Exhibit 10.12
PLACEMENT UNIT AND WARRANT PURCHASE AGREEMENT
PLACEMENT UNIT PURCHASE AGREEMENT (this "Agreement") made as of this 25th
day of July, 2006 among Xxxxxxxx XxXxxxx Acquisition Corporation, a Delaware
corporation (the "Company") and Xxxxx X. XxXxxxx (the "Purchaser").
WHEREAS, the Company intends to file with the Securities and Exchange
Commission ("SEC") a registration statement on Form S-1 (the "Registration
Statement"), in connection with the Company's initial public offering (the
"IPO") of up to 15,625,000 units, each unit ("Unit") consisting of one share of
the Company's common stock, $.0001 par value (the "Common Stock"), and (ii) one
warrant, each warrant to purchase one share of Common Stock; and
WHEREAS, the Company desires to sell in a private placement to the
Purchaser (the "Placement") an aggregate of 187,500 units (the "Placement
Units") and 1,500,000 warrants (the "Placement Warrants") substantially
identical to the Units and warrants being issued in the IPO pursuant to the
terms and conditions hereof and as set forth in the Registration Statement,
except as described in the Registration Statement;
WHEREAS, the Placement Warrants and the warrants included in the Placement
Units (together, the "Warrants") shall be governed by the Warrant Agreement
filed as an exhibit to the Registration Statement; and
WHEREAS, the Purchaser is entitled to registration rights with respect to
the Common Stock and the Warrants and the Common Stock underlying the Warrants
(collectively, the "Registrable Securities") on the terms set forth in this
agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. PURCHASE OF UNITS AND WARRANTS. The Purchaser hereby agrees to purchase
an aggregate of 187,500 Placement Units at a purchase price of $8.00 per
Placement Unit, and 1,500,000 Placement Warrants at a purchase price of $1.00
per Placement Warrant, for an aggregate of $3,000,000 (the "Purchase Price").
2. CLOSING. The closing of the purchase and sale of the Placement Units
and the Placement Warrants (the "Closing") will take place at such time and
place as the parties may agree, but in no event later than the date on which
the SEC declares the Registration Statement effective (the "Closing Date").
On the Closing Date, the Purchaser shall pay the Purchase Price by wire
transfer of funds to an account maintained by the Company. Immediately prior
to the closing of the IPO, the Company shall deposit the Purchase Price into
the trust account described in the Registration Statement (the "Trust
Account"). The certificates for the Common Stock and Warrants shall be
delivered to the Purchaser promptly after the closing of the IPO.
3. VOTING OF SHARES. If the Company solicits approval of its stockholders
of a Business Combination, the Purchaser shall vote all of his shares of the
Common Stock acquired by him (i) pursuant to this Agreement, (ii) in the IPO and
(iii) in the aftermarket in accordance with the majority of the shares of Common
Stock voted by the "public stockholders" (as used in the Registration Statement)
and therefore waives any redemption rights he might have with respect to certain
of such shares. As used herein, a "Business Combination" shall mean an
acquisition or the acquisition of control of, through a merger, capital stock
exchange, asset acquisition, stock purchase or other similar business
combination, of one or more businesses in the telecommunications and media
industries selected by the Company.
4. WAIVER OF LIQUIDATION DISTRIBUTIONS. In connection with the Placement
Units purchased pursuant to this Agreement, the Purchaser hereby waives any and
all right, title, interest or claim of any kind in or to any liquidating
distributions by the Company in the event of a liquidation of the Company upon
the Company's failure to timely complete a Business Combination. For purposes of
clarity, any shares of Common Stock purchased in the IPO or the aftermarket by
the Purchaser shall be eligible to receive any liquidating distributions by the
Company.
5. LOCK-UP AGREEMENT. The Purchaser shall not, without the prior written
consent of the Company and Deutsche Bank Securities Inc. ("Deutsche Bank"), the
underwriters, (i) sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose
of, directly or indirectly, or file (or participate in the filing of) a
registration statement with the SEC in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder (the
"Exchange Act") with respect to, any Placement Units, Placement Warrants and the
shares and warrants comprising the Placement Units, the shares issuable upon the
exercise of the Warrants, the shares and warrants comprising the Placement
Units, or any securities convertible into or exercisable or exchangeable for
shares, or warrants, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Placement Units, Placement Warrants or any securities convertible
into or exercisable or exchangeable for shares, or warrants or other rights to
purchase shares or any such securities, whether any such transaction is to be
settled by delivery of shares or such other securities, in cash or otherwise, or
(iii) publicly announce an intention to effect any transaction specified in
clause (i) or (ii) until 30 days after the consummation of a Business
Combination. In order to enforce this covenant, the Purchaser agrees, if
requested by Deutsche Bank, to deposit the Placement Units and Placement
Warrants in an account to be established by Deutsche Bank. Notwithstanding
the foregoing, the undersigned may transfer his Placement Units, Placement
Warrants and the shares and warrants comprising the Placement Units, the
shares issuable upon the exercise of the Warrants, the shares and warrants
comprising the Placement Units while subject to the restriction hereunder (i)
by gift to a member of the undersigned's immediate family or to a trust, the
beneficiary of which is a member of an undersigned's immediate family, an
affiliate of the undersigned or to a charitable organization, (ii) by virtue
of the laws of descent and distribution upon death of the undersigned, (iii)
pursuant to a qualified domestic relations order, (iv) to another officer or
director of the Company or (v) in the event of a liquidation of the Company
prior to a Business Combination or the consummation of a liquidation, merger,
capital stock exchange, stock purchase, asset acquisition or other similar
transaction which results in all the Company's stockholders having the right
to exchange their shares of Common Stock for cash, securities or other
property subsequent to the Company's consummating a Business Combination with
a target business; provided, however, that the permissive transfers pursuant
to clauses (i) - (iii) may be implemented only upon the respective
transferee's written agreement to be bound by the terms and conditions of
this Agreement, including with respect to the voting requirements pertaining
to the Insider Shares and Private Placement Units.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
6.1 The Purchaser is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
6.2 The Placement Units, Placement Warrants and Common Stock and warrants,
if applicable, underlying such securities are being acquired for the Purchaser's
own account, only for investment purposes and not with a view to, or for resale
in connection with, any distribution or public offering thereof within the
meaning of the Securities Act.
6.3 The Purchaser has the full right, power and authority to enter into
this Agreement and this Agreement is a valid and legally binding obligation of
the Purchaser enforceable against the Purchaser in accordance with its terms.
6.4 The Purchaser acknowledges that the shares and warrants included in the
Placement Units purchased, the Placement Warrants and the shares issued upon
exercise of the Warrants, will bear a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT
AND LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
7. REGISTRATION RIGHTS AGREEMENT. At or prior to the Closing, the
Company and the Purchaser shall enter into a mutually satisfactory
registration rights agreement having the terms described in the registration
statement.
8. WAIVER OF CLAIMS; INDEMNIFICATION The Purchaser hereby waives any and
all rights to assert any present or future claims, including any right of
rescission, against the Company or Deutsche Bank with respect to his purchase of
the Placement Units and Placement Warrants, and the Purchaser agrees to
indemnify and hold the Company and Deutsche Bank harmless from all losses,
damages or expenses that relate to claims or proceedings brought against the
Company or Deutsche Bank by any of the Purchaser's transferees, heirs, assigns
or any subsequent holders of the Placement Units and Placement Warrants or
underlying securities.
9. 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.
10. 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
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.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns, provided,
however, that Purchaser shall not have the right to assign any of its rights
hereunder to purchase Placement Units or Placement Warrants to any other person.
12. THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person; provided that Deutsche Bank shall be a third party beneficiary of
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
25th day of July, 2006.
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
A Delaware Corporation
By: /s/ Xxxxx X. XxXxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
PURCHASER:
/s/ Xxxxx X. XxXxxxx
--------------------------------------------
Xxxxx X. XxXxxxx
