Exhibit 10.11
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 signatory on the execution page
hereof (“Seller”).
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 approximately $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 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, Seller is the legal and
beneficial owner of the number of shares of Common Stock set forth
on the execution page of this Agreement (the “Shares”)
and Seller (a) owned the Shares as of the close business on
May 7, 2009 (the “Record Date”), (b) has the
sole and exclusive right to vote the Shares at the Stockholders
Meeting and (c) has the sole and exclusive right to exercise
the conversion rights attached to the Shares at the Stockholders
Meeting; and
WHEREAS, Seller desires to sell to
Buyer and Buyer, subject to the terms and conditions set forth
herein, desires to purchase from 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 and subject to
the consummation of the Business Combination, Seller hereby agrees
to sell to Buyer, and Buyer hereby agrees to purchase from 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. Covenants of Seller .
Seller hereby agrees and covenants as follows:
2.1. Seller shall vote any and all
of its Shares in favor of the Business Combination and all other
proposals brought by Shermen at the Stockholders
Meeting.
2.2. Because the Record Date to vote
on the proposals set forth in the definitive proxy statement filed
by Shermen with the U.S. Securities and Exchange Commission (the
“Proxy Statement”) on May 14, 2009 has passed,
Buyer would not be entitled to vote the Shares at the Stockholders
Meeting contemplated by the Proxy Statement. Accordingly, solely
with respect to the vote for the Business Combination and the other
proposals set forth in the Proxy Statement, the Seller hereby
irrevocably appoints Francis P. Jenkins, Jr. and Francis P.
Jenkins, III and each of them each with full power of substitution,
as his proxy and attorney-in-fact, to the full extent of
Seller’s rights with respect to the Shares (and any and all
other shares or securities or rights issued or issuable in respect
thereof) to vote in such manner as each such person or his
substitute shall in his sole discretion deem proper, and to
otherwise act (including without limitation acting by written
consent) with respect to all the Shares at any meeting of
stockholders (whether annual or special and whether or not an
adjourned meeting) of Shermen held prior to May 31, 2009.
Except as set forth below, this proxy is coupled with an interest
and is irrevocable, execution by Seller of this Agreement shall
revoke, without further action, all prior proxies granted by the
Seller at any time with respect to the Shares (and such other
shares or other securities) and no subsequent proxies will be given
by the Seller (and if given will be deemed not to be effective).
Alternatively, at the direction of Buyer, Seller will direct the
financial institution through which the Shares are held, to vote
the Shares “For” at the Stockholders Meeting or any
postponement or adjournment thereof.
2.3. Attached hereto as Annex A is a
true and correct copy of the voting information form with respect
to the Shares held by Seller indicating the financial institution
through which the Shares are held and the control number regarding
the voting of the Shares (the “Control Number”), or
written confirmation of such information as would appear on the
voting information form. Seller agrees that Buyer may use the
Control Number to vote the Shares pursuant to Section 2.2
above.
3. Closing .
3.1. The closing of the purchase and
sale of the Shares (the “Closing”) will be conditioned
on the consummation of the Business Combination and will occur on
the date of 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.
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3.2. It shall be a condition to the
obligation of Buyer on the one hand and the 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.
3.3. At or before the Closing,
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.
3.4. At or before the Closing, Buyer
shall deliver or cause to be delivered to Seller payment, by wire
transfer of immediately available funds or through the settlement
of a trade of the Shares through the facilities of the Depository
Trust Company, the
