AGREEMENT, dated
as of September 22, 2009 between Hicks Acquisition Company I,
Inc., a Delaware corporation (“ Parent ”), and
Milton Arbitrage Partners, LLC, a Delaware limited liability
company (“ Stockholder ”).
WHEREAS, Parent
has requested Stockholder, and Stockholder has agreed, to enter
into this Agreement with respect to the number of shares of common
stock, par value $0.001 per share, of Parent (“ Parent
Common Stock ”) set forth on Schedule 1 hereto that
Stockholder beneficially owns (the “ Shares
”).
WHEREAS,
Stockholder has agreed not to transfer any of the Shares to any
Person prior to the Closing of that certain Purchase and IPO
Reorganization Agreement dated as of August 2, 2009 (as
amended, the “ Transaction Agreement ”) among
the Parent, Resolute Holdings, LLC (the “ Company
”) and the other parties named therein, pursuant to which
Parent has agreed to merge with an affiliate of the Company (the
“ Transaction ”).
NOW, THEREFORE,
the parties hereto agree as follows:
ARTICLE 1
Purchase and
Sale
Section 1
. Purchase and Sale of the Shares . (a) at the Share
Sale Closing (as defined hereinafter), and subject to the
provisions of Sections 4.05 and 4.06, Stockholder and all of
its Affiliates shall sell to Parent, and Parent shall purchase from
Stockholder and all of its Affiliates, the Shares for a purchase
price per Share (the “ Purchase Price Per Share
”), in cash equal to $9.78. (the “ Purchase
Price ”).
(b) The
closing of the purchase and sale of the Shares shall occur on the
date on which (i) the Trust Account is liquidated and
(ii) Stockholder delivers the Shares to Parent (the
“Share Sale Closing”). Parent shall use commercially
reasonable efforts to cause the trust account to be liquidated on
the date of Closing but in no event shall such liquidation occur
more than three business days after the Closing. At the Share Sale
Closing, (i) in the case of Shares that are certificated,
(A) Parent shall cause its transfer agent to deliver to
Stockholder the aggregate Purchase Price, from the Account (as
defined hereinafter), for such Shares in immediately available
funds by wire transfer to the order of the Stockholder and
(B) Stockholder and all of its Affiliates shall deliver to
Parent a certificate or certificates evidencing such Shares duly
endorsed or accompanied by a written instrument or instruments of
transfer in form satisfactory to Parent’s transfer agent,
duly executed by Stockholder and its Affiliates or by the duly
appointed representative thereof and (ii) in the case of
Shares that are not
certificated,
(A) Stockholder (on behalf of itself and all of its
Affiliates) shall cause their respective brokers or banks to have
the Shares delivered to Parent’s transfer agent, Continental
Stock Transfer & Trust Company, electronically using the
Depository Trust Company’s DWAC (Deposit/Withdrawal At
Custodian) system and (B) Parent shall cause its transfer
agent to deliver to Stockholder the aggregate Purchase Price, from
the Account, for such Shares in immediately available funds by wire
transfer to the order of the Stockholder.
ARTICLE 2
Voting Agreement; Grant of
Proxy; waiver of rights
Section 2.01
. Voting Agreement . From the date hereof and until the
Closing, Stockholder and all if its Affiliates hereby agree to vote
or exercise their rights to consent with respect to the Shares at
the time of any stockholder vote or action by written consent to
approve and adopt, as set forth in the Company’s proxy
statement: (i) the Transaction; (ii) amendments to the
Parent Certificate of Incorporation; (iii) the adjournment
proposal; (iv) the election of four directors; and
(v) any actions related thereto at any meeting of the
stockholders of Parent, and at any adjournment thereof, at which
the Transaction Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for
the consideration and vote of the stockholders of Parent.
Stockholder and all of its Affiliates hereby agree that they will
not vote any of the Shares in favor of, or consent to, and will
vote against and not consent to, the approval of any corporate
action the consummation of which would frustrate the purposes, or
prevent or delay the consummation, of the transactions contemplated
by the Transaction Agreement; provided , however ,
Stockholder shall have no obligation to vote in favor of any
extension of time beyond the current Termination Date as set forth
in Parent’s Amended and Restated Certificate of
Incorporation.
Section 2.02
. Irrevocable Proxy . Stockholder and all of its Affiliates
hereby revoke any and all previous proxies granted with respect to
the Shares. By entering into this Agreement, Stockholder and all of
its Affiliates hereby grant a proxy appointing Parent as the
attorney-in-fact and proxy of Stockholder and all of its
Affiliates, with full power of substitution, for and in the
Stockholder’s and all of its Affiliates’ name, to vote,
express consent or dissent, or otherwise to utilize such voting
power in the manner contemplated by Section 2.01 as Parent or its
proxy or substitute shall, in Parent’s sole discretion, deem
proper with respect to the Shares. The proxy granted by Stockholder
and all of its Affiliates pursuant to this Article 2.02 is
irrevocable and is granted in consideration of Parent entering into
this Agreement. The proxy granted by Stockholder and all of its
Affiliates shall be revoked upon termination of this Agreement in
accordance with its terms. If the Stockholder and all of its
Affiliates are not the record holders of the Shares, concurrent
with the execution of this Agreement, Stockholder (on behalf of
itself and all of its Affiliates) shall cause their respective
brokers or
2
banks to
deliver to Parent a legal proxy, substantially in form of
Exhibit A attached hereto.
Section 2.03.
Waiver of Right of Redemption . By entering into this
Agreement, Stockholder and all of its Affiliates hereby waive their
rights to redeem the Shares. The waiver granted by Stockholder and
all of its Affiliates pursuant to this Article 2.03 is
irrevocable and is granted in consideration of Parent entering into
this Agreement. The waiver granted by Stockholder and all of its
Affiliates shall be revoked upon the Termination of this
Agreement.
ARTICLE 3
Representations and
Warranties of Stockholder
Stockholder
represents and warrants to Parent as of the date hereof and as of
the Share Sale Closing that:
Section 3.01
. Authorization . The execution, delivery and performance by
Stockholder of this Agreement and the consummation by Stockholder
of the transactions contemplated hereby are within the corporate
and all other powers of Stockholder and have been duly authorized
by all necessary corporate and all other action. This Agreement
constitutes a valid and binding Agreement of
Stockholder.
Section 3.02
. Non-Contravention . The execution, delivery and
performance by Stockholder of this agreement and the consummation
of the transactions contemplated hereby do not and will not (i)
violate the certificate of incorporation or bylaws of Stockholder,
(ii) require any consent or other action by any Person under,
constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any
benefit to which Stockholder or any of its Affiliates is entitled
under any provision of any agreement or other instrument binding on
such Person or (iii) result in the imposition of any Lien on
any asset of Stockholder or any of its Affiliates.
Section 3.03
. Ownership of Shares . Each of Stockholder and its
Affiliates is the legal and beneficial owner of the Shares, free
and clear of any Lien and any other limitation or restriction
(including any restriction on the right to vote or otherwise
dispose of the Shares). None of the Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting
of such Shares.
Section 3.04
. Total Shares . The Shares being purchased by Parent
pursuant to this Agreement and set forth on Schedule 1
represent all the Parent Common Stock owned by Seller as of the
date hereof.
Section 3.05
Information . (a) Stockholder is an informed and
sophisticated investor, and has engaged expert advisors,
experienced in transactions of the type contemplated by this
Agreement. Stockholder has been
3
given the
opportunity to ask questions of and receive answers from Parent
concerning Parent and the Company, the consideration to be
received, the transactions contemplated herein and all other
related matters. Stockholder further represents that it has been
furnished with, and has evaluated, all information it deems
necessary, desirable and appropriate to evaluate the merits and
risks of the transactions contemplated herein and has received such
legal and financial other advice as deemed to be necessary,
desirable and appropriate to enable it to make an informed and
intelligent decision with respect to the execution, delivery and
performance of this Agreement. In evaluating the suitability of the
transactions contemplated herein, Stockholder has not relied upon
any other representations or other information (other than as
contemplated by the preceding sentences and this Agreement) whether
oral or written made by or on behalf of Parent.
(b) Each of
Stockholder and its Affiliates understands and acknowledges that
Parent has access to (and may be or is in possession of )
information about the Company, Parent and the Shares (which may
include material, non-public information) that may be or is
material and superior to the information available to Stockholder
and its Affiliates, that Stockholder and its Affiliates do not have
access to such information, and that Parent is not sharing any such
information with Stockholder or its Affiliates. Each of Stockholder
and its Affiliates represents to Parent that it, together with its
professional advisers, is capable of evaluating the risks
associated with a transaction involving the Shares, including the
risk of transacting on the basis of inferior information, and that
it is capable of sustaining any loss resulting therefrom without
material injury.
Section 3.06
Finder’s Fees . No investment banker, broker, finder
or other intermediary is entitled to a fee or commission from
Parent or the Company in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of Stockholder or any
of its Affiliates.
ARTICLE 4
Representations and
Warranties of Parent
Parent represents
and warrants to Stockholder and its Affiliates as of the date
hereof and as of the Share Sale Closing that:
Section 4.01
. Authorization . T
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