Exhibit 10.1
AMENDED AND
RESTATED
SECURITIES PURCHASE
AGREEMENT
THIS AMENDED AND RESTATED SECURITIES PURCHASE
AGREEMENT is made and entered into as of October 1, 2009, by and
among Tremisis Energy Acquisition Corporation II, a Delaware
corporation (“ Parent ”), Asiana IDT Inc., a
Korean company (“ Company ”), and Asiana
Airlines, Inc., a Korean company (“ Asiana ” or
the “ Stockholder ”). (Each of the above party,
“party,” and collectively “parties,” unless
the context requires otherwise).
RECITALS
A. Asiana
is the direct and beneficial owner of all of the outstanding
capital stock (“ Company Common Stock ”) of the
Company.
B. Subject
to the terms and conditions of this Agreement (defined below),
Parent at the Closing (defined below), shall acquire, by an
issuance of its capital stock and payment of cash as provided
hereunder, all of the Company Common Stock from Asiana (“
Company Common Stock Purchase” ). The term
“ Agreement ” as used herein refers to this
Securities Purchase Agreement, originally executed as of July 30,
2009 and amended and restated as of October 1, 2009, and as the
same may be further amended from time to time, and all schedules
hereto. For the purpose of this Agreement, the capital stock of
Parent shall be referred to as “Parent Common
Stock.”
NOW, THEREFORE, in consideration of the
covenants, promises and representations set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
THE COMPANY COMMON STOCK
PURCHASE
1.1
Purchase and Sale . Upon the terms and subject to
the conditions hereof, at the Closing (as defined below), Asiana
shall sell, transfer, assign and convey to Parent, and Parent shall
purchase from Asiana, all of the right, title and interest of
Asiana in and to the Company Common Stock representing all of the
issued and outstanding Company Common Stock.
(a) Subject
to adjustment as hereinafter set forth, the aggregate purchase
price (“ Purchase Price ”) to be paid by Parent
to Asiana or its designees for the Company Common Stock shall be
the following:
(i) The
United States dollar (“USD”) 57,109,050 in cash;
and
(ii) certificates
representing, in the aggregate, 9,702,800 shares of Parent Common
Stock.
The 9,702,800 shares of Parent Common Stock
issued under this Section 1.2(a)(ii) are sometimes referred to
herein as the “ Asiana Shares ” and the cash
issued under this Section 1.2(a)(i) is sometimes referred to herein
as the “ Cash Consideration .”
(b) Currency:
Payment of the Cash Consideration shall be made in United States
dollars at Average Exchange Rate. For the avoidance of doubt,
Parent shall be responsible for paying the said Cash Consideration
in accordance with the terms and conditions stated herein, and
agrees to bear all the risks and expenses associated with such
payment including, without limitation, any losses due to the
currency fluctuation.
(c) Average
Exchange Rate: The Average Exchange Rate shall mean the average
exchange rate determined by Seoul Money Brokerage Services, Ltd.
between the United States dollar and the Korean won over the 10
business-day period immediately prior to July 30, 2009; provided,
however, that if the exchange rate as of the Closing differs from
the Average Exchange Rate by more than 10%, the parties agree to
renegotiate the rate to be applied to the transaction.
(d) Expenses:
All expenses of “due diligence” investigation of the
Company will be paid by Parent with the exception that Asiana will,
at its cost, provide financial statements of the recent three (3)
years and the first half of the fiscal year of 2009, all of which
shall be converted to U.S. GAAP.
(e) Time
of payment: The parties hereto intend that the transfer of 100% of
its shares of the Company by Asiana to Parent will take place as
soon as possible but no later than the thirtieth (30th) business
day from the date of the approval by the Parent’s
shareholders at the shareholders’ meeting, subject to the
terms and conditions set forth in this Agreement. For the avoidance
of doubt, Asiana’s agreement to transfer its shares to Parent
shall be conditional upon the Parent making the cash payment
referenced in Section 1.2(a)(i) above and issuing the valid and
fully paid up Asiana Shares to Asiana on the same date pursuant to
the applicable procedures governing the issuance of stock
certificate.
(f) Extension:
In the event of any and all reasonable cause for change in the time
of payment, including but not limited to internal and external
circumstances of all the parties involved, the parties desire that
the Closing Date (as defined below) may be extended up to fourteen
(14) business days with consent of all parties, but the Closing
shall take place as soon as possible. Notwithstanding the
foregoing, the provision of this Section 1.2(f) shall be subject to
the provisions of Sections 1.3 and 6.17.
Subject to Section 6.16 and other terms and
conditions set forth herein, the consummation of the Company Common
Stock Purchase (“ Closing ”) shall take place at
the offices of Graubard Miller, counsel to Parent, 405 Lexington
Avenue, 19 th Floor, New York, New York 10174-1901 at a time
and date to be specified by the parties, which shall be as soon as
practicable following the approval by the Parent’s
stockholders at the stockholders’ meeting of the Company
Common Stock Purchase in accordance with the terms and conditions
herein and approval by the Parent’s warrantholders at the
warrantholder meeting of the Warrant Redemption (as such terms are
defined below) but no later than the thirtieth (30
th ) business day after the date of such approvals,
or at such other time, date and location as the parties hereto
agree in writing (the “ Closing Date
”). Closing signatures may be transmitted by
facsimile or by emailed PDF file.
(a)
Asiana . At the Closing, Asiana will assign and
transfer to Parent all of its right, title and interest in and to
the Company Common Stock by delivering to Parent the certificates
representing such Company Common Stock, duly endorsed for transfer
and free and clear of all liens.
(b)
Parent . At the Closing, Parent shall deliver to
Asiana the following: (i) the Cash Consideration and Asiana Shares
representing the Purchase Price to which Asiana is entitled
pursuant to Section 1.2; and (ii) written opinions of the counsel
for the Parent that the Asiana Shares are validly issued
and fully paid under the applicable law, and the redemption of the
warrants and of the management held shares pursuant to Section
5.1(a) herein were done validly by Parent, in form and substance
satisfactory to Asiana.
1.5
Further Assurances . From time to time after the
date of this Agreement, each of the Parties hereto shall execute
and deliver such other documents and instruments, provide such
materials and information and take such other actions as may
reasonably be necessary, proper or advisable, to the extent
permitted by law, to fulfill its obligations under this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
PARENT, ASIANA AND THE COMPANY
2.1
Authority Relative to this Agreement . Each of
the Parent, Asiana and the Company has all necessary corporate
power and authority to: (i) execute and deliver this
Agreement and each ancillary document that such party is to execute
or deliver pursuant to this Agreement, and (ii) carry out such
party’s obligations hereunder and thereunder and, to
consummate the transactions contemplated hereby and
thereby.
2.2
Representation as to Asiana and Company Information . Asiana
and the Company jointly and separately, hereby represent and
warrant to Parent that (i) at the date of this Agreement and on the
Closing Date, the information provided by Asiana and the Company to
Parent relating to Asiana and the Company contained all the
material information relating to Asiana and the Company; and (ii)
such information, on such dates, does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
2.3.
Representation as to Parent Information . Parent hereby
represents and warrants to Asiana and the Company that: (i) at the
date of this Agreement and on the Closing Date, the information
provided by Parent to Asiana relating to Parent contained all the
material information relating to Parent; and (ii) such information,
on such dates, does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
2.4
Representation as to the Company : Asiana and the Company,
jointly and separately, hereby represent and warrant that the
Company has no contingent liabilities and off-balance debts and
that it shall be accountable to all such liabilities as are not
disclosed at the time of due diligence except for the matters
stated in Schedule 2.4 hereto.
2.5
Representation as to the Trust Fund Balance : Parent hereby
represents and warrants that all payments due and payable from the
Trust Fund (as defined below) under Article V hereof shall not
exceed the current balance of the Trust Fund remaining as of the
Closing Date.
ARTICLE III
GUARANTEE OF THE RIGHT OF
MANAGEMENT
3. For
a period of one (1) year after the Closing, officers and directors
shall be designated with the conditions set below:
(a) Parent:
One outside director designated by the directors of Parent in
office prior to the Closing may be appointed to the position as a
senior managing director of Parent. Such person shall be afforded
the same rights and paid similar compensation to that of other
directors. Asiana may determine the role of such
director.
(b) Company:
The directors of Parent in office prior to the Closing may appoint
one part-time outside, non-registered director of the Company.
Asiana may determine the rights, compensation and / or role of such
director.
(c) Asiana:
Asiana shall appoint an officer or director with fluency in English
as the CFO of Parent.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE
TIME
4.
Conduct of Business by the Company and Parent
. During the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement
pursuant to its terms or the Closing (such period, “
Effective Time ”), each of the Company and Parent
shall, except to the extent that the other party shall otherwise
consent in writing or as contemplated by this Agreement or as set
forth in Schedule 4.1 , carry on its business in the usual,
regular and ordinary course consistent with past practices, in
substantially the same manner as heretofore conducted and in
compliance with all applicable laws and regulations (except where
noncompliance would not be reasonably expected to have a Material
Adverse Effect), pay its debts and taxes when due subject to good
faith disputes over such debts or taxes, pay or perform other
material obligations when due, and use commercially reasonable
efforts consistent with past practices and policies to (i)
preserve substantially intact its present business organization,
(ii) keep available the services of its present key officers and
key employees and (iii) preserve its relationships with customers,
suppliers, distributors, licensors, licensees, and others with
which it has significant business dealings. In addition,
except as required by the terms of this Agreement and except as set
forth in Schedule 4.1 , without the prior written consent of
the other party, during the period from the date of this Agreement
and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Closing, each of the Company
and Parent shall not do any of the following:
(a) transfer
or license to any person or otherwise extend, amend or modify any
material rights to any Intellectual Property of the Company, or
enter into grants to transfer or license to any person future
Intellectual Property rights, other than, with respect to the
Company in the ordinary course of business consistent with past
practices provided that in no event shall the Company license on an
exclusive basis or sell any Intellectual Property of the
Company;
(b) declare,
set aside or pay any dividends on or make any other distributions
(whether in cash, stock, equity securities or property) in respect
of any capital stock, or split, combine or reclassify any capital
stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for any capital
stock;
(c) issue,
deliver, sell, authorize, pledge or otherwise encumber, or agree to
any of the foregoing with respect to, any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or ownership interests, or subscriptions,
rights, warrants or options to acquire any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or other ownership interests, or enter into
other agreements or commitments of any character obligating it to
issue any such shares, equity securities or other ownership
interests or convertible or exchangeable securities;
(d) amend
its articles or certificate of incorporation and bylaws (or other
comparable governing instruments with different names)
(collectively referred to herein as “ Charter
Documents ”);
(e) sell,
lease, license, encumber or otherwise dispose of any properties or
assets, except with respect to the Company, (A) sales of inventory
in the ordinary course of business consistent with past practice,
and (B) the sale, lease or disposition (other than through
licensing) of property or assets that are not material,
individually or in the aggregate, to the business of the
Company;
(f) except
in the ordinary course of business consistent with past practices,
modify, amend or terminate any material contract, as applicable, or
waive, delay the exercise of, release or assign any material rights
or claims thereunder;
(g) enter
into any transaction with or distribute or advance any assets or
property to any of its officers, directors, partners, stockholders,
managers or members other than the payment of salary and benefits
and tax distributions in the ordinary course of business consistent
with past practices; or
(h) agree
in writing or otherwise agree, commit or resolve to take any of the
actions described in Section 4.1 (a) through (g) above.
ARTICLE V
ADDITIONAL
AGREEMENTS
5.1
Proxy Statement; Special Meeting .
(a) As
soon as is reasonably practicable after execution of this
Agreement, Parent shall prepare and file with the SEC
under the Securities Exchange Act of 1934 (hereinafter referred to
as the “ Exchange Act ”), and with all other
applicable regulatory bodies, proxy materials for the purpose of
soliciting proxies from (A) holders of Parent Common Stock to vote,
at a meeting of the holders of Parent Common Stock to be called for
such purpose (the “ Stockholder Special Meeting
”), in favor of, among other things, (i) the adoption of this
Agreement and the approval of the Company Common Stock Purchase
including without limitation approval of the issuance of the Asiana
Shares and the repurchase of the Sponsor Shares (as hereinafter
defined) at USD 0.0 per share and the cancellation of such shares
on a date not later than the Closing Date, (ii) the change of the
name of Parent to a name selected by the Company, (iii) the
election of directors of Parent, whose election shall be effective
as of the Closing Date subject to terms and conditions set forth
herein, (vi) other changes to Parent’s certificate of
incorporation agreed by the parties hereto, including (1) changing
corporate existence to perpetual; (2) incorporating the
classification of directors that would result from the election of
directors; (3) removing provisions that will no longer be
applicable to Parent after the Company Common Stock Purchase; and
(4) making certain other changes in terms, gender and number that
are substantively immaterial; and (v) an adjournment proposal to
adjourn the Stockholder Special Meeting if, based on the tabulated
vote count, Parent is not authorized to proceed with the Company
Common Stock Purchase and (B) holders of warrants to purchase
Parent Common Stock(“ Parent Warrants ”) to
vote, at a meeting of the holders of Parent Warrants to be called
for such purpose (the “ Warrantholder Special Meeting
” and together with the Stockholder Special Meeting,
collectively the “ Special Meeting ”), in favor
of, among other things, (i) to amend the terms of the Warrant
Agreement dated December 6, 2007, by and between Parent and
Continental Stock Transfer & Trust Company, as warrant agent
(the “Warrant Agreement”), covering the Parent Warrants
to allow redemption of the Parent Warrants(the “Warrant
Redemption”) as promptly as practicable after the Closing
Date, and (ii) an adjournment proposal to adjourn the Warrantholder
Special Meeting if, based on the tabulated vote count, Parent is
not authorized to proceed with the Warrant Redemption. Such proxy
materials shall be in the form of a proxy statement to be used for
the purposes of soliciting proxies from holders of Parent Common
Stock and Parent Warrants for the matters to be acted upon at the
Special Meeting (the “ Proxy Statement ”). The
Company shall furnish to Parent on a timely basis all information
concerning the Company (or any of its Subsidiaries) as Parent may
reasonably request in connection with the preparation of the Proxy
Statement. Parent, with the assistance of the Company, shall
promptly respond to any SEC comments on the Proxy Statement and
shall otherwise use commercially reasonable efforts to cause the
Proxy Statement to be approved for issuance by the SEC as promptly
as practicable. Parent shall also take any and all
commercially reasonable actions required to satisfy the
requirements of the Exchange Act. The Parent hereby
agrees to repurchase 2,203,298 outstanding shares of Parent Common
Stock owned by the management of the Parent (“ Sponsor
Shares ”) at the price of USD 0.0 per share and to cancel
such shares on a date not later than the Closing Date. (“
Parent Share Redemption ”) The Parent
hereby represents and warrants that the Parent shall effectuate the
foregoing in a legally permitted way and shall indemnify the
Company and Asiana for any damages incurred or to be incurred as a
result of failure to effectuate the Parent’s obligations
stated herein whether by reason of illegality or any other reasons
whatsoever.
(b) As
soon as reasonably practicable following approval by the SEC,
Parent shall distribute the Proxy Statement to the holders of
Parent Common Stock and Parent Warrants and, pursuant thereto,
shall call the Special Meeting in accordance with the Delaware
General Corporation Law (the “ DGCL ”) and,
subject to the other provisions of this Agreement, solicit proxies
from such holders to vote in favor of the adoption of this
Agreement and the approval of the Company Common Stock Purchase and
the other matters presented to the stockholders of Parent for
approval or adoption at the Special Meeting, including, without
limitation, the matters described in Section 5.1(a).
(c) Parent
shall comply with all applicable provisions of and rules under the
Exchange Act and all applicable provisions of the DGCL in the
preparation, filing and distribution of the Proxy Statement, the
solicitation of proxies thereunder, and the calling and holding of
the Special Meeting. Without limiting the foregoing, Parent shall
ensure that the Proxy Statement does not, as of the date on which
it is first distributed to holders of Parent Common Stock, and as
of the date of the Special Meeting, contain any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under
which they were made, not misleading (provided that Parent shall
not be responsible for the accuracy or completeness of any
information relating to the Company or the Stockholder any other
information furnished by the Company or the Stockholder for
inclusion in the Proxy Statement). The Company
represents and warrants that the information relating to the
Company supplied in writing by the Company and the Stockholder for
inclusion in the Proxy Statement will not as of the date on which
the Proxy Statement (or any amendment or supplement thereto) is
first distributed to holders of Parent Common Stock and Parent
Warrants or at the time of the Special Meeting contain any
statement which, at such time and in light of the circumstances
under which it is made, is false or misleading with respect to any
material fact, or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein
not false or misleading.
5.2
Access to Information . The Company and Asiana will afford
Parent and its financial advisors, accountants, counsel and other
representatives reasonable access during normal business hours,
upon reasonable notice, to the properties, books, records and key
personnel of the Company during the period prior to the Closing,
and subject to any applicable confidentiality agreements with third
parties, to obtain all information concerning the business,
including the status of business development efforts, properties,
results of operations and personnel of the Company as Parent may
reasonably request. No information or knowledge obtained
by Parent in any investigation pursuant to this Section 5.2 will
affect or be deemed to modify any representation or warranty
contained herein or the conditions to the obligations of the
parties to consummate the Company Common Stock Purchase.
Parent will afford the Company and its financial
advisors, underwriters, accountants, counsel and other
representatives reasonable access during normal business hours,
upon reasonable notice, to the properties, books, records and
personnel of Parent during the period prior to the Closing, and
subject to any applicable confidentiality agreements with third
parties, to obtain all information concerning the business,
including properties, results of operations and personnel of
Parent, as the Company may reasonably request. No
information or knowledge obtained by the Company in any
investigation pursuant to this Section 5.2 will affect or be deemed
to modify any representation or warranty contained herein or the
conditions to the obligations of the parties to consummate the
Company Common Stock Purchase.
This Section 5.2 will be applicable subject to
the provisions set forth in Section 6.19.
5.3
Commercially Reasonable Efforts . Upon the terms and subject
to the conditions set forth in this Agreement, each of the parties
agrees to use commercially reasonable efforts to diligently take,
or cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Company
Common Stock Purchase and the other transactions contemplated by
this Agreement, including using commercially reasonable efforts to
accomplish the following: (i) the obtaining of all necessary
actions, waivers, consents, approvals, orders and authorizations
from Governmental Entities and the making of all necessary
registrations, declarations and filings (including registrations,
declarations and filings with Governmental Entities, if any) and
the taking of all reasonable steps as may be necessary to avoid any
suit, claim, action, investigation or proceeding by any
Governmental Entity, (ii) the obtaining of all consents, approvals
or waivers from third parties required as a result of the
transactions contemplated in this Agreement, (iii) the defending of
any suits, claims, actions, investigations or proceedings, whether
judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including
seeking to have any stay or temporary restraining order entered by
any court or other Governmental Entity vacated or reversed and (iv)
the execution or delivery of any additional instruments reasonably
necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement. In
connection with and without limiting the foregoing, Parent and its
board of directors, and the Company and its board of directors,
shall, if any state takeover statute or similar statute or
regulation is or becomes applicable to the Company Common Stock
Purchase, this Agreement or any of the transactions contemplated by
this Agreement, use commercially reasonable efforts to enable the
Company Common Stock Purchase and the other transactions
contemplated by this Agreement to be consummated as promptly as
practicable on the terms contemplated by this
Agreement. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall be deemed to require
Parent or the Company to agree to any divestiture by itself of
shares of capital stock or of any business, assets or property, or
the imposition of any material limitation on the ability of any of
them to conduct their business or to own or exercise control of
such assets, properties and stock.
5.4
No Claim Against Trust Fund . Notwithstanding
anything else in this Agreement, the Company and the Stockholder
acknowledges that it has read Parent’s final prospectus dated
December 6, 2007 and understands that Parent has established a
certain trust account referenced in Section 2(c) of the Trust
Agreement dated December 6, 2007 (“ Trust Fund
”) for the benefit of Parent’s public stockholders and
that Parent may disburse monies from the Trust Fund only (a) to
Parent’s public stockholders in the event they elect to
convert their shares into cash in accordance with Parent’s
Charter Documents and/or the liquidation of Parent, (b) to Parent
after, or concurrently with, the consummation of a business
combination, and (c) to Parent in limited amounts for its working
capital requirements and tax obligations. The Company
and the Stockholder further acknowledge that, if the transactions
contemplated by this Agreement, or, upon termination of this
Agreement, another business combination, are not consummated by
December 6, 2009, Parent will be obligated to return to its
stockholders the amounts being held in the Trust
Fund. Accordingly, each of the Stockholder and the
Company, for itself and its subsidiaries, affiliated entities,
directors, officers, employees, stockholders, representatives,
advisors and all other associates, hereby waive all rights, title,
interest or claim of any kind against Parent to collect from the
Trust Fund any monies that may be owed to them by Parent for any
reason whatsoever, including but not limited to a breach of this
Agreement by Parent or any negotiations, agreements or
understandings with Parent (whether in the past, present or
future), and will not seek recourse against the Trust Fund at any
time for any reason whatsoever. This paragraph will
survive this Agreement and will not expire and will not be altered
in any way without the express written consent of Parent, the
Company and the Stockholder.
5.5
Insider Loans; Equity Ownership . The Company
agrees to list and provide to the Parent prior to the Closing and
make schedules for payment and / or performance of obligations
relating to: (i) any and all loans made by the Company to any
officer, director, employee, stockholder or holder of derivative
securities of the Company (“ Insider ”) to be
repaid to the Company and any other amount owed by such Insider to
the Company; (ii) guaranties or similar arrangements pursuant to
which the Company has guaranteed the payment or performance of
obligations of such Insider to a third party; (iii) any
and all direct equity interests in any Insider that utilizes the
name “Asiana IDT.” For the purpose of this Agreement,
the Insider shall mean any officer, director, employee, stockholder
or holder of derivative securities of the Company at or prior to
Closing.
5.6
Parent Borrowings; Indebtedness . At any time
prior to the Closing, Parent shall be allowed to borrow from its
directors, officers and/or stockholders to meet its reasonable
capital requirements, with any such loans to be made only as
reasonably required by the operation of Parent in due course on a
non-interest bearing basis and repayable at Closing from the Trust
Fund. Any indebtedness of Parent existing immediately
prior to the Closing shall be paid in full immediately upon the
release of funds from the Trust Fund.
5.7
Trust Fund Disbursement . Parent shall cause the
Trust Fund to be disbursed to Parent and as otherwise contemplated
by this Agreement immediately upon the Closing. All
liabilities and obligations of Parent due and owing or incurred at
or prior to the Effective Time shall be paid as and when due,
including all amounts payable (i) to stockholders who elect to have
their shares converted to cash in accordance with the provisions of
Parent’s Charter Documents, (ii) all amounts payable in
connection with any of the arrangements or transactions
contemplated by Section 5.8 (including all costs and expenses in
connection therewith), (iii) as deferred underwriters’
compensation in connection with Parent’s initial public
offering, (iv) for income tax or other tax obligations of Parent
prior to Closing, (v) as repayment of loans and reimbursement of
expenses to directors, officers and founding stockholders of Parent
and (vi) to third parties (e.g., professionals, printers, transfer
agents, etc.) who have rendered services to Parent in connection
with its operations and efforts to effect a business combination,
including the Company Common Stock Purchase.
5.8
Certain Actions with Respect to Parent Securities.
It is agreed that Parent shall be permitted to use
proceeds of the Trust Fund upon closing of the Company Common Stock
Purchase as necessary to fund agreements and arrangements relating
to the repurchase or redemption of the common stock issued by
Parent. Such repurchase or redemption described in this Section 5.8
shall be limited to the repurchase of stocks of stockholders who
vote against the transactions contemplated herein, for the purposes
of enhancing the likelihood of and securing approval of the
transactions contemplated hereby by the holders of the common
stocks issued by Parent.
5.9
Fees and Expenses . Except as may be otherwise agreed by the
parties hereunder or in separate written agreement(s), all fees and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expenses whether or not the Company Common Stock
Purchase is consummated.
5.10
Warrant Purchases and Redemption . Parent shall use
its best efforts to cause some or all of the owners of the
Sponsor Shares or a designee thereof or other third party, no
later than the record date of the Warrantholder Special Meeting, to
purchase 51% of the outstanding Warrants and to vote such Warrants
(the “ Acquired Warrants ”) at the Warrantholder
Special Meeting in favor of the proposals presented for
consideration to the holders of the Warrants thereat. At or
after the Closing, Parent shall redeem all outstanding
Warrants, including the Acquired Warrants, in accordance with
the terms of the Warrant Redemption; provided that the redemption
price to be paid by Parent for the Acquired Warrants shall not
exceed the purchase price paid by the purchasers of the Acquired
Warrants.
5.11
Sale Restrictions . No public market
sales of Asiana Shares issued as a result of the Company Common
Stock Purchase shall be made by Asiana and the Company and / or any
person in any manner related thereto during the period prescribed
by and as otherwise permitted pursuant by the lock-up agreement in
the form of Exhibit A hereto to be executed by Asiana in connection
with this Agreement.
5.12
Asiana Stock Purchase . On or before the date
that is two (2) weeks after the initial filing of the Proxy
Statement with the SEC but in no event later than October 15, 2009,
Asiana, at its own cost and expense, shall make best efforts to
purchase in the open market or by privately negotiated
transactions, at a price not greater than $7.95 per share, or
greater if reasonably acceptable to Asiana, a total of 129,870
shares of Parent Common Stock, which shares, together with the
Asiana Shares, shall constitute 50% plus 1 share of all outstanding
Parent Common Stock as of the Closing Date, including, without
limitation, all securities convertible into Parent Common Stock
existing on the Closing Date. If the Closing does not take place,
Mr. Sang-Chul Kim shall pay, within 15 days after the notice of
payment from Asiana, Asiana the amount which represents the
difference between the total purchase price paid by Asiana for the
shares of the Parent Common Stock purchased by Asiana pursuant to
this Section 5.12 and the total amount received by Asiana in the
liquidation of the Parent. Such guaranty shall be limited to
129,870 shares purchased prior to the time above mentioned and
shall not apply to any shares of Parent Common Stock that Asiana
purchases in excess of such amount. Notwithstanding the
foregoing sentence, the guaranty by Mr. Sang-Chul Kim for the
benefit of Asiana under this Section 5.12 shall be applicable and
triggered whether or not Asiana is able to purchase all of the
129,870 shares of the Parent Common Stock before the above
mentioned date. Asiana’s failure to complete the
purchase of the 129,870 shares of the Parent Common Stock by the
above stated deadline, despite its best efforts, shall not be a
breach of the terms of this Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1
Notices . All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally or by commercial delivery service, or sent via
telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like
notice):
Tremisis Energy
Acquisition Corporation II
Gangnam-Gu, Seoul, South Korea
135-270
Attention:
Chairman of the Board
Telephone: (82)(2)
575-0466
New York, New
York 10174-1901
Attention: David
Alan Miller, Esq.
Attention: Dong
Bok Yoon, Vice President
Telephone: 82-2-2127-8306
Strategic
Management Division
Kumho Asiana
Main Tower 25F
115, Sinmunno
1-ga, Jongno-gu
Attention: Seungoh
Hong, Vice President
Telephone:
82-2-6303-1610
47, Osae-dong,
Kangseo-gu
Attention: E
Bae Kim, Vice President
Telephone: 82-2-2669-3210
Strategic
Management Division
Kumho Asiana
Main Tower 25F
115, Sinmunno
1-ga, Jongno-gu
Attention: Seungoh
Hong, Vice President
Telephone: 82-2-6303-1610
6.2
Interpretation . The definitions of the terms
herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context shall require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms. When a reference is made in this Agreement
to an Exhibit or Schedule, such reference shall be to an Exhibit or
Schedule to this Agreement unless otherwise
indicated. When a reference is made in this Agreement to
Sections or subsections, such reference shall be to a Section or
subsection of this Agreement. Unless otherwise indicated
the words “include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without
limitation.” The table of contents and headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. When reference is made herein to “the
business of” an entity, such reference shall be deemed to
include the business of all direct and indirect Subsidiaries of
such entity. Reference to the Subsidiaries of an entity
shall be deemed to include all direct and indirect Subsidiaries of
such entity. For purposes of this Agreement:
(a) the
term “ Material Adverse Effect ” when used in
connection with the Company or Parent, as the case may be, means
any change, event, or occurrence, individually or when aggregated
with other changes, events, or occurrences, that is materially
adverse to the business, operations, financial results, financial
condition or material assets of the Company or Parent, as
applicable, and their respective Subsidiaries, taken as a whole
(and, in the case of Parent, both before and after giving effect to
the Company Common Stock Purchase); provided however that none of
the following alone or in combination shall be deemed, in and of
itself, to constitute a Material Adverse Effect: any changes,
events, occurrences or effects arising out of, resulting from or
attributable to (A) acts of war, sabotage or terrorism, or any
escalation or worsening of any such acts of war, sabotage or
terrorism, (B) earthquakes, hurricanes, tornados or other natural
disasters, (C) changes attributable to the public announcement or
pendency of the transactions contemplated hereby, (D) any change in
U.S. GAAP, or (E) with respect to the Company, except to the extent
they disproportionately affect the Company and its Subsidiaries,
conditions affecting (1) the industry in which the Company and its
Subsidiaries operate generally or (2) the U.S. economy or financial
markets generally.
(b) the
term “ Intellectual Property ” shall mean any or
all of the following and all worldwide common law and statutory
rights in, arising out of, or associated therewith: (i) patents and
applications therefor and all reissues, divisions, renewals,
extensions, provisional applications, continuations and
continuations-in-part thereof (“ Patents ”);
(ii) inventions (whether patentable or not), invention disclosures,
improvements, trade secrets, proprietary information, know how,
technology, technical data, and all documentation relating to any
of the foregoing; (iii) copyrights, copyrights registrations and
applications therefor, and all other rights corresponding thereto
throughout the world (“ Copyrights ”); (iv)
software and software programs; (v) domain names, (vi) industrial
designs and any registrations and applications therefor; (vii)
trade names, logos, common law trademarks and service marks,
trademark and service mark registrations and applications therefor
(collectively, “ Trademarks ”); (viii) all
databases and data collections and all rights therein; (ix) all
moral rights of authors, and (x) any similar or equivalent rights
to any of the foregoing (as applicable).
(c) the
term “ Legal Requirements ” means any federal,
state, local, municipal, foreign or other law, statute,
constitution, principle of common law, resolution, ordinance, code,
edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into
effect by or under the authority of any Governmental Entity and all
requirements set forth in applicable the Company Contracts or
Parent Contracts;
(d) the
term “ Person ” shall mean any individual,
corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership,
joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other
enterprise, association, organization, entity or Governmental
Entity;
(e) the
term “ knowledge ” means actual knowledge or
awareness as to a specified fact or event of a Person that is an
individual or of an executive officer or director of a Person that
is a corporation or of a Person in a similar capacity of an entity
other than a corporation;
(f) the
term “ Lien ” means any mortgage, pledge,
security interest, encumbrance, lien, restriction or charge of any
kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof, any sale
with recourse against the seller or any Affiliate of the seller, or
any agreement to give any security interest);
(g) the
term “ Affiliate ” means, as applied to any
Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with, such
Person; for purposes of this definition, “control”
(including with correlative meanings, the terms
“controlling,” “controlled by” and
“under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise; and
(h) the
term “ Governmental Entity ” shall mean any
United States federal or state court, administrative agency,
commission, governmental or regulatory authority or similar
body.
(i) the
term “ Business Combination ” shall mean
Parent’s completion of an acquisition of one or more
operating businesses or assets through a merger, stock exchange,
asset acquisition, reorganization or similar business combination,
with the requirements set forth in Sections 1.2(e) (time of
payment) and 1.3 (closing).
6.3
Counterparts; Electronic Delivery . This
Agreement and each other document executed in connection with the
transactions contemplated hereby, and the consummation thereof, may
be executed in one or more counterparts, all of which shall be
considered one and the same document and shall become effective
when one or more counterparts have been signed by each of the
parties and delivered to the other party, it being understood that
all parties need not sign the same counterpart. Delivery
by facsimile or electronic transmission to counsel for the other
party of a counterpart executed by a party shall be deemed to meet
the requirements of the previous sentence.
6.4
Entire Agreement; Third Party Beneficiaries
. This Agreement and the documents and instruments and
other agreements among the parties hereto as contemplated by or
referred to herein, including the Exhibits and Schedules hereto (a)
constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof (except to the extent
expressly stated to survive the execution of this Agreement and the
consummation of the transactions contemplated hereby); and (b) are
not intended to confer upon any other person any rights or remedies
hereunder (except as specifically provided in this
Agreement).
6.5
Severability . In the event that any provision of
this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision to
other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties
further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
6.6
Other Remedies; Specific Performance . Except as
otherwise provided herein, any and all remedies herein expressly
conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy will
not preclude the exercise of any other remedy. The
parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties
shall be entitled to seek an injunction or in
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