Exhibit 10.10
STOCK PURCHASE
AGREEMENT
STOCK PURCHASE AGREEMENT (this
“Agreement”), dated as of May 26, 2009, by and
between Shermen WSC Acquisition Corp. (“Buyer” or
“Shermen”) and the signatories on the execution page
hereof (each, a “Seller” and collectively, the
“Sellers”).
WHEREAS, Shermen was organized for
the purpose of effecting a merger, capital stock exchange, asset
acquisition or other similar business combination with an operating
business;
WHEREAS, Shermen consummated an
initial public offering on May 30, 2007 (the
“IPO”) that, in conjunction with certain other
transactions, resulted in $138 million being placed in a trust
account pending the consummation of a Business Combination, or the
dissolution and liquidation of Shermen, in the event it is unable
to consummate a Business Combination by May 30,
2009;
WHEREAS, Shermen has agreed to
purchase certain businesses from ED&F Man Holdings Limited
(together with its affiliates, “ED&F”) and certain
of its affiliates pursuant to a Transaction Agreement dated as of
November 25, 2008, and amended and restated as of May 1,
2009 (such Transaction Agreement, the “Transaction
Agreement” and such purchase, the “Business
Combination”);
WHEREAS, the approval of the
Business Combination is contingent upon, among other things, the
affirmative vote of a majority of shares of Shermen’s common
stock (“Common Stock”), par value $.0001 per share,
(a) voted by the holders of Common Stock issued in the IPO
(“Public Stockholders”) present and entitled to vote at
the meeting of Shermen’s stockholders to be held on
May 26, 2009 (as such meeting may be adjourned or postponed,
the “Stockholders Meeting”) and (b) outstanding as
of the record date for the Stockholders Meeting;
WHEREAS, pursuant to certain
provisions in Shermen’s amended and restated certificate of
incorporation, a Public Stockholder may, if such Public Stockholder
affirmatively votes against the Business Combination, elect that
Shermen convert such Public Stockholder’s shares of Common
Stock into cash (“Conversion Rights”);
WHEREAS, the Business Combination is
conditioned upon the exercise of Conversion Rights by holders of
less than 40% of Common Stock issued in the IPO;
WHEREAS, each Seller is the
beneficial owner of the number of shares of Common Stock set forth
on the execution page of this Agreement (the “Shares”)
and each Seller (a) beneficially owned the Shares as of the
close business on May 7, 2009 (the “Record Date”),
(b) has the shared right, together with its investment
advisor, to vote the Shares at the Stockholders Meeting and
(c) has the shared right, together with its investment
advisor, to exercise the conversion rights attached to the Shares
at the Stockholders Meeting; and
WHEREAS, each Seller desires to sell
to Buyer and Buyer, subject to the terms and conditions set forth
herein, desires to purchase from each Seller the Shares for the
purchase price per share set forth thereon (the “Purchase
Price Per Share”) and for the aggregate purchase price (the
“Aggregate Purchase Price”) set forth
thereon.
NOW, THEREFORE, in consideration of
the promises and the mutual covenants and obligations hereinafter
set forth, the parties hereto hereby agree as follows:
1. Purchase and Sale .
Subject to the terms and conditions set forth herein, each Seller
hereby agrees to sell to Buyer, and Buyer hereby agrees, subject to
the consummation of the Business Combination, to purchase from each
Seller, at the Closing (as defined below), the Shares at the
Purchase Price Per Share, for the Aggregate Purchase Price (as such
terms are defined below).
2. Closing .
2.1. The closing of the purchase of
the Shares (the “Closing”) by Buyer will be conditioned
on the consummation of the Business Combination and will occur on
or before the date that is two business days after the closing of
the Business Combination (such date, the “Closing
Date”). For purposes of clarity, and notwithstanding anything
in this Agreement to the contrary, in the event the closing of the
Business Combination does not occur by May 30, 2009, this
Agreement shall be null and void, ab initio, and no party hereto
shall have any rights or obligations under this
Agreement.
2.2. It shall be a condition to the
obligation of Buyer on the one hand and each Seller on the other
hand, to consummate the transfer of the Shares contemplated
hereunder that the other party’s representations and
warranties contained herein are true and correct on the Closing
Date with the same effect as though made on such date, unless
waived in writing by the party to whom such representations and
warranties are made.
2.3. At or before the Closing, each
Seller shall deliver or cause to be delivered to Buyer appropriate
instructions for book entry transfer of ownership of the Shares
from Seller to Buyer via the Depository Trust Company.
2.4. At or before the Closing, Buyer
shall deliver or cause to be delivered to each Seller payment,
through the settlement of a trade of the Shares through the
facilities of the Depository Trust Company by means of delivery
versus payment, of the Aggregate Purchase Price applicable to such
Seller.
2.5. Buyer hereby covenants and
agrees that following the Closing it shall comply with all filing
obligations, if any, under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), with respect to its
ownership of the Shares.
3. Representations and Warranties
of Seller .
3.1. Each Seller hereby represents
to Buyer on the date hereof and on the Closing Date
that:
(a) Sophisticated Seller .
Seller is sophisticated in financial matters and is able to
evaluate the risks and benefits attendant to the sale of the Shares
to Buyer.
(b) Independent Investigation
. Except as set forth in this Agreement, Seller, in making the
decision to sell the Shares to Buyer, has not relied upon any oral
or written
2
representations or assurances from Shermen,
ED&F, Buyer, or any of their officers, directors or employees
or any other representatives or agents of Buyer, ED&F or
Shermen. Seller has had access to and the opportunity to review all
of the filings made by Shermen with the SEC, pursuant to the
Exchange Act and the Securities Act of 1933 (the “Securities
Act”), in each case to the extent available publicly and
accessible via the SEC’s Electronic Data Gathering, Analysis
and Retrieval system (“EDGAR”).
(c) Authority . This
Agreement has been validly authorized, executed and delivered by
Seller and, assuming the due authorization, execution and delivery
thereof by Buyer, is a valid and binding agreement enforceable in
accordance
