STOCK PURCHASE AGREEMENT
AGREEMENT
(this “Agreement”) made as of this 18 day of December, 2008 by and between GMS
Acquisition Partners Holdings, LLC (“GMS”) and Xxxxxxx X.
Xxxxxxxxx (“Xxxxxxxxx”). For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, GMS and Xxxxxxxxx agree
as follows:
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1.
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Sale
Transaction. On January 15, 2009, Xxxxxxxxx and/or his
designees shall purchase from GMS or its designees 625,000 shares of
common stock of Vector Intersect Security Acquisition Corp. (“Vector”) for
a purchase price of $4.00 per
share.
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2.
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Put
Right. During the period between February 2, 2009 and
April 18, 2009, GMS and/or its designees shall have the right to elect to
sell to Xxxxxxxxx and his designees and Xxxxxxxxx hereby agrees to
purchase (directly and/or by a designee), 120 days after receiving GMS’ or
its designees written election to exercise their rights pursuant to this
Section 2
(the “Put Notice”), up to 1,562,500 shares of the common stock of Vector
for a purchase price of $4.80 per share. The Put Notice shall
specify the number of shares being elected to be
sold.
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3.
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Closing. The
transactions contemplated by Section 1 shall
be consummated on January 15, 2009 and the transactions contemplated by
Section 2
shall be consummated on the 120th day following the delivery of the Put
Notice (or the first business day thereafter if the 120th
day is not a business day), or, in each case, at a later date mutually
agreed upon in writing by the parties. At each closing, GMS or
its designees will deliver the shares sold at such closing to Xxxxxxxxx
and/or his designees, as applicable, and Xxxxxxxxx and his designees shall
pay GMS or its designees, as applicable, the purchase price for the shares
sold at such closing by wire transfer of immediately available funds to an
account or accounts designated by GMS or its designees who are selling
shares at such closing (as applicable). In no event shall
Xxxxxxxxx be required to pay more than $2.5 million in the aggregate
pursuant to Section 1 and
$7.5 million in the aggregate pursuant to Section 2
pursuant to this Agreement or any assignments of this
Agreement.
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4.
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Revoking Election to
Sell. Once GMS makes an election pursuant to Section 2, such
election may not be revoked.
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5.
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GMS Representations
and Warranties. GMS hereby represents and warrants to
Xxxxxxxxx as of the date hereof and as of each closing, as follows: (a)
immediately prior to the closing of each sale pursuant to this Agreement,
GMS or its applicable designees will have all rights, title and interest
in and to the shares being sold, (b) any shares sold by GMS and its
designees under this Agreement will be owned by GMS or its applicable
designee free and clear of all liens and encumbrances, and upon receipt of
such shares the purchaser of such shares will have all rights, title and
interest in and to such shares, (c) this Agreement has been validly
authorized, executed and delivered by GMS and, assuming the due
authorization, execution and delivery thereof by Xxxxxxxxx, is a valid and
binding agreement enforceable in accordance with its terms, subject to the
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors’ rights generally, and (d) the execution,
delivery and performance of this Agreement by GMS does not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which GMS is a
party which would prevent GMS from performing its obligations hereunder or
(ii) any law, statute, rule or regulation to which GMS is
subject. For the avoidance of doubt, GMS’s does not represent
or warrant whether or not the disclosure made by Vector in connection with
the transactions contemplated by this Agreement are sufficient or
otherwise in compliance with applicable laws, rules and
regulations.
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6.
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Xxxxxxxxx
Representations and Warranties. Xxxxxxxxx hereby
represents and warrants to GMS and its designees as of the date hereof and
as of each closing, as follows: (a) Xxxxxxxxx and his designees under this
Agreement are sophisticated in financial matters and are each able to
evaluate the risks and benefits attendant to the purchase of the shares
under this Agreement, (b) Xxxxxxxxx or any of his designees has
not relied upon any oral or written representations or assurances from GMS
or any of its officers, directors, partners, affiliate, or
designees or any other representatives or agents of such persons, (c)
Xxxxxxxxx has had access to all of the filings made by Vector with the SEC
pursuant to the Exchange Act and the Securities Act, in each case to the
extent available publicly accessible via the SEC’s Electronic Data
Gathering, Analysis and Retrieval system, (d) this Agreement has been
validly executed and delivered by Xxxxxxxxx and, assuming the due
authorization, execution and delivery thereof by GMS, is a valid and
binding agreement enforceable in accordance with its terms, subject to the
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors’ rights generally, (e) the execution, delivery
and performance of this Agreement by Xxxxxxxxx does not and will not
conflict with, violate or cause a breach of, constitute a default under,
or result in a violation of (i) any agreement, contract or instrument to
which Xxxxxxxxx is a party which would prevent Xxxxxxxxx from performing
its obligations hereunder or (ii) any law, statute, rule or regulation to
which Xxxxxxxxx is subject, (f) Xxxxxxxxx acknowledges that he has had the
opportunity to review this Agreement and the transactions contemplated by
this Agreement with Xxxxxxxxx’x own legal counsel and investment and tax
advisors and Xxxxxxxxx is relying solely on such counsel and advisors and
not on any statements or representations of GMS or any of its
representatives or agents for legal, tax or investment advice with respect
to this Agreement or the transactions contemplated by this
Agreement.
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7.
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Closing of Cyalume
Transaction. In no event may GMS or its designees make
any election pursuant to this Agreement until after the transaction
between Vector and Cyalume Technologies, Inc. pursuant to the Stock
Purchase Agreement, dated as of February 14, 2008, as amended (the
“Transaction”), closes.
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8.
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Termination. This
Agreement shall terminate in the event that the Transaction does not close
prior to December 31, 2008.
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9.
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Counterparts. 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.
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10.
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Governing Laws;
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.
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11.
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WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HEREBY WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
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12.
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Remedies. Each
of the parties hereto acknowledges and agrees that, in the event of any
breach of any covenant or agreement contained in this Agreement by the
other party, money damages may be inadequate with respect to any such
breach and the non-breaching party may have no adequate remedy at
law. It is accordingly agreed that each of the parties hereto
shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to seek injunctive relief and/or to compel
specific performance to prevent breaches by the other party hereto of any
covenant or agreement of such other party contained in this
Agreement.
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13.
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Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns,
provided that any assignment by GMS must be made with a corresponding
number of shares of Vector common stock. Either party may
assign this Agreement to any other person, provided that GMS may, at its
option, assign the rights to this Agreement to several persons; provided
further, however, that in making an assignment to multiple persons, the
amount of Vector shares to be purchased by Xxxxxxxxx or his designees
pursuant to this Agreement may not exceed the amounts specified in Sections 1 and
2 of this
Agreement in the aggregate. GMS shall notify Xxxxxxxxx of any
assignment of its rights under this Agreement within 5 business days of
making such assignment.
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14.
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Entire
Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior
agreements, representations, warranties, whether oral or written, among
the parties hereto relating to the transaction contemplated
hereby. Neither this Agreement nor any provision hereof may be
changed or amended orally, but only by an agreement in writing signed by
the other party hereto.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
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By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx
Xxxxxxx
Title:
CEO
/s/
Xxxxxxx
X.
Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
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