STOCK PURCHASE AGREEMENT
Exhibit 10.1
STOCK PURCHASE AGREEMENT (this “Agreement”) made as of this ___ day of August, 2009 between and among InterAmerican Acquisition Group Inc. (“Buyer” or “InterAmerican”) and the signatory on the execution page hereof (the “Seller”).
WHEREAS, InterAmerican was organized for the purpose of acquiring an operating business (a “Business Combination”);
WHEREAS, InterAmerican consummated an initial public offering in September 2007 (“IPO”) in connection with which it raised net proceeds of approximately $45.2 million that were placed in a trust account pending the consummation of a Business Combination, or the dissolution and liquidation of InterAmerican, in the event it is
unable to consummate a Business Combination by September 10, 2009.
WHEREAS, InterAmerican has agreed to acquire (the “Acquisition”) Sing Kung Limited pursuant to certain agreements (the “Transaction Agreements”).
WHEREAS, the approval of the Acquisition is contingent upon, among other things, the affirmative vote of holders of majority of InterAmerican’s outstanding ordinary shares which are present and entitled to vote at the meeting.
WHEREAS, pursuant to certain provisions in InterAmerican’s amended and restated memorandum and articles of association, a holder of ordinary shares of InterAmerican issued in the IPO may, if s/he/it votes against the Acquisition, demand that InterAmerican convert such ordinary shares into cash (“Conversion Rights”).
WHEREAS, the Acquisition is subject to the exercise of Conversion Rights by holders of less than 20% of the InterAmerican ordinary shares issued in the IPO.
WHEREAS, Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller the shares of common stock set forth on the execution page of this Agreement (“Shares”) for the purchase price per share set forth thereon, less any dividend paid to Seller on such Shares prior to the Closing (as defined below) (“Purchase
Price Per Share”) and for the aggregate purchase price set forth thereon, less any dividend paid to Seller on such Shares prior to the Closing (“Aggregate Purchase Price”). Seller hereby waives any right, title or interest in or to any dividend payable on the shares of Buyer’s common stock after the Closing.
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. Seller hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller at the Closing (as defined below) the Shares for the Aggregate Purchase
Price.
2. Agreement not to Convert; Appointment of Attorney in Fact. In further consideration of the Aggregate Purchase Price, the Seller hereby agrees it has not and
will not
exercise its Conversion Rights. Solely with respect to the vote for the Acquisition and related proposals (as contemplated by the Proxy Statement), the Seller hereby irrevocably appoints _____________ and ___________ and each of them, each with full power of substitution, to the full extent of such Seller’s rights with respect to the
Shares (and any and all other Shares or securities or rights issued or issuable in respect thereof) to vote in such manner as each such attorney and proxy or his substitute shall in his sole discretion deem proper, and otherwise act (including without limitation pursuant to written consent) with respect to all the Shares sold hereunder which such Seller is entitled to vote at any meeting of stockholders (whether annual or special and whether or not an adjourned meeting) of InterAmerican held on or prior to September
11, 2009. This proxy is coupled with an interest in InterAmerican and in the Shares and is irrevocable. The execution of this Agreement shall revoke, without further action, all prior proxies granted by the Seller at any time with respect to such Shares (and any such other Shares or other securities) and no subsequent proxies will be given (and if given will be deemed not to be effective) with respect thereto by the Seller.
2.1 Closing. The closing of the purchase of the Shares (“Closing”) by Buyer will occur on or before September 11, 2009 (the “Closing Date”). The
Closing shall be effected delivery versus payment via the Depository Trust Company. It shall be a condition to the obligation of Buyer on the one hand and the Seller on the other hand, to consummate the transfer of the Shares contemplated hereunder that the other party’s representations and warranties are true and correct on the Closing Date with the same effect as though made on such date, unless waived in writing by the party to whom such representations and warranties are made.
2.2 At or before the Closing, the Seller shall deliver or cause to be delivered to Buyer appropriate instructions for book entry transfer of ownership of the Shares from the Seller to Buyer. In addition, within two business days
of the date of this Agreement, the Seller shall provide the Buyer with a true and correct copy of the voting information form with respect to the Shares held by the Seller indicating the financial institution through which such shares are held and the control number provided by Broadridge Financial Solutions regarding the voting of such Shares or written confirmation of such information as would appear on the voting information form.
2.3 At or before the Closing, Buyer shall deliver or cause to be delivered to the Seller payment by wire transfer of immediately available funds the Aggregate Purchase Price in accordance with Section 1 of this Agreement.
3. Representations and Warranties of the Seller.
3.1 The Seller hereby represents and warrants to Buyer on the date hereof and on the date of the Closing that:
(a) Sophisticated Seller. The Seller is sophisticated in financial matters and is able to evaluate the risks and benefits attendant to the sale of Shares to Buyer.
(b) Independent Investigation. The Seller, in making the decision to sell the Shares to Buyer, has not relied upon any oral or written representations or assurances from
InterAmerican, Buyer, or any of their officers, directors or employees or any other
representatives or agents of Buyer or InterAmerican, except as are contained in this Agreement. The Seller has had access to and reviewed all of the filings made by InterAmerican with the United States Securities and Exchange Commission (the “SEC”), pursuant to the Exchange Act and the Securities Act of 1933 (the “Securities
Act”), in each case to the extent available publicly accessible via the SEC’s Electronic Data Gathering, Analysis and Retrieval system.
(c) Authority. This Agreement has been validly authorized, executed and delivered by the Seller and, assuming the due authorization, execution and delivery thereof by Buyer,
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. The execution, delivery and performance of this Agreement by the Seller 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 the Seller is a party which would prevent the Seller
from performing its obligations hereunder or (ii) any law, statute, rule or regulation to which the Seller is subject.
(d) No Legal Advice from Buyer. The Seller acknowledges that he has had the opportunity to review this Agreement and the transactions contemplated by this Agreement with
the Seller’s own legal counsel and investment and tax advisors. The Seller is relying solely on such counsel and advisors and not on any statements or representations of Buyer 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.
4. Representations and Warranties of Buyer.
4.1 Buyer hereby represents to the Seller that:
(a) Sophisticated Buyer. The Buyer is sophisticated in financial matters and is able to evaluate the risks and benefits attendant to the sale of Shares by Seller.
(b) Independent Investigation. Buyer, in making the decision to purchase the Shares from Seller, has not relied upon any oral or written representations or assurances from
the Seller or any of its officers, directors, partners or employees or any other representatives or agents of the Seller, except as are contained in this Agreement. Buyer has had access to all of the filings made by InterAmerican with the SEC pursuant to the Exchange Act and the Securities Act.
(c) Authority. This Agreement has been validly authorized, executed and delivered by Buyer and, assuming the due authorization, execution and delivery thereof by the Seller,
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. The execution, delivery and performance of this Agreement by Buyer 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 Buyer is a party which would prevent Buyer from performing
its obligations hereunder or (ii) any law, statute, rule or regulation to which Buyer is subject.
5. Termination. Notwithstanding any provision in this Agreement to the contrary, this Agreement shall become null and void and of no force and effect upon the earlier of (a)
the termination of the Transaction Agreements prior to the consummation of the transactions contemplated thereby and (b) 11:59 p.m. eastern standard time on September 11, 2009 if the Acquisition has not been consummated by such date.
6. 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.
7. 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.
8. 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.
9. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors
and permitted assigns. This Agreement shall not be assigned by either party without the prior written consent of the other party hereto.
10. Entire Agreement; Changes in Writing. 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.
By:
Name:
Title:
[SELLER]
By:
Name:
Title:
Address:
Purchase Price Per Share: $________
Number of Shares: _______________
Aggregate Purchase Price: $________
