STOCK PURCHASE AGREEMENT
STOCK
PURCHASE AGREEMENT (this “Agreement”) made as of this 18th day of December, 2008
between and among GMS Acquisition Partners Holdings, LLC (“Buyer”) and the
signatory on the execution page hereof (the “Seller”).
WHEREAS,
Vector Intersect Security Acquisition Corp. (“Vector”) was organized in order to
serve as a vehicle for the acquisition of an operating business through a
merger, capital stock exchange, asset acquisition or other similar business
combination (“Business Combination”);
WHEREAS,
Vector consummated an initial public offering in May 2007 (“IPO”) in connection
with which it raised net proceeds of approximately $58.0 million which were
placed in a trust account (the “Trust Account”) pending the consummation of a
Business Combination, or the dissolution and liquidation of Vector, in the event
it is unable to consummate a Business Combination by May 2009.
WHEREAS,
Vector has agreed to acquire (the “Acquisition”) Cyalume Technologies, Inc.
(“Cyalume”) pursuant to that certain Stock Purchase Agreement, dated as of
February 14, 2008, as amended, between Vector, a subsidiary of Vector, Cyalume
and the sole stockholder of Vector (as amended, the “Purchase
Agreement”).
WHEREAS,
Vector is holding its Special Meeting of stockholders relating to the
Acquisition on December 19, 2008 (as such meeting may be adjourned, the “Special
Meeting”).
WHEREAS,
a holder of shares of Vector's common stock issued in the IPO may, if s/he/it
votes against the Acquisition, demand that Vector convert such common shares
into cash (“Conversion Rights”).
WHEREAS,
the consummation of the Acquisition is subject to the exercise of Conversion
Rights by holders of less than 20% of the Vector common stock issued in the
IPO.
WHEREAS,
Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller
the number of common shares set forth on the execution page of this Agreement
(“Shares”) for the purchase price per share set forth therein (“Purchase Price
Per Share”) and for the aggregate purchase price set forth therein.
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 sells to Buyer and Buyer hereby purchases from Seller on the Trade Date
(as defined below) the Shares for the aggregate consideration set forth on the
execution page of this Agreement (the “Aggregate Purchase Price”).
2. Agreement not to
Convert. In further consideration of the Aggregate Purchase
Price, the Seller hereby agrees he/it has not and will not exercise his/its
Conversion Rights.
3. Trade and Settlement.
The Shares will trade on December 18, 2008 (the “Trade Date”) and the settlement
of the purchase of the Shares (the “Settlement”) will take place on December 22,
2008, provided, however, that the Settlement shall not take place if the
Acquisition does not close on December 19, 2008 unless the Special Meeting shall
be adjourned, in which case it shall be extended by the number of days of the
adjournment (the “Acquisition Closing Date”) and this Agreement will be
terminated pursuant to the provisions of Section 6. 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 Trade
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.
3.1 Upon
the Settlement (assuming the settlement occurs), Buyer shall deliver or cause to
be delivered to the Seller payment by wire transfer of immediately available
funds the Purchase Price in accordance with Section 1 of this Agreement against
book entry transfer of the ownership of the Shares from Seller to Buyer. The Shares transferred to the Buyer under this Agreement
shall be free and clear of any liens and other encumbrances. Unless
the Settlement does not occur in accordance with the terms of this
Agreement, the Seller acknowledges that the
Seller will not be deemed the holder of the Shares from the Trade Date through
the Acquisition Closing Date.
3.2 Buyer
hereby covenants and agrees that following the Trade Date it shall comply with
the filing obligations with respect to its ownership of the Shares under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
4.
Representations and
Warranties of the Seller.
4.1 The
Seller hereby represents to Buyer on the date hereof and on the Trade Date
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 Vector, Buyer, or any of their officers, directors or employees or any
other representatives or agents of Buyer or Vector, except as provided herein or
in the filings made by Vector with the United States Securities and Exchange
Commission (the “SEC”) prior to the date hereof pursuant to the Exchange Act and
the Securities Act of 1933 (the “Securities Act”). The Seller has had
access to and reviewed all of the filings made by Vector with the United States
Securities and Exchange Commission (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.
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(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/it 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.
(e) Long Position in the
Shares. The Seller has a long position in the Shares and does not have a
short position in Vector’s securities.
(f) Stock Ownership. The
Seller owns the Shares free and clear of any liens, pledge, charge, security
interest or encumbrance. The Shares are not subject to (i) any agreement to give
any of the foregoing, (ii) any conditional sale, or (iii) any voting
agreement.
5.
Representations and
Warranties of Buyer.
5.1 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. Buyer 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..
(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. For the
avoidance of doubt, Buyer does not represent or warrant whether or not the
disclosure made by Vector in connection with the Acquisition or the transactions
contemplated hereby are sufficient or otherwise in compliance with applicable
laws, rules and regulations.
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(d) No Legal Advice from
Seller. Buyer acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with Buyer’s own
legal counsel and investment and tax advisors. Buyer is relying solely on such
counsel and advisors and not on any statements or representations of Seller 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.
6. Termination.
Notwithstanding any provision in this Agreement to the contrary, this Agreement
shall become null and void and of no force and effect (without any action
required by any party hereto) if the Acquisition
is not consummated on the Acquisition Closing Date. Upon the termination of this
Agreement, the Settlement shall not be consummated and the Seller shall have all
right, title and interest in and to the Shares and the Buyer will have no rights
whatsoever in or with respect to the Shares. Except for the
Seller’s right to the Shares upon the termination of this
Agreement in accordance with its terms, the Seller acknowledges and
agrees that it will have no recourse whatsoever against the Buyer in the event
that this Agreement is terminated. In the event that the trade of the
Shares discussed in this Agreement does not settle, the Seller shall
be entitled to exercise all liquidation rights and Conversion Rights applicable
to the Shares and entitled to receive from Vector all distributions attributable
to the Shares.
7. 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.
8. 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.
9. 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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10. 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. For the avoidance of doubt, Seller
shall not have the right for or to request the specific performance of the
Buyer’s obligations hereunder if that the Acquisition is not consummated by the
Acquisition Closing Date.
11. 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.
12. 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.
[remainder of page left intentionally
blank; signature page follows]
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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:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Chief Executive Officer
Address:
[●]
[SELLER]
_________________________________ Retirement
Plan for Employees of Union Carbide Corporation and its Participating
Subsidiary Companies Plan
By
Wellington Management Company, LLP, as Investment Adviser
By: /s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
Address:
c/o
Wellington Management Company, LLP
00
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx
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Purchase
Price Per Share $8.01
Number of
Shares to be Purchased 91,500
Aggregate
purchase price to be paid by Buyer $732,915.00
Trade
Date 12-18-2008
Settlement
T+3
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