STOCK PURCHASE
AGREEMENT (this “ Agreement ”) made as of
this [___]st day of September, 2009 between Hicks Acquisition
Company I, Inc., a Delaware corporation (“
Buyer ” or “ HACI ”),
the signatory on the execution page hereof (“
Seller ”).
WHEREAS, Buyer was
organized for the purpose of acquiring, through a merger, capital
stock exchange, asset acquisition or other similar business
combination, an operating business (“ Business
Combination ”); and
WHEREAS, Buyer
consummated an initial public offering in October, 2007 (“
IPO ”) in connection with which it raised net
proceeds of approximately $529.1 million, a significant
portion of which was placed in a trust account (the “
Trust Account ”) maintained by Continental
Stock Transfer and Trust Company (“ Trustee
”) pending the consummation of a Business Combination, or the
dissolution and liquidation of Buyer in the event it is unable to
consummate a Business Combination on or prior to September 28,
2009 (or October 5, 2009 in the event that the Acquisition is
approved by Buyer stockholders); and
WHEREAS, Buyer has
entered into that certain Purchase and IPO Reorganization Agreement
dated as of August 2, 2009, by and among HACI, Resolute Energy
Corporation, a Delaware corporation (the “ REC
”), Resolute Subsidiary Corporation, a Delaware corporation,
Resolute Aneth, LLC, a Delaware limited liability company, Resolute
Holdings, LLC, a Delaware limited liability company, Resolute
Holdings Sub, LLC, a Delaware limited liability company (“
Holdings Sub ”), and HH-HACI, L.P., a Delaware
limited partnership (the “ Acquisition
Agreement ”), pursuant to which, through a series of
transactions, HACI stockholders will acquire a majority of the
outstanding common stock of REC, par value $0.0001 per share (the
“ REC Common Stock ”), and REC will
acquire HACI and the business and operations of Holdings Sub
(collectively, the “ Acquisition ”);
and
WHEREAS, the
approval of the Acquisition is contingent upon, among other things,
the affirmative vote of holders of a majority of the outstanding
common shares of HACI at the special meeting called to approve the
Acquisition; and
WHEREAS, pursuant
to certain provisions in Buyer’s certificate of
incorporation, a holder of shares of Buyer’s common stock
issued in the IPO may, if it votes against the Acquisition, demand
that Buyer convert such common shares into cash (“
Conversion Rights ”); and
WHEREAS, the
Acquisition cannot be consummated if holders of 30% or more of HACI
common stock issued in the IPO exercise their Conversion Rights;
and
WHEREAS, Seller
has agreed to sell to Buyer and Buyer has agreed to purchase from
Seller the common shares set forth on the execution page of this
Agreement (“ Shares ”) for the purchase
price per share set forth therein (“ Purchase Price Per
Share ”) and for the aggregate purchase price set
forth therein (“ Aggregate Purchase Price
”).
NOW, THEREFORE,
for and in consideration of the mutual covenants hereinafter set
forth and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as
follows:
1
1.
Purchase . Subject to Section 8 , Seller hereby
agrees to sell to Buyer and Buyer hereby agrees to purchase from
Seller at the Closing (as defined in Section 4(c) ) the
Shares at the Purchase Price Per Share, for the Aggregate Purchase
Price.
2.
Agreement not to Convert; Appointment of Proxy and
Attorney-in-Fact . In further consideration of the Aggregate
Purchase Price, provided that the representations and warranties
made by Buyer in Section 6 hereof are true and correct
in all material respects on the date of the stockholder meeting in
connection with the approval of the Acquisition with the same
effect as though made on such date and Buyer has complied in all
material respects with its obligations set forth in this Agreement
through such date, Seller hereby agrees it has not and will not
exercise its Conversion Rights or, if it has already exercised its
Conversion Rights, it hereby withdraws and revokes such exercise
and will execute all necessary documents and take all actions
required in furtherance of such revocation. Seller acknowledges
that the record date to vote on the proposals set forth in the
proxy statement/prospectus (the “ Proxy
Statement ”) filed by Buyer with the U.S. Securities
and Exchange Commission (the “ SEC ”) has
passed. Accordingly, solely with respect to the vote for the
Acquisition and the other proposals set forth in the Proxy
Statement, Seller hereby agrees to upon request of Buyer vote in
favor of the Acquisition and such other proposals and appoints
Joseph B. Armes and Robert M. Swartz 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 Buyer held on or prior to September 28,
2009. This proxy is coupled with an interest in the Shares and is
irrevocable. Execution by Seller of this Agreement shall revoke,
without further action, all prior proxies granted by Seller at any
time with respect to the Shares (and such other shares or other
securities), and no subsequent proxies will be given by Seller (and
if given will be deemed not to be effective), provided that the
representations and warranties made by Buyer in
Section 6 hereof are true and correct in all material
respects on the date of the stockholder meeting in connection with
the approval of the Acquisition with the same effect as though made
on such date and Buyer has complied in all material respects with
its obligations set forth in this Agreement through such date. This
section 2 shall be governed by the laws of the State of
Delaware.
3. No
Right to Additional Shares . HACI’s stockholders of
record are entitled to receive one share of REC Common Stock for
each share of HACI common stock owned immediately prior to the
consummation of the Acquisition (the “ Exchange
”). Although Seller will be a stockholder of record
immediately prior to the Acquisition, Seller hereby acknowledges
that Seller irrevocably waives any right, title or interest it may
have in receiving any such REC Common Stock distributed pursuant to
the Exchange. Seller hereby acknowledges that by virtue of the sale
hereunder, Seller will not become a stockholder of REC, and the
Shares shall automatically be cancelled and shall cease to exist
and shall represent only the right to receive the Aggregate
Purchase Price therefor in accordance with the terms of this
Agreement. Additionally, each of Buyer and Seller hereby agree and
acknowledge that this provision is material to this Agreement and a
significant consideration in Buyer’s willingness to enter
into this Agreement. Notwithstanding the foregoing, such waiver
shall not be effective in the event that Seller does not receive
the Aggregate Purchase Price pursuant to the terms of this
Agreement.
(a)
Within one business day of the date of this Agreement,
(i) Seller shall provide Buyer with a true and correct copy of
the voting instruction form with respect to the Shares held by
Seller indicating the financial institution through which such
shares are held and the control number provided by Broadridge
Financial Solutions (or other similar service provider) regarding
the voting of the
2
Shares or
written confirmation of such information as would appear on the
voting instruction form; and (ii) Buyer shall send the notice
attached as Annex I hereto to Trustee.
(b) Prior
to the Closing, Seller shall deliver or cause to be delivered to
Buyer appropriate instructions for book entry transfers of
ownership of the Shares from Seller to Buyer.
(c) The
closing of the purchase and sale of the Shares (“
Closing ”) will occur on the date on which
Buyer’s Trust Account is liquidated in connection with the
consummation of the Acquisition, which shall occur no later than
11:59 p.m. eastern daylight time on September 28, 2009
(or 11:59 p.m. eastern daylight time on September 30, 2009 in
the event that the Acquisition is approved by Buyer stockholders)
(the “ Closing Date ”). At the Closing,
Buyer shall pay Seller the Aggregate Purchase Price by wire
transfer from HACI’s Trust Account of immediately available
funds in accordance with the Irrevocable Instructions attached as
Annex I hereto to an account specified by Seller and Seller
against delivery of the Shares shall deliver the Shares to Buyer
electronically using the Depository Trust Company’s DWAC
(Deposit/Withdrawal at Custodian) System to an account specified by
Buyer. It shall be a condition to the obligation of Buyer on the
one hand and Seller on the other hand, to consummate the transfer
of the Shares contemplated hereunder that the other party’s
representations and warranties 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.
(d) In
the event that the Acquisition is not consummated by
11:59 p.m. eastern daylight time on September 28, 2009
(or 11:59 p.m. eastern daylight time on September 30,
2009 in the event that the Acquisition is approved by Buyer
stockholders) and Buyer has not dissolved and liquidated its assets
by September 30, 2009, then Buyer shall pay to Seller in
immediately available funds, until Buyer liquidates and distributes
its assets to its stockholders, an amount equal to the lesser of
(i) 4.0% of the Purchase Price Per Share per month (pro-rated
on a daily basis based on the date when payment is required and the
date such payment is made) or (ii) the highest lawful rate,
for each Share held by Seller from the date such payment was
required to be made through the date such payment is actually made.
Buyer agrees to promptly dissolve and liquidate and distribute its
assets in accordance with Delaware law if the Acquisition is not
consummated by 11:59 p.m. eastern daylight time on
September 28, 2009 (or 11:59 p.m. eastern daylight time
on September 30, 2009 in the event that the Acquisition is
approved by Buyer stockholders).
(e) In
the event that the Acquisition is consummated and Seller has not
received the Aggregate Purchase Price by September 30, 2009,
then Buyer shall pay to Seller in immediately available funds an
amount equal to the lesser of (i) 4.0% of the Purchase Price
Per Share per month (pro-rated on a daily basis based on the date
when payment is required and the date such payment is made) or (ii)
the highest lawful rate, for each Share held by Seller from the
date such payment was required to be made through the date such
payment is actually made.
5.
Representations and Warranties of the Seller . Seller makes
the following representations and warranties to and for the benefit
of Buyer on the date hereof and on the Closing.
(a)
Sophisticated Seller . Seller is sophisticated in financial
matters and is able to evaluate the risks and benefits attendant to
the sale of Shares to Buyer.
(b)
Independent Investigation . Seller, in making the decision
to sell the Shares to Buyer, has not relied upon any oral or
written representations or assurances from Buyer or any of its
officers, directors or employees or any other representatives or
agents of Buyer, except as are contained in this Agreement. Seller
has had access to all of the filings made by HACI with the SEC,
pursuant to the Securities Exchange Act of 1934 (the “
Exchange Act ”) and the Securities Act of 1933,
as
3
amended (the
“ Securities Act ”) in each case to the
extent available publicly via the SEC’s Electronic Data
Gathering, Analysis and Retrieval system.
(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 with its terms,
subject to the general principles of equity and to bankruptcy or
other laws affecting the enforcement of creditors’ rights
generally. The execution, delivery and performance of this
Agreement by Seller does not and will not conflict with, violate or
cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to
which Seller is a party which would prevent Seller from performing
its obligations hereunder or (ii) any law, statute, rule or
regulation to which Seller is subject.
(d)
No Legal Advice from Buyer . Seller acknowledges that it has
had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with Seller’s own legal
counsel and investment and tax advisors. Seller is not relying on
any statements or representations of Buyer or any of its
representatives or agents for legal, tax or investment advice with
respect to this Agreement or the transactions contemplated by the
Agreement. Seller represents, warrants and covenants that any
actions that it takes with respect to common stock of Buyer will be
in compliance with applicable securities laws.
(e)
Ownership of Shares . Seller is the legal and beneficial
owner of the Shares and will transfer to Buyer on the Closing Date
good title to the Shares free and clear of any liens, claims,
security interests, options, charges or any other encumbrance
whatsoever, except as otherwise agreed to in writing to Buyer.
Seller has the sole right to exercise Conversion Rights with
respect to the Shares.
(f)
Number of Shares . The Shares being transferred pursuant to
this Agreement represent all the common stock owned by Seller as of
the date hereof.
(g)
Aggregate Purchase Price Negotiated . Seller represents that
both the amount of Shares and the Aggregate Purchase Price were
negotiated figures by the parties and that the terms and conditions
by the parties of this Agreement may differ from arrangements
entered into with other holders of Buyer’s common
stock.
(h)
Seller Taxes . Seller understands that Seller (and not the
Buyer) shall be responsible for any and all tax liabilities of
Seller that may arise as a result of the transactions contemplated
by this Agreement.
6.
Representations, Warranties and Covenants of Buyer . Buyer
makes the following representations, warranties and covenants to
and for the benefit of Seller on the date hereof and on the
Closing.
(a)
Sophisticated Buyer . Buyer is sophisticated in financial
matters and is able to evaluate the risks and benefits attendant to
the purchase of Shares from Seller.
|
