AMENDED AND RESTATED PLACEMENT AGREEMENT
AMENDED AND RESTATED PLACEMENT AGREEMENT (this "Agreement")
made as of this 6th day of March, 2007 by and among Highpoint Acquisition Corp.,
a Delaware corporation (the "Company"), X.X. Xxxxxxxxxx & Co., Inc. ("X.X.
Xxxxxxxxxx") and the undersigned (the "Purchasers").
WHEREAS, the Company has filed with the Securities and
Exchange Commission ("SEC") a registration statement on Form S-1, (as may be
amended from time to time, the "Registration Statement"), in connection with the
Company's initial public offering (the "IPO") of up to 4,166,667 units
(including up to 625,000 units issuable upon exercise of an overallotment
purchase option granted to X.X. Xxxxxxxxxx, as representative of the
underwriters, by the Company), each unit ("Unit") consisting of (i) one share of
the Company's common stock, $0.001 par value (the "Common Stock"), and (ii) two
warrants (each such warrant, a "Warrant"), each Warrant to purchase one share of
Common Stock;
WHEREAS, the Company desires to sell in a private placement to
the Purchasers (the "Placement") an aggregate of 1,200,000 warrants (the
"Placement Warrants") substantially identical to the Warrants being issued in
the IPO pursuant to the terms and conditions hereof and as set forth in
Amendment No. 3 to the Company's Registration Statement filed with the SEC and
previously distributed to the Purchasers except that the Placement Warrants to
be issued in the Placement shall not be registered under the Securities Act of
1933, as amended (the "Securities Act");
WHEREAS, each Purchaser desires to acquire the number of
Placement Warrants set forth opposite his name on Schedule A hereto;
WHEREAS, the Placement Warrants shall be governed by the
Warrant Agreement to be filed as an exhibit to the Registration Statement; and
WHEREAS, the Purchasers are entitled to registration rights
with respect to the Placement Warrants and the Common Stock issuable upon
exercise of the Placement Warrants (the "Warrant Shares") 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 Warrants. The Purchasers hereby agree to
purchase an aggregate of 1,200,000 Placement Warrants at a purchase price of
$0.75 per Placement Warrant, or an aggregate of $900,000 (the "Purchase Price").
Such purchases shall be in the names and amounts set forth on Schedule A hereto.
2. Closing. The closing of the purchase and sale of the
Placement Warrants (the "Closing") will take place at such time and place as the
parties may agree (the "Closing Date"),
but in no event later than the date on which the SEC declares the Registration
Statement effective (the "Effective Date"). On the Effective Date, the
Purchasers 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 fund described in the
Registration Statement (the "Trust Account"). The certificates for the Placement
Warrants shall be delivered to the Purchasers promptly after the closing of the
IPO.
3. Voting of Shares. If the Company solicits approval of its
stockholders of a Business Combination, the Purchasers shall vote (i) all of the
shares of the Common Stock acquired by the Purchasers (A) in the IPO and (B) in
the aftermarket following the IPO and (ii) the Warrant Shares in favor of the
Business Combination and therefore waive any redemption or conversion rights
they might have with respect to certain of such shares. As used herein, a
"Business Combination" shall be defined in the form of Amended and Restated
Certificate of Incorporation to be filed as an exhibit to the Registration
Statement.
4. Waiver of Liquidation Distributions. In connection with the
Placement Warrants purchased pursuant to this Agreement, the Purchasers hereby
waive any and all right, title, interest or claim of any kind in or to any
liquidating distributions by the Company with respect to any shares of Common
Stock issued or issuable upon exercise of the Placement Warrants 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 Purchasers shall be eligible to
receive any liquidating distributions by the Company.
5. Rescission Right Waiver and Indemnification.
5.1 Each of the Purchasers understands and acknowledges that
an exemption from the registration requirements of the Securities Act requires
that there be no general solicitation of purchasers of the Placement Warrants.
In this regard, if the offering of the Units in the Company's IPO were deemed to
be a general solicitation with respect to the Placement Warrants, the offer and
sale of such Placement Warrants may not be exempt from registration and, if not,
the Purchasers may have a right to rescind their purchases of the Placement
Warrants. In order to facilitate the completion of the Placement and in order to
protect the Company, its stockholders and the Trust Account from claims that may
adversely affect the Company or the interests of its stockholders, each of the
Purchasers hereby agrees to waive, to the maximum extent permitted by applicable
law, any claims, right to xxx or rights in law or arbitration, as the case may
be, to seek rescission of its purchase of the Placement Warrants. Each of the
Purchasers acknowledges and agrees that this waiver is being made in order to
induce the Company to sell the Placement Warrants to the Purchasers. Each
Purchaser agrees that the foregoing waiver of rescission rights shall apply to
any and all known or unknown actions, causes of action, suits, claims, or
proceedings (collectively, "Claims") and related losses, costs, penalties, fees,
liabilities and damages, whether compensatory, consequential or exemplary, and
expenses in connection therewith, including reasonable attorneys' and expert
witness fees and disbursements and all other expenses reasonably incurred in
investigating, preparing or defending against any Claims, whether pending or
threatened, in connection with any present or future actual or asserted right to
rescind the purchase of the Placement Warrants hereunder or relating to the
purchase of the Placement Warrants and the transactions contemplated hereby
(collectively, "Losses and Expenses").
5.2 Each Purchaser agrees not to seek recourse against the
Trust Account for any reason whatsoever in connection with his purchase of the
Placement Warrants or any Claim that may arise now or in the future.
5.3 The Purchasers acknowledge and agree that the stockholders
of the Company are and shall be third-party beneficiaries of the foregoing
provisions of this Agreement.
5.4 Each Purchaser agrees that to the extent any waiver of
rights under this Section 5 is ineffective as a matter of law, each Purchaser
has offered such waiver for the benefit of the Company as an equitable right
that shall survive any statutory disqualification or bar that applies to a legal
right. Each Purchaser acknowledges the receipt and sufficiency of consideration
received from the Company hereunder in this regard.
6. Lock-Up Agreement; Deposit with X.X. Xxxxxxxxxx. The
Purchaser shall not offer, sell, contract to sell, pledge, hypothecate or
otherwise dispose of, directly or indirectly, the Placement Warrants purchased
pursuant to this Agreement, enter into a transaction that would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of such
securities, whether any such aforementioned transaction is to be settled by
delivery of such securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement until the consummation of a Business Combination. In order to
enforce this covenant, if requested by X.X. Xxxxxxxxxx, the undersigned agree to
deposit the Placement Warrants in an account to be established at X.X.
Xxxxxxxxxx to be held in such account until the consummation of a Business
Combination.
7. Representations and Warranties of the Purchasers. Each
Purchaser hereby represents and warrants to the Company that:
7.1 The Purchaser is an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.
7.2 The Purchaser understands that the Placement Warrants and
the Warrant Shares are characterized as "restricted securities" under the U.S.
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances.
7.3 The Placement Warrants and the Warrant Shares 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.
7.4 The Purchaser acknowledges that it can bear the economic
risk and complete loss of its investment in the Placement Warrants and the
Warrant Shares and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
contemplated hereby.
7.5 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.
8. Registration Rights. The Purchaser will be entitled to the
benefit of the registration rights granted pursuant to the Registration Rights
Agreement among the Company and the parties named therein and the Placement
Warrants and the Warrant Shares shall be deemed "Registrable Securities" under
such Registration Rights Agreement.
9. Waiver of Claims; Indemnification. Each Purchaser hereby
waives any and all rights to assert any present or future claims, including any
right of rescission, against the Company, X.X. Xxxxxxxxxx or the other
underwriters in the IPO exclusively with respect to their purchase of the
Placement Warrants hereunder, and each Purchaser agrees to indemnify and hold
the Company, X.X. Xxxxxxxxxx and the other underwriters in the IPO harmless from
all losses, damages or expenses that relate to claims or proceedings brought
against the Company, X.X. Xxxxxxxxxx or such other underwriters by such
Purchaser of the Placement Warrants arising solely out of the purchase of the
Placement Warrants hereunder.
10. 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.
11. 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 6th
day of March, 2007.
HIGHPOINT ACQUISITION CORP.
By:
--------------------------------
Name:
Title:
X.X. XXXXXXXXXX & CO., INC.
By:
--------------------------------
Name:
Title:
PURCHASERS:
HARBOR HEALTHCARE HOLDING LLC
By:
--------------------------------
Name:
Title:
MORECO PARTNERS LLC
By:
--------------------------------
Name:
Title:
SCHEDULE A
PURCHASER AMOUNT PURCHASE PRICE
--------- ------ --------------
Harbor Healthcare Holding LLC 1,040,004 Warrants $780,003
Moreco Partners LLC 159,996 Warrants $119,997
TOTAL 1,200,000 Warrants $900,000
