STOCK PURCHASE
AGREEMENT
STOCK PURCHASE AGREEMENT (this “
Agreement ”) made as of this ____ day of October,
2009 by and among Secure America Acquisition Corporation, a
Delaware corporation (“ Secure ”), and Ultimate
Escapes Holdings, LLC, a Delaware limited liability company (the
“ Target ”), on the one hand, and the signatory
on the execution page hereof (“ Seller ”), on
the other, and solely for the purposes of Sections 4(d), 7 and
8 hereof, C. Thomas McMillen (“ McMillen ”),
Ultimate and Harvey L. Weiss, jointly and
severally (“ Weiss ,” and together
with McMillen and Ultimate, the “ Insiders
”).
WHEREAS, Secure was organized for the purpose of
acquiring, or acquiring control of, through a merger, capital stock
exchange, asset acquisition or other similar business combination,
one or more domestic or international operating businesses in the
homeland security industry, but not businesses that design, build
or maintain mission-critical facilities (“ Business
Combination ”);
WHEREAS, Secure consummated an initial public
offering in October 2007 (“ IPO ”) in connection
with which it raised gross proceeds of approximately $80 million, a
significant portion of which was placed in a trust account
maintained by Continental Stock Transfer and Trust Company pending
the consummation of a Business Combination, or the dissolution and
liquidation of Secure in the event it is unable to consummate a
Business Combination on or prior to October 29, 2009;
WHEREAS, Secure has entered into an agreement
pursuant to which, among other things, (i) it will contribute cash
to Ultimate, in exchange for membership units of the Target (the
“ Acquisition ”); and (ii) the owners of Target
immediately prior to the Acquisition will be able to exchange their
membership units of Target for shares of Secure’s common
stock, pursuant to the Contribution Agreement, dated as of
September 2, 2009 (the “ Contribution Agreement
”), by and among Secure, Ultimate Resort Holdings, LLC, the
Target and the member representative of the Target, and the Amended
and Restated Operating Agreement of the Target to be entered into
upon the consummation of the transactions contemplated by the
Contribution Agreement;
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 Secure
which are present and entitled to vote at the special meeting
called to approve the Acquisition;
WHEREAS, pursuant to certain provisions in
Secure’s certificate of incorporation, a holder of shares of
Secure’s common stock issued in the IPO (the “
Public Shares ”) may, if it votes against the
Acquisition, demand that Secure convert such Public Shares into
cash (which terms of such certificate of incorporation are the
subject of a proposal in the Company’s proxy statement to be
amended to provide that a holder of Public Shares may vote in favor
or against the Transaction and properly demand that Secure convert
such Public Shares into cash) (“ Conversion
Rights ”);
WHEREAS, the Acquisition cannot be consummated
if holders of 30% or more of the Public Shares vote against the
Acquisition and exercise their Conversion Rights; and
WHEREAS, Seller has agreed to sell to Secure and
Secure 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.
Purchase
. Seller hereby agrees to sell to Secure and Secure
hereby agree 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 Secure in Section 6
hereof are true and correct 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 Secure has complied in all
material respects with its obligations set forth in this Agreement
through such date, Seller hereby represents that it has not, and
agrees that it 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 (the “
Proxy Statement ”) filed by Secure with the 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 irrevocably appoints C. Thomas McMillen
and Harvey L. Weiss, and each of them, each with full power of
substitution, as its 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 Secure held on or prior to October 29,
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 Secure in
Section 6 hereof are true and correct 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
Secure has complied in all material respects with its obligations
set forth in this Agreement through such date.
3.
No Right to Additional
Shares . Seller hereby acknowledges that, by
virtue of the sale hereunder, Seller will no longer be a
stockholder of Secure, and the Shares shall be cancelled
automatically, shall cease to exist and shall represent only the
right to receive the Aggregate Purchase Price therefore in
accordance with the terms of this
Agreement. Additionally, Secure and Seller hereby agree
and acknowledge that this provision is material to this Agreement
and a significant consideration in Secure’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)
By no later than one business day of the
date of this Agreement, (i) Seller shall provide Secure 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 Shares or written confirmation of such
information as would appear on the voting instruction form; and
(ii) Secure shall send the notice attached as Annex I hereto
to Continental.
(b) Prior
to the closing of the Acquisition, Seller shall deliver or cause to
be delivered to Secure appropriate instructions for book entry
transfers of ownership of the Shares from Seller to
Secure.
(c) The
closing of the purchase and sale of the Shares (“
Closing ”) will occur on the date on which
Secure’s Trust Account is liquidated in connection with the
consummation of the Acquisition, which shall occur no later than
11:59 p.m. eastern time on October 29, 2009 (the “ Closing
Date ”). At the Closing, Secure shall pay
Seller the Aggregate Purchase Price by wire transfer from
Secure’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 shall
deliver the Shares to Secure electronically using the Depository
Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System
to an account specified by Secure. It shall be a
condition to the obligation of Secure on the one hand, and Seller
on the other hand, to consummate the transfer of the Shares
contemplated hereunder that such 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 time on October 29, 2009 and Secure has not dissolved and
liquidated its assets by November 9, 2009, then Secure shall pay to
Seller in immediately available funds, until Secure 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. Secure 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 time on
October 29, 2009.
(e) In
the event that the Acquisition is consummated and Seller has not
received the Aggregate Purchase Price by October 30, 2009, then
Secure 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 Secure 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
Secure.
(b)
Independent Investigation . Seller, in
making the decision to sell the Shares to Secure, has not relied
upon any oral or written representations or assurances from Secure
or any of its officers, directors or employees or any other
representatives or agents, except as are contained in this
Agreement. Seller has had access to all of the filings
made by Secure with the SEC, pursuant to the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
and the Securities Act of 1933, as 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 all other
parties hereto, 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 Secure . 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 Secure or any of its representatives or agents
for legal, tax or investment advice with
|
