled to at law or in
equity.
6.18 Construction. This
Agreement has been negotiated by each Purchaser and the Company and their
respective legal counsel, and legal or equitable principles that might require
the construction of this Agreement or any provision of this Agreement against
the party drafting this Agreement shall not apply in any construction or
interpretation of this Agreement.
16
6.19 Time of
Essence. With
regard to all dates and time periods set forth or referred to in this Agreement,
time is of the essence.
6.20 Business Plan and
Budget. The
Purchasers and the Company agree to use best efforts to prepare and adopt a
three (3) year budget and business plan with respect to the Company as soon as
practicable, and preferably prior to the Initial Closing. Notwithstanding the
foregoing, the Purchasers and the Company agree that no party shall be entitled
to be excused from its obligations under this Agreement under Section 4.2 or
Section 5.2 because of another party’s breach of this Section 6.20.
* * * * *
17
IN
WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as of
the date first written above.
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COMPANY:
|
||
|
AMERICAN
CAPITAL ACQUISITION
CORPORATION
|
||
|
By:
|
/S/ XXXXX XXXXXXXXX
|
|
|
Name:
|
XXXXX XXXXXXXXX
|
|
|
(print)
|
||
|
Title:
|
PRESIDENT
|
|
|
PURCHASERS:
|
||
|
THE
XXXXXXX XXXXXXXXX 2005
GRANTOR
RETAINED ANNUITY
TRUST
|
||
|
By:
|
/S/ XXXXXXX XXXXXXXXX
|
|
|
Name:
|
XXXXXXX XXXXXXXXX
|
|
|
(print)
|
||
|
Title:
|
TRUSTEE
|
|
|
AMTRUST
FINANCIAL SERVICES,
INC.
|
||
|
By:
|
/S/XXXXX XXXXXXX
|
|
|
Name:
|
XXXXX XXXXXXX
|
|
|
(print)
|
||
|
Title:
|
CHIEF EXECUTIVE
OFFICER
|
|
SIGNATURE
PAGE TO PURCHASE AGREEMENT
EXHIBITS
|
|
Exhibit A
-
|
SCHEDULE OF
PURCHASERS
|
|
|
Exhibit B
-
|
FORM OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
|
|
|
Exhibit C
-
|
DISCLOSURE
SCHEDULE
|
|
|
Exhibit D
-
|
FORM OF STOCKHOLDERS
AGREEMENT
|
|
|
Exhibit E
-
|
FORM OF REGISTRATION RIGHTS
AGREEMENT
|
EXHIBIT
A
SCHEDULE
OF PURCHASERS
|
PURCHASER
|
COMMITMENT
PERCENTAGE
|
ADDRESS
|
|||
|
The
Xxxxxxx Xxxxxxxxx 2005 Grantor Retained Annuity Trust
|
75 | % |
Xxxxxxx
Xxxxxxxxx, Trustee
Xxxxxxx
Xxxxxxxxx 2005 G.R.A.T.
00
Xxxxxx Xxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
| 25 | % |
00
Xxxxxx Xxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Phone:
000.000.0000
Fax:
000.000.0000
|
|||
SHARES
PURCHASED
(Last
Updated: ____, 2009)
|
PURCHASER
|
INITIAL CLOSING
|
SUBSEQUENT CLOSINGS
|
||
|
The
Xxxxxxx Xxxxxxxxx 2005 Grantor Retained Annuity Trust
|
Date:______
Number
of Shares of Common Stock:_____
Aggregate Purchase
Price:____
|
1)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
2)
[insert
date]
Number
of Shares of Common Stock:_____
Aggregate
Purchase Price:____
|
||
|
|
Date:_____
Number
of Shares of Preferred Stock:_____
Aggregate Purchase
Price:____
|
1)
[insert
date]
Number
of Shares of Preferred Stock:_____
Aggregate
Purchase Price:____
2)
[insert
date]
Number
of Shares of Preferred Stock:_____
Aggregate
Purchase
Price:____
|
EXHIBIT
B
FORM
OF AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
EXHIBIT
C
DISCLOSURE
SCHEDULE
Schedule
2.10: None
EXHIBIT
D
FORM
OF STOCKHOLDERS AGREEMENT
EXHIBIT
E
FORM
OF REGISTRATION RIGHTS AGREEMENT
