HCM ACQUISITION COMPANY SECURITIES PURCHASE AGREEMENT
Exhibit 10.12
EXECUTION
COPY
THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of November 15, 2007, is
entered into by and among HCM Acquisition Holdings, LLC, a Delaware limited liability company (the
“Seller”), and the purchasers identified on Exhibit A hereto (each, a “Purchaser” and
collectively, the “Purchasers”).
WHEREAS, HCM Acquisition Company (the “Company”) intends to file a registration statement (the
“Registration Statement”) for the initial public offering of units (the “Initial Public Offering”),
each unit consisting of one share of the Company’s common stock, par value $0.001 per share (a
“Share”), and one warrant to purchase one Share at an exercise price of $7.50 per Share.
WHEREAS, the Seller owns 7,187,500 units (the “Founder’s Units”), each unit consisting of one
Share (the “Founder’s Shares”), and one warrant to purchase one Share at an exercise price of $7.50
per share (the “Founder’s Warrants”).
WHEREAS, concurrently with the execution and delivery of this Agreement, the Seller desires to
sell certain of the Founder’s Units to the Purchasers in the respective amounts set forth opposite
each Purchaser’s name on Exhibit A hereto, and the Purchasers desire to purchase the
Founder’s Units from the Seller in the respective amounts set forth opposite each Purchaser’s name
on Exhibit A hereto, all upon the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual promises contained in this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
Section 1. Authorization, Purchase and Sale; Terms of the Founder’s Units, Founder’s Shares and
Founder’s Warrants.
A. Purchase and Sale of the Founder’s Units. Concurrently with the execution and
delivery of this Agreement or as such date may be extended from time to time by mutual agreement of
the parties (the “Closing Date”), the Seller shall sell, assign and transfer the Founder’s Units
(consisting of the Founder’s Shares and the Founder’s Warrants) it is selling hereunder to each
Purchaser, free and clear of all liens, other than restrictions as may be imposed pursuant to state
or federal securities laws, in consideration of the payment of the Purchase Price (as defined
below). On the Closing Date, the Seller shall deliver certificates evidencing the Founder’s Units,
Founder’s Shares and Founder’s Warrants to be purchased by each Purchaser hereunder upon the
payment by each Purchaser of the amounts set forth opposite each Purchaser’s name on Exhibit
A hereto, in the aggregate amount of $120.00 (the “Purchase
Price”), by wire transfer of immediately available funds (or by such other means as the Seller
and such Purchaser shall agree) to the Seller in accordance with the Seller’s wiring instructions.
B. Terms of the Founder’s Units, Founder’s Shares and Founder’s Warrants.
(i) Founder’s Units: Each Unit of the Founder’s Units shall consist of one Founder’s
Share and one Founder’s Warrant and shall have the terms set forth in the Unit Certificate attached
as Exhibit B hereto.
(ii) Founder’s Shares: The Founder’s Shares shall have the terms set forth in the
Certificate of Incorporation of the Company and the Founder’s Share Certificate attached as
Exhibit C hereto. Without limiting the foregoing, each Purchaser hereby expressly agrees
that if the Company consummates the Initial Public Offering, then (i) in connection with the
stockholder vote required to approve a merger, capital stock exchange, asset acquisition or other
similar business combination with one or more businesses or assets (a “Business Combination”), such
Purchaser agrees to (x) vote the Founder’s Shares in accordance with a majority of the shares of
common stock voted by holders of shares of common stock issued in the Initial Public Offering and
(y) vote the Founder’s Shares in favor of an amendment to the Company’s amended and restated
certificate of incorporation to provide for the Company’s perpetual existence, and (ii) each
Purchaser agrees to waive any right to participate in any liquidation distribution to the extent
set forth in Section 3.D of this Agreement.
(iii) Founder’s Warrants: The Founder’s Warrants shall have the terms set forth in the
Warrant Agreement set forth as Exhibit D hereto.
(iv) Transfer Restrictions: In addition to the restrictions on transfer set forth in
Section 8 hereof, each Purchaser shall not sell or transfer the Founder’s Units, Founder’s Shares,
Founder’s Warrants and the Shares underlying the Founder’s Warrants for a period of 180 days from
the date the Company completes its initial business combination except to a Company officer,
director or employee, or any other person or entity associated or affiliated with Highland Capital
Management, L.P. (each, a “Permitted Transferee”), who agrees in writing with the Company to be
subject to such transfer restrictions, vote the Founder’s Shares as provided in (ii) above; waive
any right to participate in any liquidation distribution as provided in (ii) above and agrees to
the adjustment of the Founder’s Units as provided in (vi) below. During this period, each
Purchaser and its Permitted Transferees shall retain all other rights of holders of Shares,
including, without limitation, the right to vote their Shares (except as described above with
respect to a Business Combination) and the right to receive cash dividends, if declared. If
dividends are declared and payable in Shares, such dividends will also be subject to the
restrictions contained in this Section 1.C.(v).
(v) Registration Rights: In connection with the closing of the Initial Public
Offering, the Purchasers shall enter into an agreement with the Company (the “Registration Rights
Agreement”) granting the Purchasers registration rights with respect to each of the Founder’s
Units, Founder’s Shares, Founder’s Warrants and the Shares underlying the Founder’s Warrants
(collectively, the “Securities”).
(vi) Adjustment of Founder’s Units:
(a) If the underwriters’ with respect to the Initial Public Offering do not exercise the
over-allotment option proposed to be granted to them by the Company, each
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Purchaser and any
Permitted Transferees agree to forfeit to the Company, in such proportion as such Purchaser holds
of the total outstanding Founder’s Units immediately prior to the Initial Public Offering, a number
of Founder’s Units necessary to ensure that the aggregate amount of Founder’s Shares held by the
Seller, the Purchasers and any Permitted Transferees does not exceed 20% of the issued and
outstanding common stock of the Company upon consummation of the Initial Public Offering. Each
Purchaser and any Permitted Transferees agree to take any and all action reasonably requested by
the Company necessary to effect any adjustment pursuant to this paragraph (vi)(a). The Company will
not make any cash payment to the Purchasers or any Permitted Transferees in respect of any such
adjustment.
(b) If the number of units offered to the public in connection with the Initial Public
Offering is increased or decreased, each Purchaser and any Permitted Transferees agree that the
Founder’s Units (including the Founder’s Units subject to forfeiture) pruchased by such Purchaser
hereunder will be adjusted in the same proportion as the increase or decrease of the units offered
to the public in order to ensure that the aggregate amount of Founder’s Shares held by the Seller,
the Purchasers and any Permitted Transferees does not fall below or exceed 20% of the issued and
outstanding common stock of the Company upon consummation of the Initial Public Offering (including
any shares of common stock issued pursuant to the underwriters’ over-allotment option). Each
Purchaser and any Permitted Transferees agree to take any and all action reasonably requested by
the Company necessary to effect any adjustment pursuant to this paragraph (vi)(b); provided that
the Company will not make or receive any cash payment to or from the Purchasers or any Permitted
Transferees in respect of any such adjustment.
(c) Each Purchaser acknowledges and agrees that any additional units it may hold pursuant to
(vi)(a) and (vi)(b) above (A) shall be subject to the voting, waiver of liquidation, transfer
restrictions and adjustment provisions set forth in this Agreement, and (B) shall bear the legend
set forth in Section 8.A(i) below.
Section 2. Representations and Warranties of the Seller.
As a material inducement to the Purchasers to enter into this Agreement and purchase the
Founder’s Units, the Seller hereby represents and warrants to the Purchasers as of the date hereof
and the Closing Date that:
A. Organization and Corporate Power. The Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of Delaware. The
Seller possesses all requisite power and authority necessary to carry out the transactions
contemplated by this Agreement.
B. Authorization; No Breach.
(i) The execution and delivery of this Agreement and the Founder’s Warrants and performance of
this Agreement have been duly authorized by the Seller as of the Closing
Date. This Agreement constitutes the valid and binding obligation of the Seller, enforceable
in accordance with its terms.
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(ii) The execution and delivery by the Seller of this Agreement and the sale of each of the
Securities and the fulfillment of and compliance with the respective terms hereof and thereof by
the Seller, do not and will not as of the Closing Date (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 Seller’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 Formation of the
Seller or the bylaws of the Seller, or any material law, statute, rule or regulation to which the
Seller is subject, or any agreement, order, judgment or decree to which the Seller is subject,
except for any filings required after the date hereof under federal or state securities laws.
C. Title to Securities. Upon issuance in accordance with, and payment pursuant to,
the terms hereof and the Warrant Agreement, as the case may be, each of the Securities will be duly
and validly authorized, issued, fully paid and nonassessable. Upon issuance in accordance with,
and payment pursuant to, the terms hereof and the Warrant Agreement, as the case may be, the
Purchasers will have or receive good title to the Securities, 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 Purchasers.
D. Governmental Consents. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in connection with the
execution, delivery and performance by the Seller of this Agreement, or the consummation by the
Seller of any other transactions contemplated hereby.
Section 3. Representations and Warranties of the Purchaser.
As a material inducement to the Seller to enter into this Agreement and sell the Founder’s
Units, each Purchaser hereby represents and warrants to the Seller as of the date hereof and the
Closing Date that:
A. Capacity and State Law Compliance. Such Purchaser has engaged in the transactions
contemplated by this Agreement within a state in which the offer and sale of the Securities is
permitted under applicable securities laws. Such Purchaser understands and acknowledges that the
purchase of Shares upon the exercise of the Founder’s Warrants will require the availability of an
exemption from registration under federal and/or state securities laws and that any sale of such
Shares shall require registration or the availability of an exemption from registration under
federal and/or state securities laws.
B. Authorization; No Breach.
(i) This Agreement constitutes a valid and binding obligation of such Purchaser, enforceable
in accordance with its terms.
(ii) The execution and delivery by such Purchaser of this Agreement and the fulfillment of and
compliance with the respective terms hereof by such Purchaser do not and shall not as of the
Closing Date conflict with or result in a breach of the terms, conditions or
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provisions of any
agreement, instrument, order, judgment or decree to which such Purchaser is subject.
C. Investment Representations.
(i) Such Purchaser is acquiring the Securities for its own account, for investment only and
not with a view towards, or for resale in connection with, any public sale or distribution thereof.
(ii) Such Purchaser is an “accredited investor” as such term is defined in Rule 501(a)(3) of
Regulation D.
(iii) Such Purchaser understands that the Securities are being offered and will be sold to it
in reliance on specific exemptions from the registration requirements of the United States federal
and state securities laws and that the Seller is relying upon the truth and accuracy of, and such
Purchaser’s compliance with, the representations and warranties of such Purchaser set forth herein
in order to determine the availability of such exemptions and the eligibility of such Purchaser to
acquire such Securities.
(iv) Such Purchaser did not decide to enter into this Agreement as a result of any general
solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act of
1933, as amended (the “Securities Act”).
(v) Such Purchaser has been furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer and sale of the Securities which
have been requested by such Purchaser. Such Purchaser has been afforded the opportunity to ask
questions of the executive officers and directors of the Company. Such Purchaser understands that
its investment in the Securities involves a high degree of risk. Such Purchaser has sought such
accounting, legal and tax advice as such Purchaser has considered necessary to make an informed
investment decision with respect to such Purchaser’s acquisition of the Securities.
(vi) Such Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or endorsement of the
Securities or the fairness or suitability of the investment in the Securities by such Purchaser nor
have such authorities passed upon or endorsed the merits of the offering of the Securities.
(vii) Such Purchaser understands that: (a) the Securities have not been and are not being
registered under the Securities Act or any state securities laws, and may not be offered for sale,
sold, assigned or transferred unless (A) subsequently registered thereunder or (B) sold in reliance
on an exemption therefrom; and (b) except as specifically set forth in the Registration Rights
Agreement, neither the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder. In this regard, such Purchaser understands that the
Securities and Exchange Commission has taken the position that promoters or affiliates of a
blank check company and their transferees, both before and after a Business Combination, are deemed
to be “underwriters” under the Securities Act when reselling the securities of a blank
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check
company. Based on that position, Rule 144 adopted pursuant to the Securities Act would not be
available for resale transactions of the Securities despite technical compliance with the
requirements of such Rule, and the Securities can be resold only through a registered offering or
in reliance upon another exemption from the registration requirements of the Securities Act. Such
Purchaser is able to bear the economic risk of its investment in the Securities for an indefinite
period of time.
(viii) Such Purchaser has such knowledge and expertise in financial and business matters,
knows of the high degree of risk associated with investments generally and particularly investments
in the securities of companies in the development stage such as the Company, is capable of
evaluating the merits and risks of an investment in the Securities and is able to bear the economic
risk of an investment in the Securities in the amount contemplated hereunder. Such Purchaser 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 Securities. Such Purchaser can afford a complete loss of its investment in the Securities.
D. Waiver of Right to Amounts in the Trust Account and Indemnification.
(i) Such Purchaser hereby waives any and all right, title, interest or claim of any kind in or
to any distribution of the trust account established by the Company for the deposit of proceeds
from the Initial Public Offering and the sale of warrants in a private placement to occur
concurrently with the closing of the Initial Public Offering, as a result of any liquidation of the
trust account, with respect to the Founder’s Shares (“Claim”) and hereby waives any Claim it may
have in the future as a result of, or arising out of, any contracts or agreements with the Company
or the Seller and will not seek recourse against the trust account for any reason whatsoever except
for any amounts to which it may be entitled upon liquidation of the Company in respect of such
Purchaser’s ownership of Shares other than the Founder’s Shares.
(ii) Such Purchaser acknowledges and agrees that the stockholders of the Company, including
those who purchase the units in the Initial Public Offering, are and shall be third-party
beneficiaries of the foregoing provision of Section 3.D. of this Agreement.
(iii) Such Purchaser agrees that to the extent any waiver of rights under this Section 3.D. is
ineffective as a matter of law, such Purchaser has offered such waiver for the benefit of the
Company and the Seller as an equitable right that shall survive any statutory disqualification or
bar that applies to a legal right. Such Purchaser acknowledges the receipt and sufficiency of
consideration received from the Seller hereunder in this regard.
E. Extent of Representations and Warranties. Notwithstanding any other provision of
this Section 3, each representation and warranty made by the Purchasers hereunder should be deemed
to be made severally, and not jointly.
Section 4. Conditions of the Purchasers’ Obligations.
The obligation of each Purchaser to purchase and pay for the Founder’s Units is subject to the
fulfillment, on or before the Closing Date, of each of the following conditions:
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A. Representations and Warranties. The representations and warranties of the Seller
contained in Section 2, shall be true and correct at and as of the Closing Date as though then
made.
B. Performance. The Seller shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing Date.
C. No Injunction. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court
or governmental authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby, which prohibits the consummation of any of the
transactions contemplated by this Agreement or the Warrant Agreement.
Section 5. Conditions of the Seller’s Obligations.
The obligations of the Seller to the Purchasers under this Agreement are subject to the
fulfillment, on or before the Closing Date, of each of the following conditions:
A. Representations and Warranties. The representations and warranties of the
Purchasers contained in Section 3 shall be true and correct at and as of the Closing Date as though
then made.
B. Performance. Each Purchaser shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing Date.
C. No Injunction. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court
or governmental authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby, which prohibits the consummation of any of the
transactions contemplated by this Agreement or the Warrant Agreement.
Section 6. Survival of Representations and Warranties.
All of the representations and warranties contained herein shall survive the Closing Date.
Section 7. Definitions.
Terms used but not otherwise defined in this Agreement shall have the meaning assigned such
terms in the Registration Statement.
Section 8. Miscellaneous.
A. Legends; Transfer Restrictions.
(i) Legends. The certificates evidencing the Founder’s Units and the Founder’s Shares
will include the legend set forth on Exhibits B and C hereto, respectively,
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which each Purchaser has read and understands. The Founder’s Warrants and Shares issued upon
exercise of the Founder’s Warrants (as defined in the Warrant Agreement) will include the legend
set forth in Exhibit C to the Warrant Agreement in the case of the Warrants and in
the Warrant Agreement in the case of the Shares, which each Purchaser has read and understands.
(ii) Transfer Restrictions. By accepting the Securities, each Purchaser agrees, prior
to any transfer of the Securities, to give written notice to the Company expressing its desire to
effect such transfer and describing briefly the proposed transfer. Upon receiving such notice, the
Company shall present copies thereof to its counsel and each Purchaser agrees not to make any
disposition of all or any portion of the Securities unless and until:
(a) there is then in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with such registration statement,
in which case the legends set forth above with respect to the Securities sold pursuant to such
registration statement shall be removed; or
(b) if reasonably requested by the Company, (A) such Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition
will not require registration of such Securities under the Securities Act, (B) the Company shall
have received customary representations and warranties regarding the transferee that are reasonably
satisfactory to the Company signed by the proposed transferee and (C) the Company shall have
received an agreement by such transferee to the restrictions contained in the legends referred to
in (i) hereof.
Notwithstanding the foregoing, each Purchaser also understands and acknowledges that the
transfer of the Founder’s Units, Founder’s Shares and Founder’s Warrants and exercise of the
Founder’s Warrants are subject to the specific conditions to such transfer or exercise as outlined
herein and the Warrant Agreement as to which such Purchaser specifically assents by its execution
hereof.
(iii) Stop Transfer Notations. The Company may, from time to time, make stop transfer
notations in its records and deliver stop transfer instructions to its transfer agent to the extent
its counsel considers it necessary to ensure compliance with federal and state securities laws and
the transfer restrictions contained elsewhere in this Agreement and the Warrant Agreement.
B. Successors and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors of the parties hereto whether so
expressed or not. Notwithstanding the foregoing or anything to the contrary herein, the parties
may not assign this Agreement.
C. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
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D. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, none of which need contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same agreement.
E. Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of this Agreement. The
use of the word “including” in this Agreement shall be by way of example rather than by limitation.
F. Governing Law. This Agreement shall be deemed to be a contract made under the laws
of the State of New York and for all purposes shall be construed in accordance with the internal
laws of said State. Each of the parties hereto also irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim arising out of this Agreement or the transactions
contemplated hereby.
G. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and other communications
shall be sent:
If to the Seller:
|
HCM Acquisition Holdings LLC | |
| NexBank Tower | ||
| 00000 Xxxx Xxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Fax No. (000) 000-0000 | ||
With a copy (not constituting notice) to:
|
Xxx Xxxxxxxxxxx Xxxxxxx XxXxxxxxx LLP |
|
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Fax No.: (000) 000-0000 | ||
If to a Purchaser:
|
To the address set forth below such | |
| Purchaser’s name on the signature | ||
| pages hereto. |
or to such other address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
H. No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement on the date first
written above.
| SELLER: | ||||||
| HCM ACQUISITION HOLDINGS, LLC | ||||||
| By: | Highland Capital Management, L.P., | |||||
| its sole member | ||||||
| By: Strand Advisors, Inc., its general partner | ||||||
| By | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxx, President | |||||
| Title: | Strand Advisors, Inc., General Partner of Highland Capital Management, L.P. | |||||
| PURCHASERS: | ||||||
| By: | /s/ Xxxxxxx X. Xxx
|
|||||
| Xxxxxxx X. Xxx | ||||||
| Address: | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Address: | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
|||||
| Xxxxx X. Xxxxx | ||||||
| Address: | ||||||
| By: | /s/ Xxxxx X. Xxxx
|
|||||
| Xxxxx X. Xxxx | ||||||
| Address: | ||||||
[Signature
Page to Securities Purchase Agreement]
Exhibit A
| Purchaser | Shares Purchased | Purchase Price of Shares | ||||||
Xxxxxxx X. Xxx |
8,625 | $ | 30.00 | |||||
Xxxxx X. Xxxxxxxxx |
8,625 | $ | 30.00 | |||||
Xxxxx X. Xxxxx |
8,625 | $ | 30.00 | |||||
Xxxxx X. Xxxx |
8,625 | $ | 30.00 | |||||
Total |
34,500 | $ | 120.00 | |||||
Exhibit B
SPECIMEN OF UNIT CERTIFICATE
| No. | HCM ACQUISITION COMPANY Incorporated under the Laws of the State of Delaware |
UNIT(S) |
UNIT(S) EACH CONSISTING OF ONE SHARE OF COMMON STOCK AND ONE WARRANT TO
PURCHASE ONE SHARE OF COMMON STOCK
PURCHASE ONE SHARE OF COMMON STOCK
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT IS THE OWNER
OF UNIT(S). Each Unit
(“Unit”) consists of one (1) share of common stock, par value $0.001 per share (“Common Stock”), of
HCM Acquisition Company, a Delaware corporation (the “Corporation”), and one warrant (each, a
“Warrant”). Each Warrant entitles the holder to purchase one (1) share of Common Stock for $7.50
per share (subject to adjustment). The Common Stock and Warrant comprising each Unit represented
by this certificate are not transferable separately prior to the thirty-fifth day following the
date of the prospectus with respect to the Corporation’s initial public offering (the “IPO”) unless
Citigroup Global Markets Inc. informs the Corporation of its decision to allow earlier separate
transfer. The terms of the Warrants are governed by a warrant agreement (the “Warrant Agreement”)
between the Corporation and its transfer agent to be entered into upon the effectiveness of the
Corporation’s initial public offering, as amended, restated or supplemented from time to time, and
are subject to the terms and provisions contained therein, all of which terms and provisions the
holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement will
be on file at the office of the Corporation, and will be available to any Warrant holder on written
request and without cost.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE
ALSO SUBJECT TO FORFEITURE AND ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE PURSUANT TO A SECURITIES
PURCHASE AGREEMENT DATED [• ], 2007, A COPY OF WHICH CAN BE OBTAINED FROM THE CORPORATION AT
ITS EXECUTIVE OFFICES.
SECURITIES EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER A
REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE CORPORATION.
WITNESS the seal of the Corporation and the facsimile signature of its duly authorized officer.
Dated: , 2007
| HCM ACQUISITION COMPANY | Authorized Officer | |||
| CORPORATE SEAL | ||||
| Delaware |
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM
|
as tenants in common | UNIF GIFT MIN ACT- | Custodian | |||||||
TEN ENT
|
tenants by the entireties | (Cust) (Minor) | ||||||||
| JT TEN | as joint tenants with right of | Under Uniform Gifts to Minors | ||||||||
| survivorship and not as tenants | Act | |||||||||
| in common | (State) |
|||||||||
Additional abbreviations may also be used though not in the above list.
HCM ACQUISITION COMPANY
The Corporation will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, option or other special rights of each class
of stock or series thereof of the Corporation and the qualifications, limitations, or restrictions
of such preferences and/or rights. This certificate and the Units represented hereby are issued
and shall be held subject to the terms and conditions applicable to the securities underlying and
comprising the Units.
For Value Received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
IDENTIFYING NUMBER OF ASSIGNEE
Units represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney, to transfer the said Units on the books of the within named Corporation
with full power of substitution in the premises.
Dated
|
By: | |||||
| NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. |
Exhibit C
SPECIMEN FOUNDER’S COMMON STOCK CERTIFICATE
| NUMBER | SHARES |
HCM ACQUISITION COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
CERTAIN DEFINITIONS
This Certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.001
EACH OF THE COMMON STOCK OF
EACH OF THE COMMON STOCK OF
HCM ACQUISITION COMPANY
transferable on the books of the Corporation in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. Witness the seal of the Corporation and the
facsimile signatures of its duly authorized officers.
Dated:
|
HCM Acquisition Company | ||
| CORPORATE DELAWARE | |||
| SEAL |
| DELAWARE |
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as
though they were written out in full according to applicable laws or regulations:
TEN COM
|
as tenants in common | UNIF GIFT MIN ACT- | Custodian | |||||||
TEN ENT
|
as tenants by the entireties | (Cust) | (Minor) | |||||||
| JTTEN | as joint tenants with right of | under Uniform Gifts to Minors Act | ||||||||
| survivorship and not as tenants | ||||||||||
| in common | (State) |
|||||||||
Additional Abbreviations may also be used though not in the above list.
HCM Acquisition Company
The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class of stock or series thereof of the
Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate
and the shares represented hereby are issued and shall be held subject to all the provisions of the Certificate of
Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of shares
of Preferred Stock (copies of which may be obtained from the secretary of the Corporation), to all of which the
holder of this certificate by acceptance hereof assents.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO (i) FORFEITURE, (ii) ADDITIONAL RESTRICTIONS ON TRANSFER OR SALE
AND (iii) VOTING REQUIREMENTS AND HOLDERS OF THE SECURITIES WAIVING ANY RIGHT TO PARTICIPATE IN A LIQUIDATION
DISTRIBUTION IN CERTAIN CIRCUMSTANCES, IN EACH CASE PURSUANT TO A
SECURITIES PURCHASE AGREEMENT DATED [• ],
2007, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE OFFICES.
SECURITIES EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS
AGREEMENT TO BE EXECUTED BY THE CORPORATION.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL
|
||
SECURITY OR OTHER
|
||
IDENTIFYING |
||
NUMBER OF ASSIGNEE |
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
| shares | ||||
| of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint | ||||
| Attorney | ||||
| to transfer the said stock on the books of the within named Corporation will full power of substitution in the premises. | ||||
Dated
Signature(s) Guaranteed: |
||
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). |
Exhibit D
WARRANT AGREEMENT
