CONTRIBUTION AGREEMENT
Exhibit 10.12
This Contribution Agreement (this “Agreement”), dated as of October 8, 2010, is made and
entered into by and between Xxxxx Acquisition Company II, Inc. (the “Company”) and HH-HACII, L.P.,
a Delaware limited partnership, (the “Sponsor”).
WHEREAS, pursuant to that certain Securities Purchase Agreement, effective as of June 15,
2010, by and between the Company and the Sponsor (the “Securities Purchase Agreement”), the Sponsor
purchased 3,285,714 shares of common stock of the Company, par value $0.0001 per share (“Common
Stock”);
WHEREAS, pursuant to that certain Securities Assignment Agreement dated July 30, 2010, by and
among Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxxxx (each a “Buyer”, and collectively the “Buyers”),
and the Sponsor, the Sponsor assigned an aggregate of 32,856 shares of Common Stock to the Buyers
with each Buyer acquiring 16,428 shares of Common Stock;
WHEREAS, pursuant to the Company’s registration statement filed with the Securities and
Exchange Commission on Form S-1, No. 333-167809 (the “Registration Statement”), the Company is
contemplating conducting an initial public offering of units, each unit consisting of one share of
Common Stock and one warrant, and decreasing the contemplated size of such initial public offering
of units from $200,000,000 to $150,000,000; and
WHEREAS, the Sponsor wishes to return to the Company for cancellation 813,214 shares of Common
Stock (in an amount pro rata to the reduction of such initial public offering), such that the
Sponsor will beneficially own 12.375% of the outstanding shares of Common Stock following the
consummation of such initial public offering of units.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual
covenants contained in this Agreement, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1 Assignment of Shares. The Sponsor hereby assigns and surrenders to the
Company for cancellation 813,214 shares of Common Stock. After giving effect to the cancellation
of such shares of Common Stock, the Sponsor acknowledges that it holds 2,439,644 shares of Common
Stock.
Section 2 No Conflicts. Each party represents and warrants that neither the
execution and delivery of this Agreement by such party, nor the consummation or performance by such
party of any of transactions contemplated hereby, will with or without notice or lapse of time,
constitute, create or result in a breach or violation of, default under, loss of benefit or right
under or acceleration of performance of any obligation required under any agreement to which it is
a party.
Section 3 Miscellaneous. This Agreement, together with the certificates, documents,
instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and
understanding of the parties hereto in respect of its subject matter. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument. This Agreement may not be amended, modified
or waived as to any particular provision, except by a written instrument executed by all parties
hereto. Except as otherwise provided herein, no party hereto may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written consent of the
other party.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
| XXXXX ACQUISITION COMPANY II, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| SPONSOR: | ||||||
| HH-HACII, L.P. | ||||||
| By: | HH-HACII GP, LLC, | |||||
| Its general partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Manager | |||||
Signature Page to Sponsor Contribution Agreement
