Exhibit 10.1
AMENDMENT NO. 3 TO AGREEMENT AND
PLAN OF REORGANIZATION
This AMENDMENT NO. 3 TO AGREEMENT
AND PLAN OF REORGANIZATION (this “ Amendment ”)
is made and entered into as of July 28, 2009 by and among
Alternative Asset Management Acquisition Corp., a Delaware
corporation (“ Parent ”), Great American Group,
Inc., a Delaware corporation and wholly-owned subsidiary of Parent
(“ Holdco ”), AAMAC Merger Sub, Inc., a Delaware
corporation and wholly-owned subsidiary of Holdco (“
Merger Sub ,” and collectively, with Parent and
Holdco, the “ Buyer Parties ”), on the one hand,
and Great American Group, LLC, a California limited liability
company (the “ Company ”), Andrew Gumaer, in his
capacity as a Member and as the Member Representative, and Harvey
Yellen, in his capacity as a member, on the other hand.
RECITALS
A. The Buyer Parties, the Company,
the Members and the Member Representative are parties to that
certain Agreement and Plan of Reorganization, dated May 14,
2009 (as amended by Amendment No. 1, dated May 29, 2009,
and Amendment No. 2, dated July 8, 2009) (the “
Purchase Agreement ”).
B. Each of the Buyer Parties, the
Company, the Members and the Member Representative wish to amend
the Purchase Agreement as provided herein.
NOW THERFORE, in consideration of
the premises and mutual agreements and covenants set forth herein,
and intending to be legally bound hereby, the Parties hereto hereby
agree as follows:
Section 1.
Defined Terms .
Capitalized terms used and not otherwise defined herein shall have
the meanings given to such terms in the Purchase
Agreement.
Section 2. Amendments to
Purchase Agreement .
2.1 Section 1.1(a)(ii) is
hereby amended and restated to read as follows:
“On the Closing Date, Parent
and Holdco shall cause Twelve Million (12,000,000) shares of
common stock, par value $0.0001 per share (the “ Closing
Stock Consideration ”), of Holdco (the “ Holdco
Common Stock ”) to be or issued to those Persons set
forth on Exhibit 1.1(a)(ii)-1 (the “ Phantom Equity
Holders ”) and the Members (collectively, the “
Contribution Consideration Recipients ”), in
accordance with their respective stock percentages (the “
Stock Contribution Consideration Percentages ”), as
set forth in, and in accordance with, the flow of funds memorandum
attached as Exhibit 1.1(a)(ii)-2 (the “ Flow of
Funds Memo ”). On the Closing Date, Holdco shall execute
and deliver to the Contribution Consideration Recipients, a
subordinated unsecured promissory note (the “ Note
”) in the amount of up to Sixty Million Dollars ($60,000,000)
(the “ Closing Note Consideration ”), subject to
reduction in accordance with this Section 1.1(a)(ii). The
Closing Stock Consideration and the Note are collectively referred
to herein as the “ Closing Consideration ”. In
the event the Trust Fund at Closing exceeds Forty Million Dollars
($40,000,000) after the payment of all
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expenses and other amounts set forth
in Section 3.17(a) , and such excess amount is paid to
the Contribution Consideration Recipients pursuant to
Section 3.17(a) at Closing, the principal amount of the
Note shall be reduced on a dollar for dollar basis for each dollar
paid to the Contribution Consideration Recipients, if any. The Note
shall be substantially in the form set forth in Exhibit
1.1(a)(ii)-3 and bear an interest rate of twelve percent
(12%) per annum, with interest due quarterly in accordance
with the terms of the Note and payments of one-fifth (1/5
th ) of the principal, and all accrued and
unpaid interest thereon, due on each anniversary of the Note. The
maturity date of the Note is the fifth (5 th ) anniversary of the Closing Date. The
Closing Consideration shall be subject to adjustment in accordance
with Section 1.2(d) (Escrow), Section 1.3
(Working Capital Adjustment) and Section 1.5 (Inventory
Adjustment). The receipt of the Closing Consideration is further
subject to the execution of Lock Up Agreements (as defined in
Section 1.6 ) by the Contribution Consideration
Recipients pursuant to Section 1.6 . The Closing Stock
Consideration to be issued to the Members shall be issued at the
Closing. The Closing Stock Consideration to be issued to the
Phantom Equity Holders shall be issued upon distribution when
vested in accordance with Section 1.1(a)(iii) . In
addition, in consideration for the Membership Interests, the
Members shall be entitled to receive the Available Cash Payment (as
hereafter defined), and the Contribution Consideration Recipients
shall be entitled to receive the Contingency Stock Payments (as
defined hereinafter), to the extent they become due and payable in
accordance with the terms hereof.”
2.2 For purposes of
Section 1.1(a)(iii), all references to “Closing Cash
Consideration” shall mean “Closing Note
Consideration”. In addition, the final sentence of
Section 1.1(a)(iii) is hereby amended and restated in its
entirety as follows: “For purposes of this
Section 1.1(a)(iii), “ Distribution Date ”,
with respect to any Phantom Equity Holder, shall mean each six
(6) month anniversary of the Closing Date, commencing with the
date that is six (6) months following the Closing Date and
ending on the date that is eighteen (18) months following the
Closing Date, and “ portion of the Closing Stock
Consideration ”, with respect to any Phantom Equity
Holder, shall mean, for the initial Distribution Date, fifty
percent (50%) of such Phantom Equity Holder’s Stock
Contribution Consideration Percentage of the Closing Stock
Consideration, and for each of the following Distribution Dates,
twenty-five percent (25%) of such Phantom Equity
Holder’s Stock Contribution Percentage of the Closing Stock
Consideration (subject to reduction in accordance with
Section 1.2(d) (Escrow) and Section 1.3 (Working Capital
Adjustment)).”
2.3 Section 1.1(b)(ii) is
hereby amended and restated to read as follows:
“Simultaneously with the
Contribution on the Closing Date, and upon the terms and subject to
the conditions of this Agreement and in accordance with the DGCL,
at the Effective Time, each issued and outstanding share of common
stock, par value $.0001 per share, of Parent (the “ Parent
Common Stock ”) shall be exchanged into Two
(2) shares of Holdco Common Stock. Simultaneously with the
Contribution on the Closing Date, and upon the terms and subject to
the conditions of this Agreement and in accordance with the DGCL
(subject, in the
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case of the Parent Warrants and
Parent Units, to Section 1.1(b)(vii)), at the Effective Time,
all of the issued and outstanding [A] warrants of Parent to
purchase Parent Common Stock (the “ Parent Warrants
”) and [B] each unit, comprised of Parent Common Stock
and Parent Warrants (the “ Parent Units ”)
respectively, shall be exchanged into [x] the same number of
warrants to purchase Holdco Common Stock (the “ Holdco
Warrants ”) and [y] Two (2) shares of Holdco
Common Stock and one Holdco Warrant, respectively. As a result of
the Merger, all of the common stock of Merger Sub shall be
converted into common stock of the Surviving Company with the same
rights, powers and privileges as the shares so converted, and such
shares shall constitute the only outstanding common stock of the
Surviving Company following the Effective Time. From and after the
Effective Time, any certificate representing the Parent Common
Stock, Parent Warrants, or Parent Units, respectively, shall be
deemed for all purposes to represent Holdco Common Stock, Holdco
Warrants and, in the case of Parent Units, Holdco Common Stock and
Holdco Warrants, respectively, into which such shares of Parent
Common Stock, Parent Warrants, or Parent Units, respectively,
represented thereby were exchanged in accordance with the
immediately preceding sentence without surrender or exchange of
such certificate. Each share of Parent Common Stock that is owned
by Parent shall automatically be cancelled and retired and shall
cease to exist, and no consideration shall be delivered in exchange
therefor. Each share of Parent Common Stock subject to agreements
whereby Parent (or Holdco) will purchase shares of Parent Common
Stock sold in Parent’s IPO shall automatically be cancelled
and shall cease to exist, and shall represent only the right to
receive payment therefor in accordance with the terms of such
agreements. Each share of Parent Common Stock sold in
Parent’s IPO held by a stockholder of Parent that has voted
against the Reorganization and exercised its rights under
Parent’s certificate of incorporation, as amended, to convert
its shares of Parent Common Stock into a cash payment from the
Trust Fund, shall only have the right to receive such
payment.”
2.4 Section 1.1(b)(iii) is
hereby amended and restated to read as follows:
“Simultaneously with the
Contribution on the Closing Date, and upon the terms and subject to
the conditions of this Agreement and in accordance with the DGCL,
at the Effective Time, Parent (or the Surviving Corporation) shall
cause the Trustee (as hereafter defined) to distribute the proceeds
of the Trust Account in accordance with Section 3.17
.”
2.5 Section 1.4(a) is hereby
amended and restated to read as follows:
“For purposes of this
Section 1.4 , “ Adjusted EBITDA ”
shall mean consolidated net earnings of the Company before interest
expense, income taxes, depreciation, amortization, extraordinary or
non-recurring loss and all other extraordinary non-cash items for
the applicable period and as calculated in accordance with
Section 1.4 of the Company Disclosure Schedule applied
on a consistent basis. For purposes of the calculation of Adjusted
EBITDA, net earnings shall (a) exclude any Expenses, including
without limitation, expenses incurred in connection with the road
show and investor presentation, and any other transaction expenses
hereafter incurred, and any other expenses incurred by Parent or
any Parent Subsidiary, whether incurred prior to or following the
Closing Date, including, without limitation, any payment of fees to
any advisors of Parent, any payments to Halcyon Management Group
LLC (“ Halcyon ”), any Parent organization costs
and commissions, any Parent Board fees, any fees or expenses with
respect to Parent’s operating expenses, NYSEA and Nasdaq
Capital Market fees, expenses associated with the auditing of the
Closing Company Financials, expenses associated with the Proxy
Statement, Registration Statement and the Proxy
Statement/Prospectus, costs associated with issuing options in the
future from any Company Benefit Plan or the Incentive Plan,
(b) exclude any Expenses of the Company
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in connection with its engaging in
the transaction, including without limitation, fees and expenses
paid to advisors, all costs associated with due diligence
activities, Antitrust Laws filing costs and related expenses, all
KPMG tax study costs, all consultant costs, all legal counsel fees
and expenses and all investment banking fees and expenses,
(c) exclude any payments or accruals related to any of the
Phantom Equity Holders made pursuant to this Agreement both
retrospectively and in the future whether in cash, shares or
contingent shares form, (d) exclude any past, present or
future share based compensation expense, (e) exclude any
expense, accrual or income related to any increases or decreases in
the fair market value of Minority LLC intere
