REGIAN ACQUISITION CORP. 191 Post Road West Westport, Connecticut 06880
EXHIBIT 10.11
XXXXXX ACQUISITION CORP.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
| February 7, 2008 | ||
Xxxxxx Holdings, LLC |
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000 Xxxx Xxxx Xxxx |
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Xxxxxxxx, Xxxxxxxxxxx 00000 |
Dear Xx. XxXxxxxxxx:
We are pleased to accept the offer Xxxxxx Holdings, LLC (the “Subscriber”) has made to
purchase from Xxxxxx Acquisition Corp., a Delaware corporation (the “Company”), having its
principal place of business at 000 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, 2,875,000 units
(the “Units”), each unit consisting of one share of common stock of the Company, $0.0001 par value
per share (the “Common Stock”), and one warrant to purchase one share of Common Stock at a purchase
price of $7.50 (the “Warrants”), subject to adjustment. Up to 375,000 of the Units are subject to
forfeiture (the “Forfeiture”) by you if the underwriters of the initial public offering of the
Company do not fully exercise their over-allotment option. The terms on which the Company is
willing to sell the Units to the Subscriber, and the Company and the Subscriber’s agreements
regarding such Units, are as follows:
1. Purchase of Units. For the aggregate sum of $25,000.00 (the “Purchase Price”),
which the Company acknowledges receiving in cash on the date hereof, and subject to the Forfeiture,
the Company hereby sells and issues the Units to the Subscriber, and the Subscriber hereby
purchases the Units from the Company, on the terms and subject to the Forfeiture and other
conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this
Agreement, the Company is delivering to the Subscriber a certificate registered in the Subscriber’s
name representing the Units, receipt of which the Subscriber hereby acknowledges.
2. Representations and Warranties of the Company. To induce the Subscriber to purchase
the Units from the Company, the Company hereby represents and warrants to the Subscriber and agrees
with the Subscriber as follows:
2.1 Organization and Corporate Power. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware and is qualified to
do business in every jurisdiction in which the failure to so qualify would reasonably be expected
to have a material adverse effect on the financial condition, operating results or assets of the
Company. The Company possesses all
requisite corporate power and authority necessary to enter into this Agreement and to carry
out the transactions contemplated by this Agreement.
2.2 Authorization; No Breach.
(a) The execution and delivery of this Agreement, and performance of this Agreement have been
duly authorized by the Company as of the date hereof. This Agreement constitutes the valid and
binding obligation of the Company, enforceable in accordance with its terms.
(b) The execution and delivery by the Company of this Agreement, and the sale and issuance of
the Units and the fulfillment of and compliance with the respective terms hereof and thereof by the
Company, do not and will not as of the date hereof (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation
of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets,
(iv) result in a violation of, or (v) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or filing with, any court or administrative or
governmental body or agency pursuant to the Certificate of Incorporation of the Company or the
by-laws of the Company, or any material law, statute, rule or regulation to which the Company is
subject, or any agreement, order, judgment or decree to which the Company is subject or by which
its property is bound, except for any filings required after the date hereof under federal or state
securities laws.
2.3. Title to Securities. Upon issuance in accordance with, and payment pursuant to,
the terms hereof the Units, including the shares of Common Stock and Warrants included in the
Units, will be duly authorized and validly issued, fully paid and nonassessable. Upon issuance in
accordance with, and payment pursuant to, the terms hereof the Subscriber will receive good title
to the Units, free and clear of all liens, claims and encumbrances of any kind, other than (a)
transfer restrictions hereunder and under the other agreements contemplated hereby, (b) transfer
restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed
due to the actions of the Subscriber, and the issuance and sale of the Units to the Subscriber is
not subject to any preemptive rights or rights of first refusal or other similar rights.
3. The Subscriber’s Representations, Warranties and Agreements. To induce the Company
to issue and sell the Units to the Subscriber, the Subscriber hereby represents and warrants to the
Company and agrees with the Company as follows:
3.1. No Government Recommendation or Approval. The Subscriber understands that no
United States federal or state agency or similar agency of any other country, has passed upon or
made any recommendation or endorsement of the offering of the Units or the fairness or suitability
of the investment in the Units by the Subscriber nor have such authorities passed upon or endorsed
the merits of the private placement of the Units.
3.2. Experience, Financial Capability and Suitability. The Subscriber is sufficiently
experienced in financial and business matters to be capable of evaluating the merits and risks of
this investment and to make an informed decision relating thereto. The Subscriber is aware his
investment in the Company is a speculative investment involving a high degree of risk that has
limited liquidity, because of the restrictions on resale of the Units and because there may never
be an established market for the Company’s securities, including the Units and the shares of Common
Stock and Warrants included in the Units and the shares of Common Stock issuable upon exercise of
the underlying Warrants. The Subscriber has the financial capability for making the investment and
the investment is a suitable one for the Subscriber. The Subscriber can, without impairing his
financial condition, hold the Units in the amount contemplated by this Agreement for an indefinite
period of time. Subscriber has adequate means of providing for its current financial needs and
contingencies and will have no current or anticipated future needs for liquidity which would be
jeopardized by the investment in the Units. The Subscriber can afford a complete loss of the
investment in the Units. The Subscriber acknowledges that the Company has urged the Subscriber to
seek independent advice from professional advisors relating to the suitability of an investment in
the Company and in connection with this Agreement, and that the Subscriber has sought and received
such independent professional advice with respect to such investment and this Agreement or, after
careful consideration, the Subscriber has determined not to seek and/or receive such independent
professional advice. Subscriber is purchasing the Securities (as defined below) for investment for
the Subscriber’s own account only and not with a view to, or for resale in connection with, any
“distribution” thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”). The Subscriber understands that the Company is a blank check development stage
company recently formed for the purpose of consummating a Business Combination (as defined below)
and understands that there is no assurance as to the future performance of the Company or that the
Company may ever affect a Business Combination.
3.3. Access to Information. Prior to the execution of this Agreement, the Subscriber
has had the opportunity to ask questions of and receive answers from representatives of the Company
concerning an investment in the Company, as well as the finances, operations, business and
prospects of the Company, and the opportunity to obtain additional information to verify the
accuracy of all information so obtained in order to make an informed and knowledgeable decision to
acquire the Units. Prior to the execution of this Agreement, the Subscriber has been furnished
with all materials relating to the Company’s finances, operations, business and prospects of the
Company related to the offer and sale of the Units.
3.4 Regulation D Offering. Subscriber understands that the Units, including the
shares of Common Stock and Warrants included in the Units and the shares of Common Stock issuable
upon exercise of the underlying Warrants, have not been registered under the Securities Act or any
state securities law by reason of a specific exemption therefrom, and that the Company is relying
on the truth and accuracy of, and the Subscriber’s compliance with, the representations and
warranties and agreements of the Subscriber set forth herein to determine the availability of such
exemptions and the
eligibility of the Subscriber to acquire the Units, including, but not limited to, the bona
fide nature of the Subscriber’s investment intent as expressed herein. Subscriber represents that
it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the
Securities Act and acknowledges the sale contemplated hereby is being made in reliance on a private
placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D
under the Securities Act or similar exemptions under state law; and, accordingly, such Units, the
shares of Common Stock and Warrants included in the Units, and the shares of Common Stock issuable
upon exercise of the Warrants (collectively, the “Securities”) will be “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, and therefore Subscriber further
acknowledges and understands that the Securities must be held indefinitely and may not be offered,
sold, transferred, pledged or otherwise disposed of unless registered under the Securities Act and,
if applicable, the securities laws of any applicable state or other jurisdiction or in the absence
of such registration upon delivery to the Company of an opinion of counsel satisfactory to the
Company that such registration is not required and Subscriber understands the certificates
representing the Securities will contain a legend in respect of such restrictions. The Subscriber
did not decide to enter into this Agreement as a result of any general solicitation or general
advertising within the meaning of Rule 502 under the Securities Act.
3.5. Restrictions on Transfer. Subscriber acknowledges and understands the Units are
being offered in a transaction not involving a public offering within the meaning of the Securities
Act and the Securities have not been registered under the Securities Act, and, if in the future the
Subscriber decides to offer, sell, transfer, pledge or otherwise dispose of the Securities, such
Securities may be offered, sold, transferred, pledged or otherwise disposed of only if registered
under the Securities Act and, if applicable, the securities laws of any applicable state or other
jurisdiction or pursuant to an exemption from such registration and upon delivery to the Company of
an opinion of counsel satisfactory to the Company that such registration is not required. Absent
registration or an available exemption from registration, the Subscriber agrees that it will not
resell or otherwise transfer the Securities.
3.6. Rule 144. From time to time, Subscriber may be eligible to sell all or some of
its Securities by means of ordinary brokerage transactions in the open market pursuant to Rule 144,
promulgated under the Securities Act, subject to certain limitations. Subscriber understands and
acknowledges that pursuant to Rule 144, after satisfying a six month holding period: (i) affiliated
Subscribers may, under certain circumstances, sell within any three month period a number of
securities which does not exceed the greater of 1% of the then outstanding Securities of the same
class or the average weekly trading volume of the class during the four calendar weeks prior to the
filing of a Notice on Form 144 with respect to such sale and (ii) non-affiliated Subscribers may
sell without such limitations, provided the Company is current in its public reporting obligations.
Rule 144 also permits the sale of securities by non-affiliates that have satisfied a one year
holding period without any limitation or restriction. Subscriber further understands and
acknowledges that because the Company is a shell company, Subscriber may not sell the Securities
under Rule 144 unless the following conditions are met: (1) the Company has
ceased to be a shell company, (2) the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (3)
the Company has filed all reports and other materials required to be filed by Section 13 or 15(d)
of the Exchange Act, as applicable, during the preceding 12 months, other than Form 8-K reports,
and (4) one year has elapsed since the Company has filed current “Form 10 information” with the
Securities and Exchange Commission (the “SEC”) reflecting its status as an entity that is no longer
a shell company.
3.7 Pro-rata Forfeiture. Subscriber hereby acknowledges and agrees that up to 375,000
of the 2,875,000 Units are subject to forfeiture in the event that the underwriters’ over-allotment
option is not exercised, either partially or fully, as set forth in Section 4.4.
3.8 Power and Authorization. The Subscriber posses all requisite power and authority
necessary to enter into and carry out the transactions contemplated by this Agreement. The
execution and delivery of this Agreement, and performance of this Agreement, have been duly
authorized by the Subscriber as of the date hereof. This Agreement constitutes the valid and
binding obligation of the Subscriber, enforceable in accordance with its terms. The execution and
delivery by the Subscriber of this Agreement, and the purchase of the Units and the fulfillment of
and compliance with the respective terms hereof and thereof by the Subscriber do not conflict with
or result in a breach of the terms, condition or provisions of, or constitute a default under the
organizational documents of, the Subscriber or any agreement, order, judgment or decree to which
the Subscriber is subject or its property is bound.
4. Forfeiture of Units; Escrow of Units.
4.1. Failure to Consummate Business Combination. All of the Securities initially
shall be subject to forfeiture to the Company in accordance with this Section 4. The Securities
shall be forfeited to the Company in the event the Company does not consummate a Business
Combination, as such term is defined in the Company’s registration statement on Form S-1 under the
Securities Act to be filed with the SEC (the “Registration Statement”), with respect the Company’s
initial public offering (the “IPO”) of its securities, within 24 months (or 30 months in the event
the Company has entered into a definitive agreement with respect to a business consummation and the
stockholders have approved an extension for the purpose of consummating a Business Combination)
from the date of the final prospectus for the IPO.
4.2. Termination of Rights. If the Securities are forfeited in accordance with this
Section 4, then after such time the Subscriber (or successor in interest and its transferees),
shall no longer have any rights as a holder of such Securities, and the Company shall take such
action as is appropriate to cancel such Securities. In addition, the Subscriber hereby irrevocably
grants the Company a limited power of attorney for the purpose of effectuating the foregoing.
4.3. Escrow. Upon consummation of the IPO, the Subscriber, and its designees, shall
enter into a securities escrow agreement (the “Escrow Agreement”) with Continental Stock Transfer &
Trust Company (the “Escrow Agent”), whereby the Securities (and any shares of Common Stock which
may be issued as a dividend as a result of any stock split) shall be held in escrow and will not be
released until the expiration of the period (as such period may be extended) as described in the
section entitled “Principal Stockholders’ in the final prospectus for the IPO.
4.4 Pro-rata Forfeiture. If the underwriters of the IPO fail to exercise any portion
or all of the over-allotment option granted to them prior to the expiration of such option, then
Subscriber shall automatically forfeit up to 375,000 Units purchased hereunder (based upon the
percentage of the over-allotment option not exercised by the underwriters of the IPO), such that
Subscriber and any transferees of any of the Units purchased by Subscriber hereunder shall, in the
aggregate, beneficially own no greater than 20% of the Units of the Company issued and outstanding
pursuant to this Agreement and the Company’s IPO.
5. Waiver of Liquidation Distributions; Conversion Rights. In connection with the
Units and other Securities purchased pursuant to this Agreement and any other Company securities
purchased on a private placement basis, the Subscriber hereby waives any and all right, title,
interest or claim of any kind in or to any distributions by the Company from the Trust Account, as
such term is defined in the Registration Statement, in the event of a liquidation of the Company
upon the Company’s failure to timely complete a Business Combination. For purposes of clarity, in
the event the Subscriber purchases shares of Common Stock in the IPO or in the aftermarket, any
additional shares so purchased shall be eligible to receive any liquidating distributions by the
Company. However, in no event will Subscriber have the right to redeem any shares of Common Stock,
regardless of how acquired, in connection with any stockholder vote to extend the period to
consummate a Business Combination or with respect to a Business Combination.
6. Restrictions on Transfer.
6.1 Securities Law Restrictions. In addition to the restrictions contained in the
Escrow Agreement and any insider letter, letter agreement or other similar agreement, Subscriber
agrees not to offer, sell, transfer, pledge or otherwise dispose of the Securities unless
registered under the Securities Act and, if applicable, the securities laws of any applicable state
or other jurisdiction or pursuant to an exemption from such registration and upon delivery to the
Company of an opinion of counsel satisfactory to the Company that such registration is not
required.
6.2 Restrictive Legends. All certificates representing the Units, the Common Stock
and the Warrants shall have endorsed thereon legends substantially as follows or to substantially
the same effect:
“THE SECURITIES REPRESENTED HEREBY (INCLUDING THE UNDERLYING COMMON STOCK
AND WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE
UNDERLYING WARRANTS) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT AND, IF APPLICABLE, THE SECURITIES LAWS OF ANY APPLICABLE STATE OR
OTHER JURISDICTION OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND
UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATSIFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
“SECURITIES EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION
RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE
COMPANY.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS CONTAINED IN A SECURITIES ESCROW AGREEMENT (THE
“AGREEMENT”) AND MAY NOT BE ASSIGNED, HYPOTHECATED, DONATED, ENCUMBERED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE
AGREEMENT DURING THE TERM OF THE ESCROW PERIOD (AS DEFINED IN THE
AGREEMENT).”
6.3. Additional Units or Substituted Securities. In the event of the declaration of
a stock dividend, the declaration of an extraordinary dividend payable in a form other than stock,
a spin-off, a stock split, an adjustment in exercise price or terms, a recapitalization or a
similar transaction affecting the Company’s outstanding capital stock without receipt of
consideration, any new, substituted or additional securities or other property which are by reason
of such transaction distributed with respect to any Securities or any other securities into which
such Securities thereby become convertible shall immediately be subject to this Agreement, the
Escrow Agreement and any insider letter, letter agreement or other similar agreement.
7. Other Agreements.
7.1. Further Assurances. Subscriber agrees to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the intent of this Agreement.
7.2 No Obligation as to Employment. The Company is not by reason of this Agreement
obligated to employ, or continue to employ, the Subscriber in any capacity.
7.3. Notices. All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party’s address set forth on the first
page of this Agreement or to such other address as a party may designate by notice hereunder, and
shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified
mail, return receipt requested, postage prepaid. All notices, requests, consents and other
communications hereunder shall be deemed to have been given either (i) if by hand, at the time of
the delivery thereof to the receiving party at the address of such party set forth above, (ii) if
sent by overnight courier, on the next business day following the day such notice is delivered to
the courier service, or (iii) if sent by certified mail, on the fifth (5th) business day
following the day such mailing is made.
7.4. Entire Agreement. This Agreement supersedes all prior oral or written agreements
and understandings relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be
used to interpret, change or restrict, the express terms and provisions of this Agreement.
7.5. Modifications and Amendments. The terms and provisions of this Agreement may be
modified or amended only by written agreement executed by all parties hereto.
7.6. Waivers and Consents. The terms and provisions of this Agreement may be waived,
or consent for the departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to
be or shall constitute a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not constitute a continuing
waiver or consent.
7.7. Assignment. The rights and obligations under this Agreement may not be assigned
by either party hereto without the prior written consent of the other party.
7.8. Benefit. All statements, representations, warranties, covenants and agreements
in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the
respective successors and permitted assigns of each party hereto.
Nothing in this Agreement shall be construed to create any rights or obligations except among
the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this
Agreement.
7.9. Governing Law. This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of State of New York,
without giving effect to the conflict of law principles thereof.
7.10. Severability. In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the
extent that such court deems it reasonable and enforceable, and as so limited shall remain in full
force and effect. In the event that such court shall deem any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full
force and effect.
7.11. No Waiver of Rights, Powers and Remedies. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no course of dealing
between the parties hereto, shall operate as a waiver of any such right, power or remedy of such
party. No single or partial exercise of any right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy,
shall preclude such party from any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available remedies. No notice to or
demand on a party not expressly required under this Agreement shall entitle the party receiving
such notice or demand to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the party giving such notice or demand to any other or further
action in any circumstances without such notice or demand.
7.12. Survival of Representations and Warranties. All representations and warranties
made by the parties hereto in this Agreement or in any other agreement, certificate or instrument
provided for or contemplated hereby, shall survive the execution and delivery hereof and any
investigations made by or on behalf of the parties.
7.13. No Broker or Finder. Each of the parties hereto represents and warrants to the
other that no broker, finder or other financial consultant has acted on their behalf in connection
with this Agreement or the transactions contemplated hereby in such a way as to create any
liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless
from any claim or demand for commission or other compensation by any broker, finder, financial
consultant or similar agent claiming to have been employed by or on behalf of such party and to
bear the cost of legal expenses incurred in defending against any such claim.
7.14. No Recourse Against Trust Account. Subscriber agrees not to seek recourse
against the Trust Account for any reason whatsoever in connection with its purchase of the Units or
any and all known or unknown actions, causes of action, suits, claims or proceedings (collectively,
the “Claims”) that may arise now or in the future and waives any and all right, title, interest and
Claims of any kind in or to, and any and all rights to seek payment of amounts due it out of, the
Trust Account and any monies or other assets in the Trust Account.
7.15. Headings and Captions. The headings and captions of the various subdivisions
of this Agreement are for convenience of reference only and shall in no way modify or affect the
meaning or construction of any of the terms or provisions hereof.
7.16. Counterparts. This Agreement may be executed in one or more counterparts, all
of which when taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by electronic mail delivery of a “.pdf” format
data file, such signature shall create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and effect as if such facsimile or
”.pdf” signature page were an original thereof.
If the foregoing accurately sets forth our understanding and agreement, please sign the
enclosed copy of this agreement and return it to us.
| Very truly yours, XXXXXX ACQUISITION CORP. |
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| By: | /s/ Xxxx X. XxXxxxxxxx | |||
| Name: | Xxxx X. XxXxxxxxxx | |||
| Title: | Co-Chief Executive Officer | |||
Accepted and agreed this
7th day of February, 2008
7th day of February, 2008
XXXXXX
|
HOLDINGS, LLC | |||
By:
|
/s/ Xxxx X. XxXxxxxxxx | |||
Name:
|
Xxxx X. XxXxxxxxxx | |||
Title:
|
Co-Manager |
