OPTION PURCHASE AGREEMENT
Exhibit
10.1
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
OPTION
PURCHASE AGREEMENT (this “Agreement”) made as of this 12th day of
October, 2009 between The Malibu Companies, LLC, a California limited liability
company (“Buyer”), and the signatory on the execution page hereof
(“Seller”).
WHEREAS,
Ideation Acquisition Corp. (the “Company”), a Delaware corporation, 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,
the Company consummated an initial public offering in November, 2007 in
connection with which it raised gross proceeds of approximately $80 million, a
significant portion of which was placed in a trust account pending the
consummation of a Business Combination on or prior to November 19, 2009;
and
WHEREAS,
pursuant to certain provisions in the Company’s Certificate of Incorporation, as
amended (the “Certificate of Incorporation”), a holder of Common Stock issued in
the Company’s initial public offering may, if it votes against the Business
Combination, demand that the Company redeem such Common Stock into cash
(“Redemption Rights”); and
WHEREAS,
the Business Combination will not be consummated if the holders of more than 30%
of the Common Stock vote against the Business Combination and request Redemption
Rights; and
WHEREAS,
Buyer has requested Seller, and Seller has agreed, to enter into this Agreement
with respect to the number of shares of common stock, par value $.0001 per share
(the “Common Stock”), of the Company set forth on the signature page hereof that
Seller beneficially owns (the “Shares”); and
WHEREAS,
Buyer has agreed to purchase from Seller an option to purchase Seller’s Common
Stock at any time prior to the Termination (as defined hereinafter) of this
Agreement; and
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. Option. Seller hereby sells to
Buyer and Buyer hereby purchases from Seller, concurrently with the execution of
this Agreement
***. Within two
(2) business days of this Agreement, Buyer shall pay to the order of Seller, by
wire transfer of immediately available funds pursuant to the instructions set
forth on Schedule 1 hereto, the aggregate Option Price.
1
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
2. Purchase. If the Buyer exercises the
Purchase Option in accordance with Section 5 then at the Closing (as defined
hereinafter), Seller shall sell to Buyer and Buyer shall purchase from Seller,
the Shares at a price (the “Purchase Price”) equal to ***.
3. ***
(a) ***
(b) ***
(c) Appointment
of Proxy.
(i) Subject to the limitations of Section
3(c)(ii), Seller hereby appoints *** as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to vote all of the Shares in
accordance with the terms of this Agreement. The proxy and power
of attorney granted herein shall be deemed to be coupled with an interest, shall
be irrevocable, and shall survive the
death, disability, incompetency, bankruptcy, insolvency or dissolution of
Seller. Furthermore, Seller will, from time to time as requested by Buyer,
execute and deliver such further instruments, ancillary agreements or other
documents or take such other actions as may be necessary or advisable to give
effect to, confirm, evidence or effectuate the purposes of the proxy granted by
this Section 3(c).
(ii) ***
(d) ***
4. Agreement to
Vote upon Exercise of the Purchase Option. Upon the exercise of the
Purchase Option ***:
Seller shall *** vote the Shares in favor of, or abstain
from voting upon, the proposals to be submitted (i) by written consent of the
stockholders of Company, or (ii) at the special (or annual) meeting, or
adjournment thereof (the “Meeting”), each as called for by the Company or the
consenting stockholders to vote upon (A) the Business Combination or (B) any
amendment to the Certificate of Incorporation, (1) ***, (2) shall vote in favor of, or abstain
from voting upon, the Business Combination and the other proposals set forth in
the Proxy Statement and/or any amendment to the Certificate of Incorporation,
and (3) ***. ***.
5. Exercise of
Purchase Option. Buyer shall exercise the
Purchase Option by delivering to Seller written notice, by electronic mail,
facsimile or otherwise, at the address set forth in Section 21, containing (i)
an acknowledgement of Buyer’s intent to exercise the Purchase Option and (ii)
whether Seller should vote the Shares in favor of, against or abstain from
voting upon, each proposal to be presented at the Meeting or upon any such
action by written consent. The exercisability of the Purchase Option
shall terminate in accordance with Section 11 hereof.
6. Closing
Matters.
2
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
(a) Closing. If Buyer exercises the
Purchase Option, the closing of the purchase and sale of the Shares (“Closing”)
will occur simultaneously with the delivery of the Shares pursuant to Section
6(b).
(b) Closing
Procedures. As soon as reasonably
practicable after the exercise of the Purchase Option ***. It shall be a condition to the
obligation of Buyer on the one hand and Seller on the other hand, to consummate
the transfer of the Shares contemplated hereunder that the other party’s
representations and warranties are true and correct as of the Closing 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.
7. ***
8. 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 the Company with the SEC, pursuant to
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the
Securities Act of 1933, as amended (the “Securities Act”) 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; No Proxy. Seller is the legal and
beneficial owner of the Shares, *** and will transfer to Buyer at the Closing
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 date of this Agreement and has the sole right to exercise Redemption Rights
and vote the Shares, whether at the Meeting or upon action by written consent,
with respect to all of the Shares. Except as provided by this
Agreement, Seller has not, directly or indirectly, granted any proxies or
entered into any voting trust or other agreement or arrangement with respect to
the voting, regardless of whether such vote would occur at the Meeting or upon
action by written consent, of any of the Shares.
3
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
(f) ***
(g) Non-Transfer
of Shares; Number of Shares. *** or a transfer to the Buyer or its
assigns, the Shares which are subject to the Purchase Option shall not be
transferred, sold, assigned or borrowed in any manner, whether by merger,
consolidation or otherwise by the operation of law, following the execution of
this Agreement.
(h) 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.
9. 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 (i) pay the Option Price, (ii) exercise the Purchase Option and
(iii) 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, other
than the representations and warranties set forth in this
Agreement.
(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 is
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.
4
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
10. Covenants.
(a) Seller. Seller
hereby covenants and agrees (i) *** (ii) Seller has provided
instructions to its broker substantially in the form of Exhibit A, which
shall not allow the Shares to be borrowed by, or lent to, any other person or
entity whatsoever, (iii) that except pursuant to the terms of this Agreement,
Seller shall not, directly or indirectly, (A) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any of the Shares, regardless of whether such vote would occur at the Meeting or
upon action by written consent or (B) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of, any of the Shares during the term of this
Agreement. Seller shall not seek or solicit any such assignment,
transfer, encumbrance or other disposition or any such contract, option or other
arrangement or understanding and agrees to notify Buyer promptly, and to provide
all details requested by Buyer, if Seller shall be approached or solicited,
directly or indirectly, by any person with respect to any of the foregoing, (iv)
*** (v) *** and (vi) ***.
(b) Buyer. Buyer
hereby covenants and agrees that Buyer shall comply with all filing obligations,
if any, under the Securities Act and the Exchange Act, with respect to the
Purchase Option, exercise of the Purchase Option, any subsequent ownership of
the Shares, or any other transactions contemplated by this
Agreement.
11. Termination. Notwithstanding any
provision in this Agreement to the contrary, this Agreement shall become null
and void and of no further force and effect upon the earlier to occur: (i)
termination by the written agreement of the parties to this Agreement or (ii)
the day on which the Company liquidates its trust account.
12. ***
13. 13D
Filing. Seller
acknowledges and understands that by virtue of this Purchase Option, or the
exercise of such Purchase Option, Buyer may be required to file a 13D with the
U.S. Securities and Exchange Commission (the “Filing”) and hereby consents to
any such Filing reasonably required in the opinion of Buyer and/or its
counsel. ***
14. 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.
15. 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 Delaware. 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, to the fullest
extent applicable, be brought and enforced first in the Delaware Chancery Court,
then to such other court in the State of Delaware as appropriate 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.
5
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
16. ***
17. Severability. If any term, provision or
covenant of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions and covenants of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated
18. Binding
Effect; Assignment and Transfer. 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 or transferred by Seller. Buyer may
assign, transfer or sell any of its rights under this Agreement at any time
prior to the exercise of the Purchase Option (collectively, a
“Transfer”). All rights and obligations of the Buyer shall terminate
upon any such Transfer and all such rights and obligations shall be assumed by
the transferee ***.
19. Headings. The descriptive headings of
the Sections hereof are inserted for convenience only and do not constitute a
part of this Agreement.
20. 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 not any provision hereof may be
changed or amended orally, but only by an agreement in writing signed by the
other party hereto.
21. Notice. All notices, statements or
other documents which are required or contemplated by this Agreement shall be in
writing and delivered personally or sent by first class registered or certified
mail, electronic mail, overnight courier service or facsimile transmission to
the address or fax number most recently provided to such Person or such other
address or fax number as may be designated in writing by such
Person. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered personally or if
sent by electronic mail or facsimile transmission, one (1) business day after
delivery to an overnight courier service or five (5) days after mailing if sent
by mail.
Address for Notice:
|
***
|
***
|
|
***
With a copy
to:
***
|
***
|
[Signature
Page Follows]
6
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
|
THE
MALIBU COMPANIES, LLC
By:__________________________
Name:
Title:
***
By:__________________________
Name:
Title:
|
|
Option
Price (per Share):
|
***
|
|
Purchase
Price (per Share)*:
|
$
|
|
Number
of Shares:
|
338,300
|
|
Aggregate
Option Price:
|
***
|
|
Aggregate
Purchase Price*:
|
$
|
* Only to
be completed in accordance with Section 2 in the event the Purchase Option is
exercised.
7
Schedule
1
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
***
8
Exhibit
A
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
***
1
Exhibit
B
CONFIDENTIAL
TREATMENT REQUESTED
WITH RESPECT
TO CERTAIN PORTIONS HEREOF
DENOTED WITH
“***”
***
1
