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Exhibit
10.2
ACKNOWLEDGEMENT AND
AGREEMENT
REGARDING STOCK PURCHASE
AGREEMENT AND GUARANTY
THIS ACKNOWLEDGEMENT AND
AGREEMENT (this “ Agreement ”) dated as of
October 8, 2007 by and among I-Flow Corporation, a Delaware
corporation (the “ Seller ”), InfuSystem, Inc.,
a California corporation (the “ Company ”),
HAPC, Inc., a Delaware corporation (the “ Buyer
”), Iceland Acquisition Subsidiary, Inc., a Delaware
corporation (the “ Acquisition Sub ”), and Pat
LaVecchia, Sean D. McDevitt and Philip B. Harris (collectively, the
“ Guarantors ”) is entered into with reference
to the following:
WHEREAS, the Seller, the
Company, the Buyer and the Acquisition Sub entered into that
certain Stock Purchase Agreement dated as of September 29,
2006, as amended to date (the “ SPA ”) and
capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the SPA;
WHEREAS, the Guarantors have
made and entered into that certain Continuing Guaranty dated as of
September 29, 2006 (the “ Guaranty ”) in
favor of the Seller, pursuant to which the Guarantors, jointly and
severally, unconditionally guaranteed the full and prompt payment
to the Seller when due of the Termination Fee; and
WHEREAS, in connection with
the SPA and the Guaranty, the parties hereto wish to acknowledge
and confirm their agreement as to certain matters.
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the parties
hereto acknowledge and agree as follows:
1. Seller’s Right to
Cause Buyer to Conclude Buyer Stockholders’ Meeting . All
parties hereto agree that, pursuant to, among other things,
Section 6.18 of the SPA and the Seller’s rights as a
stockholder of the Buyer, the Seller has the right to cause the
Buyer to conclude the Buyer Stockholders’ Meeting, which was
convened and occurred on September 26, 2007 but was
subsequently adjourned to October 10, 2007. In consideration
of the following acknowledgements and agreements, the Seller agrees
to waive such right until October 19, 2007.
2. Acknowledgements and
Agreements by the Buyer, the Acquisition Sub and the Guarantors
. The Buyer, the Acquisition Sub and the Guarantors hereby
acknowledge and agree as follows:
(a) Buyer
Stockholders’ Meeting Has Occurred . The Buyer
Stockholders’ Meeting occurred on September 26, 2007 for
all purposes, including without limitation Section 10.3 of the
SPA relating to the Termination Fee. Accordingly, the Termination
Fee shall be $3,000,000 under any circumstances in which it is
payable, including in the event that the Buyer is unable to obtain
the Stockholder Approval by the Termination Date for any reason
whatsoever (including without limitation acts of God, failure to
tally a vote or correctly tally a vote and inability to re-convene
the Buyer Stockholders’ Meeting for any reason).
1
(b)
Conclusion
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