STOCK PURCHASE AGREEMENT
Exhibit
10.10
STOCK PURCHASE AGREEMENT (this “Agreement”) made as of this [___]st day of September, 2009
between Xxxxx Acquisition Company I, Inc., a Delaware corporation (“Buyer” or “HACI”), the
signatory on the execution page hereof (“Seller”).
WHEREAS, Buyer was organized for the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition or other similar business combination, an operating business (“Business
Combination”); and
WHEREAS, Buyer consummated an initial public offering in October, 2007 (“IPO”) in connection
with which it raised net proceeds of approximately $529.1 million, a significant portion of which
was placed in a trust account (the “Trust Account”) maintained by Continental Stock Transfer and
Trust Company (“Trustee”) pending the consummation of a Business Combination, or the dissolution
and liquidation of Buyer in the event it is unable to consummate a Business Combination on or prior
to September 28, 2009 (or October 5, 2009 in the event that the Acquisition is approved by Buyer
stockholders); and
WHEREAS, Buyer has entered into that certain Purchase and IPO Reorganization Agreement dated
as of August 2, 2009, by and among HACI, Resolute Energy Corporation, a Delaware corporation (the
“REC”), Resolute Subsidiary Corporation, a Delaware corporation, Resolute Aneth, LLC, a Delaware
limited liability company, Resolute Holdings, LLC, a Delaware limited liability company, Resolute
Holdings Sub, LLC, a Delaware limited liability company (“Holdings Sub”), and HH-HACI, L.P., a
Delaware limited partnership (the “Acquisition Agreement”), pursuant to which, through a series of
transactions, HACI stockholders will acquire a majority of the outstanding common stock of REC, par
value $0.0001 per share (the “REC Common Stock”), and REC will acquire HACI and the business and
operations of Holdings Sub (collectively, the “Acquisition”); and
WHEREAS, the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding common shares of HACI at the special
meeting called to approve the Acquisition; and
WHEREAS, pursuant to certain provisions in Buyer’s certificate of incorporation, a holder of
shares of Buyer’s common stock issued in the IPO may, if it votes against the Acquisition, demand
that Buyer convert such common shares into cash (“Conversion Rights”); and
WHEREAS, the Acquisition cannot be consummated if holders of 30% or more of HACI common stock
issued in the IPO exercise their Conversion Rights; and
WHEREAS, Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller the
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 (“Aggregate Purchase Price”).
NOW, THEREFORE, for and in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
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1. Purchase. Subject to Section 8, Seller hereby agrees to sell to Buyer and
Buyer hereby agrees to purchase from Seller at the Closing (as defined in Section 4(c)) the
Shares at the Purchase Price Per Share, for the Aggregate Purchase Price.
2. Agreement not to Convert; Appointment of Proxy and Attorney-in-Fact. In further
consideration of the Aggregate Purchase Price, provided that the representations and warranties
made by Buyer in Section 6 hereof are true and correct in all material respects on the date
of the stockholder meeting in connection with the approval of the Acquisition with the same effect
as though made on such date and Buyer has complied in all material respects with its obligations
set forth in this Agreement through such date, Seller hereby agrees it has not and will not
exercise its Conversion Rights or, if it has already exercised its Conversion Rights, it hereby
withdraws and revokes such exercise and will execute all necessary documents and take all actions
required in furtherance of such revocation. Seller acknowledges that the record date to vote on
the proposals set forth in the proxy statement/prospectus (the “Proxy Statement”) filed by Buyer
with the U.S. Securities and Exchange Commission (the “SEC”) has passed. Accordingly, solely with
respect to the vote for the Acquisition and the other proposals set forth in the Proxy Statement,
Seller hereby agrees to upon request of Buyer vote in favor of the Acquisition and such other
proposals and appoints Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx and each of them each with full power
of substitution, as his proxy and attorney-in-fact, to the full extent of 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 person or his substitute shall in his sole
discretion deem proper, and to otherwise act (including without limitation acting by written
consent) with respect to all the Shares at any meeting of stockholders (whether annual or special
and whether or not an adjourned meeting) of Buyer held on or prior to September 28, 2009. This
proxy is coupled with an interest in the Shares and is irrevocable. Execution by Seller of this
Agreement shall revoke, without further action, all prior proxies granted by Seller at any time
with respect to the Shares (and such other shares or other securities), and no subsequent proxies
will be given by Seller (and if given will be deemed not to be effective), provided that the
representations and warranties made by Buyer in Section 6 hereof are true and correct in
all material respects on the date of the stockholder meeting in connection with the approval of the
Acquisition with the same effect as though made on such date and Buyer has complied in all material
respects with its obligations set forth in this Agreement through such date. This section 2 shall
be governed by the laws of the State of Delaware.
3. No Right to Additional Shares. HACI’s stockholders of record are entitled to
receive one share of REC Common Stock for each share of HACI common stock owned immediately prior
to the consummation of the Acquisition (the “Exchange”). Although Seller will be a stockholder of
record immediately prior to the Acquisition, Seller hereby acknowledges that Seller irrevocably
waives any right, title or interest it may have in receiving any such REC Common Stock distributed
pursuant to the Exchange. Seller hereby acknowledges that by virtue of the sale hereunder, Seller
will not become a stockholder of REC, and the Shares shall automatically be cancelled and shall
cease to exist and shall represent only the right to receive the Aggregate Purchase Price therefor
in accordance with the terms of this Agreement. Additionally, each of Buyer and Seller hereby agree
and acknowledge that this provision is material to this Agreement and a significant consideration
in Buyer’s willingness to enter into this Agreement. Notwithstanding the foregoing, such waiver
shall not be effective in the event that Seller does not receive the Aggregate Purchase Price
pursuant to the terms of this Agreement.
4. Closing Matters.
(a) Within one business day of the date of this Agreement, (i) Seller shall provide Buyer with
a true and correct copy of the voting instruction form with respect to the Shares held by Seller
indicating the financial institution through which such shares are held and the control number
provided by Broadridge Financial Solutions (or other similar service provider) regarding the
voting of the
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Shares or written confirmation of such information as would appear on the voting
instruction form; and (ii) Buyer shall send the notice attached as Annex I hereto to
Trustee.
(b) Prior to the Closing, Seller shall deliver or cause to be delivered to Buyer appropriate
instructions for book entry transfers of ownership of the Shares from Seller to Buyer.
(c) The closing of the purchase and sale of the Shares (“Closing”) will occur on the date on
which Buyer’s Trust Account is liquidated in connection with the consummation of the Acquisition,
which shall occur no later than 11:59 p.m. eastern daylight time on September 28, 2009 (or 11:59
p.m. eastern daylight time on September 30, 2009 in the event that the Acquisition is approved by
Buyer stockholders) (the “Closing Date”). At the Closing, Buyer shall pay Seller the Aggregate
Purchase Price by wire transfer from HACI’s Trust Account of immediately available funds in
accordance with the Irrevocable Instructions attached as Annex I hereto to an account
specified by Seller and Seller against delivery of the Shares shall deliver the Shares to Buyer
electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System
to an account specified by Buyer. It shall be a condition to the obligation of Buyer on the one
hand and 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.
(d) In the event that the Acquisition is not consummated by 11:59 p.m. eastern daylight time
on September 28, 2009 (or 11:59 p.m. eastern daylight time on September 30, 2009 in the event that
the Acquisition is approved by Buyer stockholders) and Buyer has not dissolved and liquidated its
assets by September 30, 2009, then Buyer shall pay to Seller in immediately available funds, until
Buyer liquidates and distributes its assets to its stockholders, an amount equal to the lesser of
(i) 4.0% of the Purchase Price Per Share per month (pro-rated on a daily basis based on the date
when payment is required and the date such payment is made) or (ii) the highest lawful rate, for
each Share held by Seller from the date such payment was required to be made through the date such
payment is actually made. Buyer agrees to promptly dissolve and liquidate and distribute its
assets in accordance with Delaware law if the Acquisition is not consummated by 11:59 p.m. eastern
daylight time on September 28, 2009 (or 11:59 p.m. eastern daylight time on September 30, 2009 in
the event that the Acquisition is approved by Buyer stockholders).
(e) In the event that the Acquisition is consummated and Seller has not received the Aggregate
Purchase Price by September 30, 2009, then Buyer shall pay to Seller in immediately available funds
an amount equal to the lesser of (i) 4.0% of the Purchase Price Per Share per month (pro-rated on a
daily basis based on the date when payment is required and the date such payment is made) or (ii)
the highest lawful rate, for each Share held by Seller from the date such payment was required to
be made through the date such payment is actually made.
5. Representations and Warranties of the Seller. Seller makes the following
representations and warranties to and for the benefit of Buyer on the date hereof and on the
Closing.
(a) Sophisticated Seller. 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. Seller, in making the decision to sell the Shares to
Buyer, has not relied upon any oral or written representations or assurances from Buyer or any of
its officers, directors or employees or any other representatives or agents of Buyer, except as are
contained in this Agreement. Seller has had access to all of the filings made by HACI with
the SEC, pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) and the Securities
Act of 1933, as
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amended (the “Securities Act”) in each case to the extent available publicly via
the SEC’s Electronic Data Gathering, Analysis and Retrieval system.
(c) Authority. This Agreement has been validly authorized, executed and delivered by
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 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 Seller is a party which would prevent Seller from
performing its obligations hereunder or (ii) any law, statute, rule or regulation to which Seller
is subject.
(d) No Legal Advice from Buyer. Seller acknowledges that it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement with Seller’s own
legal counsel and investment and tax advisors. Seller is not relying 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 the Agreement. Seller
represents, warrants and covenants that any actions that it takes with respect to common stock of
Buyer will be in compliance with applicable securities laws.
(e) Ownership of Shares. Seller is the legal and beneficial owner of the Shares and
will transfer to Buyer on the Closing Date good title to the Shares free and clear of any liens,
claims, security interests, options, charges or any other encumbrance whatsoever, except as
otherwise agreed to in writing to Buyer. Seller has the sole right to exercise Conversion Rights
with respect to the Shares.
(f) Number of Shares. The Shares being transferred pursuant to this Agreement
represent all the common stock owned by Seller as of the date hereof.
(g) Aggregate Purchase Price Negotiated. Seller represents that both the amount of
Shares and the Aggregate Purchase Price were negotiated figures by the parties and that the terms
and conditions by the parties of this Agreement may differ from arrangements entered into with
other holders of Buyer’s common stock.
(h) Seller Taxes. Seller understands that Seller (and not the Buyer) shall be
responsible for any and all tax liabilities of Seller that may arise as a result of the
transactions contemplated by this Agreement.
6. Representations, Warranties and Covenants of Buyer. Buyer makes the following
representations, warranties and covenants to and for the benefit of Seller on the date hereof and
on the Closing.
(a) Sophisticated Buyer. Buyer is sophisticated in financial matters and is able to
evaluate the risks and benefits attendant to the purchase of Shares from 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 Seller or
any of its officers, directors, partners or employees or any other representatives or agents
of Seller, except as are contained in this Agreement.
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(c) Authority. This Agreement has been validly authorized, executed and delivered by
Buyer and assuming the due authorization, execution and delivery thereof by Seller, is a valid and
binding agreement of Buyer enforceable against Buyer 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.
(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.
(e) Organization. Buyer has been duly organized and is validly existing under the
laws of its jurisdiction of organization, with all requisite power and authority to enter into this
Agreement, to carry out the provisions and conditions hereof, and to consummate the transactions
contemplated hereby.
(f) Liabilities. Buyer (i) has no liabilities, obligations, guarantees or commitments
of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued
or unaccrued, matured or unmatured or otherwise (“Liabilities”) other than those reflected on the
Schedule of Liabilities attached hereto, and (ii) has no outstanding Liabilities that are not
subject to an effective waiver of claims against the Trust Account, except those Liabilities set
forth on such Schedule of Liabilities and indicated as “unwaived,” which Schedule of Liabilities
includes all Liabilities that resulted from, and potential Liabilities that could result from,
target businesses, vendors and service providers that have not waived any claims against the Trust
Account..
(g) Title and Liens. (i) Buyer has good title to the Trust Account and all assets in,
or credited to, in the Trust Account, and (ii) the Trust Account, together with all assets in, or
credited to, the Trust Account, are free and clear of any security interest, mortgage, pledge,
lien, charge, encumbrance, title retention agreement or analogous instrument or device (a “Lien”)
other than the Lien in favor of Trustee for the customary fees and expenses of Trustee incurred in
connection with the administration of the Trust Account, and (iii) Buyer has not and will not
create, incur, or suffer to exist any Lien on the Trust Account or any asset in or credited to the
Trust Account, whether arising by contract or agreement or under law.
(h) Waivers of Claims Against Trust Account. Except as otherwise disclosed on the
Schedule of Liabilities described in Section 6(f) above, Buyer has not obtained and agrees that it
will not obtain, the services of any vendor or service provider unless and until such vendor or
service provider acknowledges in writing that it does not have any right, title, interest or claim
of any kind in or to any monies, securities, or other assets of the Trust Account and waives any
claim it may have in the future as a result of, or arising out of, any negotiations, contracts or
agreements with Buyer and will not seek recourse against the Trust Account for any reason
whatsoever; provided that the foregoing shall not apply to Buyer’s independent accountants. In
addition, the waiver of claims against
the Trust Account agreed to by Buyer and REC in the Acquisition Agreement shall remain in full
force and effect.
(i) Future Indebtedness. Buyer agrees that it shall not incur any Indebtedness (as
defined below) in excess of $50,000 in the aggregate, other than Indebtedness listed on
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Schedule I
attached hereto, without the prior written consent of Seller prior to the Closing. “Indebtedness”
means (i) indebtedness for borrowed money or the deferred price of property, goods or services
(other than trade and other payables incurred in the ordinary course of business), such as
reimbursement and other obligations for surety bonds and letters of credit, (ii) obligations
evidenced by notes, bonds, debentures or similar instruments, (iii) capital lease obligations, (iv)
the net obligations of SPAC under derivative transactions (including, but not limited to, under
swap agreements) or commodity transactions, and (v) any other operating expenses or other
obligations incurred by Buyer; and (vi) obligations of Buyer under a guarantee of debt of others of
the kinds referred to in clauses (i) through (v) above. Notwithstanding anything to the contrary in
this Agreement, “Indebtedness” shall not mean or include (i) any contracts or arrangements of SPAC
to purchase additional shares of its common stock using proceeds held in the Trust Account, (ii)
any taxes owed to any federal, state or local taxing authority and (iii) the payment of any
Conversion Rights.
(j) Trust Account. Buyer confirms that at least $539,213,757.49 (less any taxes owed)
is held in the Trust Account. Buyer covenants that the value of the Trust Account, as of any date
of determination, shall not be less than $9.76 (less any taxes owed) per Share and shall grant
Seller view-only Internet access to the Trust Account to confirm such value. The Indebtedness set
forth on Schedule I shall be subordinated in payment and performance to the obligation to pay
Seller pursuant to this Agreement in a manner reasonably acceptable to Seller.
(k) Irrevocable Instructions to Trustee. Upon execution of this Agreement, Buyer is
delivering the Irrevocable Instructions attached as Annex I to Trustee to Continental
requiring that no funds be released from the Trust Account unless the amounts released from the
Trust Account are used to pay in full the amount due to the Seller under this Agreement prior to
release of any fund from the Trust Account to Buyer or any other party and Continental has
acknowledged and agreed to such Irrevocable Instructions. Seller hereby agrees and consents to the
terms of such irrevocable instruction letter. Buyer shall deliver a copy of such Irrevocable
Instructions to Seller upon execution of this Agreement. Buyer agrees that it will not enter into
an agreement for a replacement of Trustee as trustee in connection with the Trust Account unless
and until Buyer, such substitute trustee, and any other required signatory shall first deliver to
the Seller fully executed Irrevocable Instructions substantially in the form attached as Annex
I hereto together with all other instructions executed by Trustee and Buyer in connection with
transfer of any funds in the Trust Account. Upon the replacement of Trustee, all references herein
to Trustee will be to the substitute trustee. The Company shall not provide any instructions with
respect to the distribution of the Trust Account that are different from the Irrevocable
Instructions without the consent of Seller and all signatories to the Irrevocable Instructions;
provided, however, upon written confirmation of Trustee’s compliance with the
irrevocable instruction letter and payment of the Aggregate Purchase Price to Seller, Buyer may
liquidate the Trust Account without further regard to this letter or such irrevocable instructions.
(l) Investments. From the date of this Agreement until all amounts due to the Seller
are paid, Buyer agrees to invest the monies in the Trust Account invested in money market funds
meeting certain conditions under Rule 2a-7 under the Investment Company Act or in cash.
(m) Filings. None of the filings and reports made by Buyer with SEC and available on
the SEC’s XXXXX system, as of their respective filing dates, will contain any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading.
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7. Indemnification.
(a) In the event that the Aggregate Purchase Price is not fully paid to Seller at (a) the
Closing or (b) if the Acquisition is not consummated, upon the liquidation of Buyer while Seller
owns any Shares, Buyer hereby agrees to indemnify and hold harmless Seller against any loss
incurred in an amount equal to the difference between (i) the sum of the Aggregate Purchase Price
and the Reimbursable Expenses (as defined in Section 10 hereof), minus (ii) the amount
received by Seller from Buyer, plus any default payments incurred pursuant to Section 4(d)
and 4(e) hereof. Buyer agrees to pay any and all costs, fees and expenses (including
counsel fees and expenses) incurred by Seller in enforcing its rights under this Section
7(a).
(b) Buyer hereby agrees to indemnify and hold harmless Seller and each of its partners,
principals, members, officers, directors, employees, agents, representatives and affiliated or
managed funds from and against any and all losses, claims, damages, liabilities and expenses, joint
or several, of any kind or nature whatsoever, and any and all actions, inquiries, proceedings and
investigations in respect thereof (including any proceeding by any government subdivision and any
claim by any former or current securityholder of Buyer), whether pending or threatened, to which
any such party may become subject, arising in any manner out of or in connection with this
Agreement or the transactions contemplated herein to the fullest extent permitted under applicable
law regardless of whether any of such parties is a party hereto and immediately upon request
reimburse such party for such party’s legal and other expenses as they are incurred in connection
with investigating, preparing, defending, paying, settling or compromising any such action,
inquiry, proceeding or investigation (including, without limitation, usual and customary per diem
compensation for any such party’s involvement in discovery proceeding or testimony); provided that
Buyer shall not be liable for any such loss, liability, claim, damage or expense resulting from
actions taken by Seller in bad faith or as a result of its gross negligence or willful misconduct.
8. Termination of Purchase Obligation. The obligation of Seller and Buyer to sell and
purchase, respectively, the Shares under this Agreement shall become null and void and of no force
and effect upon the earlier of (i) the termination of the Acquisition Agreement or abandonment of
the Acquisition or (ii) 11:59 p.m. eastern daylight time on October 5, 2009 if the Acquisition has
not been consummated by such date. Notwithstanding any provision in this Agreement to the
contrary, Buyer’s obligation to purchase the Shares from Seller and Seller’s obligation to sell the
Shares to Buyer shall be conditioned on the consummation of the Acquisition.
9. Covenant of Seller. After the execution of this Agreement and prior to Closing,
Seller shall not acquire any common stock, warrants or other securities of HACI or effect any
derivative transactions with respect thereto.
10. Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement, including, without limitation, legal fees and expenses and all
other out-of-pocket costs and expenses of third parties incurred by a party in connection with the
negotiation and effectuation of the terms and conditions of this Agreement and the transactions
contemplated thereby, shall be the obligation of the respective party incurring such fees and
expenses; provided that Buyer shall pay up to $25,000 of the documented costs and expenses incurred
by Seller in connection with the transactions contemplated by this Agreement (the “Reimbursable
Expenses”).
11. 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 or electronic transmission, and any such executed facsimile or electronic
copy shall be treated as an original.
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12. 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 (except to the extent
otherwise provided in Section 2). 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 and irrevocably waives trial by jury.
13. 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.
14. 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, except that Seller may assign any of its rights and interests to any person
or entity, provided that the performance required of Seller hereunder will not be impaired.
15. Headings. The descriptive headings of the Sections hereof are inserted for
convenience only and do not constitute a part of this Agreement.
16. 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 not any provision hereof may be changed or
amended orally, but only by an agreement in writing signed by the other party hereto.
17. Maximum Payments. Nothing contained herein shall be deemed to establish or
require the payment of a rate of interest or other charges in excess of the maximum rate permitted
by applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by applicable law, any payments in excess of such
maximum rate shall be credited against amounts owed by Buyer to Seller and thus refunded to Buyer,
as applicable.
18. Seller W-9. Seller agrees to promptly provide to Buyer an Internal Revenue
Service Request for Taxpayer Identification Number and Certification Form W-9.
19. Acknowledgement. Seller acknowledges that Buyer may publicly disclose the
information contained in this agreement and may make any related filings with the Securities and
Exchange Commission, including filings on a Current Report on Form 8-K, as Buyer may deem
appropriate.
20. Notice. Seller will immediately notify Buyer and REC of any purchase of shares of
stock of Buyer that are entered into by Seller or any of its affiliates, including the price per
share, number of shares, any proxies granted in connection therewith and any other relevant
information. Seller will
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immediately send copies of any notice to each of the following persons at
the email address beside each person’s respective name:
Xxxxxx X. Armes
|
xxxxxx@xxxxxxxxxxxxx.xxx | |
Xxxxx X. Xxxxxxx
|
xxxxxxxx@xxxx.xxx | |
Xxxxxx X. Xxxxxx, XX
|
Xxx.Xxxxxx@xxxxxx.xxx | |
Xxxx X. Arney
|
Xxxx.Xxxxx@xxxxxx.xxx | |
Xxxxx X. Xxxxxx
|
xxxxxxx@xxxxxxxx.xxx | |
Xxxxx X. Xxxxxxxxx
|
xxxxxxxxxx@xxxxxxxx.xxx |
[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.
| XXXXX ACQUISITION COMPANY I, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| VICTORY PARK CREDIT OPPORTUNITIES MASTER FUND, LTD. By: Victory Park Capital Advisors, LLC, its investment manager |
||||
| By: | ||||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | General Counsel | |||
| Address: 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 |
||||
Purchase Price Per Share:
|
[to be determined by dividing the Aggregate Purchase Price by the Number of Shares] | |
Number of Shares:
|
[to be the number of shares purchased by Seller pursuant to Section 1 of the Initial Agreement] | |
Aggregate Purchase Price:
|
[to be the total price paid by Seller pursuant to the accompanying Agreement, dated September ___, 2009 by and between Buyer and Seller (the “Initial Agreement”) in connection with the purchases by Seller contemplated by Section 1 of such Initial Agreement] |
Signature Page to
Stock Purchase Agreement
Stock Purchase Agreement
Schedule of Liabilities and Schedule I
Unwaived
KPMG for audit and financial services
Customary liabilities for tax not yet due and payable
Waived
Xxxxx & Co. Inc. for printing services
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP for legal services
Xxxxxx & Co. for proxy soliciting services
Broadridge Financial Solutions, Inc. for mailing services
Citi Global Markets Inc. as representative of the underwriters for deferred fees and for investment banking services
Xxxxxxx Xxxxx & Associates Inc. for investment banking services
FBR Capital Markets & Co. for investment banking services
Capital One Southcoast, Inc. for investment banking services
Scardsdale Equities llc for investment banking services
Xxxxx Holdings, LLC for administrative services
Continental Stock Transfer & Trust Company for trustee/transfer agent fees
Liabilities to make payments to REC and affiliates under the Acquisition Agreement
[note: schedule subject to company review]
Annex I-2
Annex I
XXXXX ACQUISITION COMPANY I, INC.
000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
[ ], 2009
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
| Re: | Xxxxx Acquisition Company I, Inc. Trust Account No. 530-065681 (the “Trust Account”) |
Gentlemen:
Xxxxx Acquisition Company I, Inc. (the “Company”) is providing these irrevocable instructions
to you in connection with the above described Trust Account established in connection with and
pursuant to an Investment Management Trust Agreement, dated as of September 27, 2007 between the
Company and Continental Stock Transfer & Trust Company as Trustee (the “Trust Agreement”).
Capitalized terms used herein shall have the meanings ascribed to such terms in the Trust
Agreement.
In the event the Company delivers to you a Termination Letter substantially in the form of
Exhibit A to the Trust Agreement, in addition to the other documents required to be delivered
pursuant to Exhibit A of the Trust Agreement, then on the date the Trust Account is liquidated, you
are hereby irrevocably instructed by the Company to immediately deliver from the Trust Account an
aggregate amount equal to USD $[AMOUNT] (the “Aggregate Amount”) in consideration for the delivery
(through the DWAC System to the Company’s account) of an aggregate of [NUMBER] shares of the
Company’s common stock (the “Shares”) beneficially owned by Victory Park Credit Opportunities
Master Fund, Ltd. and Victory Park Special Situations Master Fund, Ltd. (each an “Investor” and,
collectively, the “Investors”) which shall be distributed to such Investors (in the amounts
indicated in their respective wire instructions below) prior to the release of any funds from the
Trust Account to the Company or any other third party except for converting stockholders exercising
their rights pursuant to Section 9.3 of Buyer’s amended and restated certificate of incorporation.
Such amounts shall be delivered to the Investors in accordance with the following bank wire
instructions:
[INSERT INSTRUCTIONS]
The funds distribution described above is for the benefit of the Investors, each of whom is hereby
made a third party beneficiary of these irrevocable instructions with rights of enforcement.
Each of the Company and Trustee acknowledges that the instructions contained herein are irrevocable
and may not be amended, modified, waived or otherwise changed by the Company, Trustee or any other
person without the prior written consent of the Investors.
[In order to expedite payment, attached is Victory Park’s Form W-8.]
Kindly acknowledge where indicated below, your receipt and understanding of these instructions and
return a copy to [Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, PC, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Xxxxxxx X. Xxxxxxx, Esq., Fax Number: (000) 000-0000; Phone Number: (000)
000-0000] and to Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, attention: Xxxxx X. Xxxxxx, facsimile number
(000) 000-0000.
A facsimile signed and electronically delivered copy of this letter shall be deemed an original.
| Very truly yours, XXXXX ACQUISITION COMPANY I, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Acknowledged and Agreed: CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
VICTORY PARK CREDIT OPPORTUNITIES MASTER FUND, LTD.
By: Victory Park Capital Advisors, LLC, its investment manager
By: Victory Park Capital Advisors, LLC, its investment manager
| By: | ||||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | General Counsel | |||
Annex I-2
