Exhibit 10.12
AMENDED AND RESTATED
PLACEMENT UNIT AND WARRANT PURCHASE AGREEMENT
AMENDED AND RESTATED PLACEMENT UNIT AND WARRANT PURCHASE AGREEMENT (this
"Agreement") made as of this 7th day of September, 2006 between Xxxxxxxx
XxXxxxx Acquisition Corporation, a Delaware corporation (the "Company"), and
Xxxxx X. XxXxxxx (the "Purchaser").
WHEREAS, the Company and the Purchaser have entered into a Placement Unit and
Warrant Purchase Agreement dated as of July 25, 2006 (the "Placement Unit
Purchase Agreement");
WHEREAS, the Company has filed with the Securities and Exchange Commission
("SEC") a registration statement on Form S-1, as amended (the "Registration
Statement"), in connection with the Company's initial public offering (the
"IPO") of up to 15,625,000 units, each unit ("Unit") consisting of one share
of the Company's common stock, $.0001 par value (the "Common Stock"), and
(ii) one warrant, each warrant to purchase one share of Common Stock;
WHEREAS, the Company desires to sell in a private placement to the Purchaser
(the "Placement") an aggregate of 187,500 units (the "Placement Units") and
1,500,000 warrants (the "Placement Warrants") substantially identical to the
Units and warrants being issued in the IPO pursuant to the terms and
conditions hereof and as set forth in the Registration Statement, as
described in the Registration Statement;
WHEREAS, the Placement Warrants and the warrants included in the Placement
Units (together, the "Warrants") shall be governed by the Warrant Agreement
filed as an exhibit to the Registration Statement;
WHEREAS, the Purchaser is entitled to registration rights with respect to the
Common Stock and the Warrants and the Common Stock underlying the Warrants
(collectively, the "Registrable Securities") on the terms set forth in this
agreement; and
WHEREAS, the Purchaser and the Company desire to amend and restate the
Placement Unit Purchase Agreement as set forth herein.
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 OF UNITS AND WARRANTS. The Purchaser hereby agrees to purchase an
aggregate of 187,500 Placement Units at a purchase price of $8.00 per
Placement Unit, and 1,500,000 Placement Warrants at a purchase price of $1.00
per Placement Warrant, for an aggregate of $3,000,000 (the "Purchase Price").
2. CLOSING. The closing of the purchase and sale of the Placement Units and
the Placement Warrants (the "Closing") will take place at such time and place
as the parties may agree, but in no event later than the date on which the
IPO closes (the "Closing Date"). On the Closing Date, the Purchaser shall pay
the Purchase Price by wire transfer of funds to an account maintained by the
Company. Immediately prior to the closing of the IPO, the Company shall
deposit the Purchase Price into the trust account described in the
Registration Statement (the "Trust Account"). The certificates for the Common
Stock and Warrants shall be delivered to the Purchaser promptly after the
closing of the IPO.
3. VOTING OF SHARES; WAIVER OF CONVERSION RIGHTS. If the Company solicits
approval of its stockholders of a Business Combination, the Purchaser may
vote the shares of the Common Stock acquired by him pursuant to this
Agreement in any manner he determines, provided however that the Purchaser
waives any conversion rights he might have with respect to such shares. As
used herein, a "Business Combination" shall mean an acquisition, through a
merger, capital stock exchange, asset acquisition, stock purchase or other
similar business combination, of one or more assets or operating businesses
in the telecommunications and media industries selected by the Company.
4. WAIVER OF LIQUIDATION DISTRIBUTIONS. In connection with the Placement
Units purchased pursuant to this Agreement, the Purchaser hereby waives any
and all right, title, interest or claim of any kind in or to any liquidating
distributions by the Company in the event of a liquidation of the Company
upon the Company's failure to timely complete a Business Combination. For
purposes of clarity, any shares of Common Stock purchased in the IPO or the
aftermarket by the Purchaser shall be eligible to receive any liquidating
distributions by the Company.
5. LOCK-UP AGREEMENT. The Purchaser shall not, without the prior written
consent of the Company and Deutsche Bank Securities Inc. ("Deutsche Bank"),
the underwriters, (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the SEC in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC
promulgated
thereunder (the "Exchange Act") with respect to, any Placement Units,
Placement Warrants and the shares and warrants comprising the Placement
Units, the shares issuable upon the exercise of the Warrants, or any shares
issued as dividends with respect to any shares acquired in connection with
this Agreement, or any securities convertible into or exercisable or
exchangeable for such shares or warrants, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Placement Units or Placement Warrants,
the shares and warrants comprising the Placement Units, the shares issuable
upon the exercise of the Warrants, or any shares issued as dividends with
respect to any shares acquired in connection with this Agreement, or any
securities convertible into or exercisable or exchangeable for such shares or
warrants or other rights to purchase such shares or any such securities,
whether any such transaction is to be settled by delivery of shares or such
other securities, in cash or otherwise, or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii) until 30
days after the consummation of a Business Combination. In order to enforce
this covenant, the Purchaser agrees, if requested by Deutsche Bank, to
deposit the Placement Units and Placement Warrants in an account to be
established by Deutsche Bank. Notwithstanding the foregoing, the undersigned
may transfer his Placement Units, Placement Warrants, the shares and warrants
comprising the Placement Units, and the shares issuable upon the exercise of
the Warrants, while subject to the restriction hereunder (i) by gift to a
member of the undersigned's immediate family or to a trust, the beneficiary
of which is a member of an undersigned's immediate family, an affiliate of
the undersigned or to a charitable organization, (ii) by virtue of the laws
of descent and distribution upon death of the undersigned, (iii) pursuant to
a qualified domestic relations order, (iv) to another officer or director of
the Company, or (v) in the event of a liquidation of the Company prior to a
Business Combination or the consummation of a liquidation, merger, capital
stock exchange, stock purchase, asset acquisition or other similar
transaction which results in all the Company's stockholders having the right
to exchange their shares of Common Stock for cash, securities or other
property subsequent to the Company's consummating a Business Combination with
a target business; provided, however, that the permissive transfers pursuant
to clauses (i) - (iv) may be implemented only upon the respective
transferee's written agreement to be bound by the terms and conditions of
this Agreement, including with respect to the voting requirements pertaining
to the securities.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
6.1 The Purchaser is an "accredited investor" as that term is defined in Rule
501 of Regulation D promulgated under the Securities Act.
6.2 The Placement Units, Placement Warrants and Common Stock and warrants, if
applicable, underlying such securities are being acquired for the Purchaser's
own account, only for investment purposes and not with a view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act.
6.3 The Purchaser has the full right, power and authority to enter into this
Agreement and this Agreement is a valid and legally binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms.
6.4 The Purchaser acknowledges that the shares and warrants included in the
Placement Units purchased, the Placement Warrants and the shares issued upon
exercise of the Warrants, will bear a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
7. REGISTRATION RIGHTS AGREEMENT. At or prior to the Closing, the Company
and the Purchaser shall enter into a mutually satisfactory registration
rights agreement having the terms described in the Registration Statement.
8. WAIVER OF CLAIMS; INDEMNIFICATION. The Purchaser hereby waives any and all
rights to assert any present or future claims, including any right of
rescission, against the Company or Deutsche Bank with respect to his purchase
of the Placement Units and Placement Warrants, and the Purchaser agrees to
indemnify and hold the Company and Deutsche Bank harmless from all losses,
damages or expenses that relate to claims or proceedings brought against the
Company or Deutsche Bank by any of the Purchaser's transferees, heirs,
assigns or any subsequent holders of the Placement Units and Placement
Warrants or underlying securities.
9. 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.
10. 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.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and assigns, provided,
however, that Purchaser shall not have the right to assign any of its rights
hereunder to purchase Placement Units or Placement Warrants to any other
person.
12. THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person; provided that Deutsche Bank shall be a third party beneficiary
of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
11th day of September, 2006.
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
A Delaware Corporation
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
PURCHASER:
/s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx
