Exhibit
10.2
STOCK PURCHASE
AGREEMENT
STOCK PURCHASE
AGREEMENT (this “ Agreement ”) made as of
this 22nd day of October, 2009 between Enterprise Acquisition
Company, Inc., a Delaware corporation (“ Buyer
” or “ Enterprise ”) and 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 November, 2007 (“
IPO ”) in connection with which it raised net
proceeds of approximately $247.5 million, a significant
portion of which was placed in a trust account 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 November 7, 2009;
and
WHEREAS, Buyer has
entered into that certain Agreement and Plan of Merger, dated July
29, 2009, among Enterprise, ARMOUR Residential REIT, Inc., a
Maryland corporation (" ARMOUR ") and ARMOUR Merger
Sub Corp., a Delaware corporation (" Merger Sub Corp.
") and a wholly-owned subsidiary of ARMOUR, pursuant to which (i)
Merger Sub Corp. will merge with and into Enterprise (the "
Merger ") with Enterprise surviving the merger and
becoming a wholly-owned subsidiary of ARMOUR and (ii) holders of
Enterprise securities (not exercising conversion rights as
described below) at the time of merger will be security holders of
ARMOUR. Upon consummation of the Merger, Enterprise's
outstanding common stock will be converted into like securities of
ARMOUR (the " ARMOUR Common Stock "), on a one-to-one
basis.
WHEREAS, the approval
of the Merger is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding common
shares of Enterprise at the special meeting called to approve the
Merger; and
WHEREAS, pursuant to
certain provisions in Buyer’s amended and restated
certificate of incorporation, a holder of shares of Buyer’s
common stock issued in the IPO may, if it votes against the Merger,
demand that Buyer convert such common shares into cash (“
Conversion Rights ”); and
WHEREAS the Merger
cannot be consummated if holders of 30% (or more or 50% or more, if
Enterprise stockholders approve an amendment to its amended and
restated articles of incorporation) of Enterprise 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, 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:
17.
Purchase
. Subject to
Section 7 , Seller hereby sells to Buyer and Buyer
hereby purchases from Seller at the Closing (as defined in
Section 4(c) ) the Shares at the Purchase Price Per
Share, for the Aggregate Purchase Price.
18.
Agreement not to
Convert; Appointment of Proxy and Attorney-in-Fact
. In further
consideration of the Aggregate Purchase Price, 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 Exchange Commission (the “ SEC
”) has passed. Accordingly, solely with respect to the
vote for the Merger and the other proposals set forth in the Proxy
Statement, Seller hereby agrees to upon request
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of Buyer vote in favor
of the Merger and such other proposals and appoints Daniel C.
Staton and Ezra Shashoua 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 November 7, 2009.
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 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).
19.
No Right to
Additional Shares . Enterprise's stockholders
of record are entitled to receive one share of ARMOUR Common Stock
for each share of Enterprise common stock owned immediately prior
to the consummation of the Merger (the “
Exchange ”). Although Seller will be a
stockholder of record immediately prior to the Merger, Seller
hereby acknowledges that Seller irrevocably waives any right, title
or interest it may have in receiving any such ARMOUR Common Stock
distributed pursuant to the Exchange. Seller hereby
acknowledges that by virtue of the sale hereunder, Seller will not
become a stockholder of ARMOUR, and the Shares shall automatically
be cancelled and shall cease to exist and shall represent only the
right to receive the Aggregate Purchase Price there for 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.
20.
Closing
Matters .
(a)
Within two business
days 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 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 1 hereto to Enterprise's transfer
agent.
(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; provided, that the instructions shall not be
effective until Closing.
(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 after the Merger is consummated (the “
Closing Date ”). The Company shall use
commercially reasonable efforts to cause the trust account to be
liquidated on the Closing Date but in no event shall such
liquidation occur more than one business day after the Closing
Date. At the Closing, Buyer shall pay Seller the Aggregate
Purchase Price by wire transfer from Enterprise's trust account of
immediately available funds to an account specified by Seller and
Seller against the 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. In the event the trust account does not
contain sufficient funds to satisfy the Purchase Price on the
Closing Date, Buyer shall pay Seller, by wire transfer, such
additional amounts from sources other than the trust account to
satisfy the Purchase Price. 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.
21.
Representations and
Warranties of the Seller . Seller hereby represents and
warrants to Buyer on the date hereof and on the Closing
that:
(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.
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(b)
Independent
Investigation . Except for the
representations contained in this Agreement, 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. Seller has had access to all of the filings
made by Enterprise and ARMOUR with the SEC, pursuant to the
Securities Exchange Act of 1934 (the “ Exchange
Act ”) and the Securities Act of 1933 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, exe
