AGREEMENT
AGREEMENT
THIS
AGREEMENT (this “Agreement”), dated as of
October 22, 2009, is made by and among SECURE AMERICA ACQUISITION CORPORATION, a
Delaware corporation (“Secure”), and Ultimate Escapes
Holdings, LLC, a Delaware limited liability company (the “Target” and, with Secure, the
“Companies”), Xxxxxx X.
Xxxxx and C. Xxxxxx XxXxxxxx (together, the “Insiders”), on the one hand,
and VICTORY PARK CAPITAL ADVISORS, LLC, on behalf of one or more entities for
which it acts as investment manager (“Victory Park”), on the
other.
WHEREAS,
Secure was organized for the purpose of acquiring, or acquiring control of,
through a merger, capital stock exchange, asset acquisition or other similar
business combination, one or more domestic or international operating businesses
in the homeland security industry, but not businesses that design, build or
maintain mission-critical facilities (“Business
Combination”);
WHEREAS,
Secure consummated an initial public offering in October 2007 (“IPO”) in connection with which
it raised gross proceeds of approximately $80 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 Secure in the event it is unable to consummate a
Business Combination on or prior to October 29, 2009 (the “Expiration
Date”);
WHEREAS,
Secure has agreed to a business combination (the “Acquisition”) with the Target
pursuant to certain agreements (“Transaction
Agreements”);
WHEREAS,
the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding shares of common
stock of Secure which are present and entitled to vote at the meeting called to
approve the Acquisition;
WHEREAS,
pursuant to certain provisions in Secure’s certificate of incorporation, a
holder of shares of Secure’s common stock issued in the IPO (the “Public Shares”) may, if it
votes against the Acquisition, demand that Secure convert such Public Shares
into cash (which terms of such certificate of incorporation are the subject of a
proposal in the Company’s proxy statement to be amended to provide that a holder
of Public Shares may vote in favor of or against the Transaction and properly
demand that the Company convert such Public Shares into cash) (“Conversion
Rights”);
WHEREAS,
the Acquisition cannot be consummated if holders of 30% or more of the Public
Shares exercise their Conversion Rights and vote against the
Acquisition.
NOW,
THEREFORE, the undersigned parties agree as follows:
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1.
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Agreement to Make
Purchases of Secure Common Stock. Victory Park (and any
other purchasers acceptable to Victory Park and Secure) agrees to use its
reasonable best efforts to make simultaneous privately negotiated
purchases of up to approximately $15 million of shares (or up to 1,889,169
shares; the “Contract
Value”) of Secure common stock at purchase prices not to exceed
$7.94 per share (at the discretion of Secure) prior to October 28, 2009,
provided that the Companies and the Insiders agree to enter into the form
of forward contract (“Forward Contract
Arrangement”) attached hereto as Annex
A with the purchaser of such shares of common stock in connection
therewith. Purchases by Victory Park shall not begin until at
least one business day after Secure publicly announces the entering into
of this Agreement with respect to the Forward
Contract.
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2.
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Fees. In
exchange for its services in aggregating blocks of shares for purchase by
Victory Park from Secure stockholders that have indicated an intention to
convert their shares of Secure common stock and or vote against the
Acquisition, Secure shall pay Victory Park on the earlier of (i) the
Closing Date (as defined in the Forward Contract) or (ii) October 29, 2009
a fee equal to the greater of: (i) 1.0% of the Contract Value and (ii)
$100,000 (the “Premium”); provided,
that, in the event Secure does not request Victory Park to fund any
portion of the Contract Value, Secure shall not be obligated to pay any
Premium to Victory Park.
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3.
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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 Secure
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.
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4.
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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.
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5.
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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.
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[Signature
page to follow]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first written above.
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By:
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/s/ C. Xxxxxx
XxXxxxxx
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Name:
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C. Xxxxxx
XxXxxxxx
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Title:
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Co-Chief Executive
Officer
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ULTIMATE
ESCAPES HOLDINGS, LLC
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By:
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/s/ Xxxxx
Xxxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxxx
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Title:
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Chief Executive
Officer
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VICTORY
PARK CAPITAL ADVISORS, LLC
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By:
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/s/ Xxxxx X.
Xxxxxxx
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Name:
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Xxxxx X.
Xxxxxxx
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Title:
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General
Counsel
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/s/ C. Xxxxxx XxXxxxxx
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C.
Xxxxxx XxXxxxxx
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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