SCG Financial Acquisition Corp.
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January
28, 2011
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SCG
Financial Holdings LLC
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Ladies
and Gentlemen:
We are
pleased to accept the offer SCG Financial Holdings LLC (the “Subscriber” or
“you”) has made to purchase 2,190,477 shares of common stock (the “Shares”),
$.0001 par value per share (the “Common Stock”), up to 285,715 of which are
subject to complete or partial forfeiture (the “forfeiture”) by you if the
underwriters of the initial public offering (“IPO”) of SCG Financial Acquisition
Corp., a Delaware corporation (the “Company”), do not fully exercise their
over-allotment option (the “Over-allotment Option”). Additionally, up
to 410,714 of such Shares are subject to complete forfeiture (depending on the
exercise of the Over-allotment Option) if the Company’s common stock, following
its consummation of a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or similar business combination with one or more
businesses (the “Business Combination”), if the trading price of the Common
Stock does not exceed $12.00 per share for any 20 trading days within any 30
trading day period within 24 months of the closing of the Business
Combination. The terms (this “Agreement”) on which the Company is
willing to sell the Shares to the Subscriber, and the Company and the
Subscriber’s agreements regarding such Shares, are as follows:
1. Purchase of Common
Stock. For the sum of $25,000 (the “Purchase Price”), which
the Company acknowledges receiving in cash, the Company hereby sells and issues
the Common Stock to the Subscriber, and the Subscriber hereby purchases the
Shares from the Company, subject to forfeiture, on the terms and subject to the
conditions set forth in this Agreement. Concurrently with the
Subscriber’s execution of this Agreement, the Company is delivering to the
Subscriber a certificate registered in the Subscriber’s name representing the
Shares (the “Original Certificate”), receipt of which the Subscriber hereby
acknowledges.
2. Representations, Warranties
and Agreements.
2.1 Subscriber’s
Representations, Warranties and Agreements. To induce the
Company to issue the Shares to the Subscriber, the Subscriber hereby represents
and warrants to the Company and agrees with the Company as follows:
2.1.1. No Government Recommendation
or Approval. The Subscriber understands that no United States
federal or state agency or similar agency of any other country has passed upon
or made any recommendation or endorsement of the offering of the
Shares.
2.1.2. No Conflicts. The
execution, delivery and performance of this Agreement and the consummation by
the Subscriber of the transactions contemplated hereby do not violate, conflict
with or constitute a default under (i) the formation and governing documents of
the Subscriber, (ii) any agreement, indenture or instrument to which the
Subscriber is a party or (iii) any law, statute, rule or regulation to which the
Subscriber is subject, or any agreement, order, judgment or decree to which the
Subscriber is subject.
2.1.3. Organization and
Authority. The Subscriber is an Illinois limited liability
company, validly existing and in good standing under the laws of Illinois and
possesses all requisite power and authority necessary to carry out the
transactions contemplated by this Agreement. Upon execution and
delivery by you, this Agreement is a legal, valid and binding agreement of
Subscriber, enforceable against Subscriber in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting the enforcement of creditors’
rights generally and subject to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
2.1.4. Experience, Financial
Capability and Suitability. Subscriber is: (i) sophisticated
in financial matters and is able to evaluate the risks and benefits of the
investment in the Shares and (ii) able to bear the economic risk of its
investment in the Shares for an indefinite period of time because the Shares
have not been registered under the Securities Act and therefore cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available. Subscriber has substantial experience
in evaluating and investing in transactions of securities in companies similar
to the Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own
interests. Subscriber must bear the economic risk of this investment
until the Shares are sold pursuant to: (i) an effective registration statement
under the Securities Act or (ii) an exemption from registration available with
respect to such sale. Subscriber is able to bear the economic risks
of an investment in the Shares and to afford a complete loss of Subscriber’s
investment in the Shares.
2.1.5. Access to Information;
Independent Investigation. Prior to the execution of this
Agreement, the Subscriber has had the opportunity to ask questions of and
receive answers from representatives of the Company concerning an investment in
the Company, as well as the finances, operations, business and prospects of the
Company, and the opportunity to obtain additional information to verify the
accuracy of all information so obtained. In determining whether to
make this investment, Subscriber has relied solely on Subscriber’s own knowledge
and understanding of the Company and its business based upon Subscriber’s own
due diligence investigation and the information furnished pursuant to this
paragraph. Subscriber understands that no person has been authorized
to give any information or to make any representations which were not furnished
pursuant to this Section 2 and Subscriber has not relied on any other
representations or information in making its investment decision, whether
written or oral, relating to the Company, its operations and/or its
prospects.
2.1.6. Regulation D
Offering. Subscriber represents that it is an “accredited
investor” as such term is defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the “Securities Act”) and acknowledges the
sale contemplated hereby is being made in reliance on a private placement
exemption to “accredited investors” within the meaning of Section 501(a) of
Regulation D under the Securities Act or similar exemptions under state
law.
2.1.7. Investment
Purposes. The Subscriber is purchasing the Shares solely for
investment purposes, for the Subscriber’s own account and not for the account or
benefit of any other person, and not with a view towards the distribution or
dissemination thereof and the Subscriber has no present arrangement to sell the
interest in the Shares to or through any person or entity. The
Subscriber did not decide to enter into this Agreement as a result of any
general solicitation or general advertising within the meaning of Rule 502 under
the Securities Act.
2.1.8. Restrictions on Transfer;
Shell Company. Subscriber understands the Shares will be “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act and
Subscriber understands that the certificates representing the Shares will
contain a legend in respect of such restrictions. If in the future
the Subscriber decides to offer, resell, pledge or otherwise transfer the
Shares, such Shares may be offered, resold, pledged or otherwise transferred
only pursuant to: (i) registration under the Securities Act, or (ii) an
available exemption from registration. Subscriber agrees that if any transfer of
its Shares or any interest therein is proposed to be made, as a condition
precedent to any such transfer, Subscriber may be required to deliver to the
Company an opinion of counsel satisfactory to the Company. Absent
registration or an exemption, the Subscriber agrees not to resell the
Shares. Subscriber further acknowledges that because the Company is a
shell company, Rule 144 may not be available to the Subscriber for the resale of
the Shares until one year following consummation of the initial business
combination of the Company, despite technical compliance with the requirements
of Rule 144 and the release or waiver of any contractual transfer
restrictions.
2.1.9. No Governmental
Consents. No governmental, administrative or other third party
consents or approvals are required, necessary or appropriate on the part of
Subscriber in connection with the transactions contemplated by this
Agreement.
2.2 Company’s Representations,
Warranties and Agreements. To induce the Subscriber to
purchase the Shares, the Company hereby represents and warrants to the
Subscriber and agrees with the Subscriber as follows:
2.2.1 Organization and Corporate
Power. The Company is a Delaware corporation and is qualified to do
business in every jurisdiction in which the failure to so qualify would
reasonably be expected to have a material adverse effect on the financial
condition, operating results or assets of the Company. The Company possesses all
requisite corporate power and authority necessary to carry out the transactions
contemplated by this Agreement.
2.2.2. No Conflicts. The
execution, delivery and performance of this Agreement and the consummation by
the Company of the transactions contemplated hereby do not violate, conflict
with or constitute a default under (i) the Certificate of Incorporation or
Bylaws of the Company, (ii) any agreement, indenture or instrument to which the
Company is a party or (iii) any law, statute, rule or regulation to which the
Company is subject, or any agreement, order, judgment or decree to which the
Company is subject.
2.2.3. Title to Securities.
Upon issuance in accordance with, and payment pursuant to, the terms hereof, the
Shares will be duly and validly issued, fully paid and nonassessable. Upon
issuance in accordance with, and payment pursuant to, the terms hereof the
Subscriber will have or receive good title to the Shares, free and clear of all
liens, claims and encumbrances of any kind, other than (a) transfer restrictions
hereunder and other agreements to which the Shares may be subject, (b) transfer
restrictions under federal, state and foreign securities laws, and (c) liens,
claims or encumbrances imposed due to the actions of the
Subscriber.
2.2.4. No Adverse
Actions. There are no actions, suits, investigations or
proceedings pending, threatened against or affecting the Company which: (i) seek
to restrain, enjoin, prevent the consummation of or otherwise affect the
transactions contemplated by this Agreement or (ii) question the validity or
legality of any transactions or seeks to recover damages or to obtain other
relief in connection with any transactions.
3. Forfeiture of
Shares.
3.1. Partial or No Exercise of
the Over-allotment Option. In the event the Over-allotment
Option granted to the representative of the underwriters of the Company’s IPO is
not exercised in full, the Subscriber acknowledges and agrees that it shall
forfeit any and all rights to such number of Shares (up to an aggregate of
285,715 Shares and pro rata based upon the percentage of the Over-allotment
Option exercised) such that immediately following such forfeiture, the
Subscriber (and all other initial shareholders prior to the IPO, if any) will
own an aggregate number of Shares (not including Shares issuable upon exercise
of any warrants or any Common Stock purchased by Subscriber in the Company’s IPO
or in the aftermarket) equal to 16% of the issued and outstanding Common Stock
immediately following the IPO.
3.2. Stock Price
Target. In the event the trading price of the Company’s Common
Stock does not exceed $12.00 per share for any 20 trading days within any 30
trading day period within 24 months of the closing of the Business Combination,
then up to 410,714 of the Shares are subject to complete
forfeiture. The exact number of Shares subject to this Section 3.2
shall depend upon the exercise (or non-exercise) of all or a portion of the
Over-allotment Option such that 18.75% of the Shares issued to Subscriber (or 3%
of the Common Stock outstanding immediately following the IPO) are subject to
forfeiture.
3.4. Termination of Rights as
Shareholder. If any of the Shares are forfeited in accordance
with this Section 3, then after such time the Subscriber (or successor in
interest), shall no longer have any rights as a holder of such Shares, and the
Company shall take such action as is appropriate to cancel such
Shares.
3.5. Share Certificates; Stop
Transfer Order. In the event an adjustment to the Original
Certificate is required pursuant to this Section 3, then the Subscriber shall
return such Original Certificate to the Company or its designated agent as soon
as practicable upon its receipt of notice from the Company advising Subscriber
of such adjustment, following which a new certificate (the “New Certificate”)
shall be issued in such amount representing the adjusted number of Shares held
by the Subscriber. The New Certificate shall be returned to the
Subscriber as soon as practicable.
4. Waiver of Liquidation
Distributions; Redemption Rights. In connection with the
Shares purchased pursuant to this Agreement, the Subscriber hereby waives any
and all right, title, interest or claim of any kind in or to any distributions
by the Company from the Trust Account which will be established for the benefit
of the Company’s public shareholders and into which substantially all of the
proceeds of the IPO will be deposited (the “Trust Account”), in the event of a
liquidation of the Company upon the Company’s failure to timely complete a
Business Combination. For purposes of clarity, in the event the
Subscriber purchases Common Stock in the IPO or in the aftermarket, any
additional Common Stock so purchased shall be eligible to receive any
liquidating distributions by the Company. However, in no event will
the Subscriber have the right to redeem any Shares into funds held in the Trust
Account upon the successful completion of a Business Combination.
5. Restrictions on
Transfer.
5.1. Securities Law
Restrictions. In addition to any restrictions contained in
that certain letter agreement (commonly known as an “Insider Letter”) dated as
of the closing of the IPO by and between Subscriber and the Company. Subscriber
agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or
any part of the Shares unless, prior thereto (a) a registration statement on the
appropriate form under the Securities Act and applicable state securities laws
with respect to the Shares proposed to be transferred shall then be effective or
(b) the Company has received an opinion from counsel reasonably satisfactory to
the Company, that such registration is not required because such transaction is
exempt from registration under the Securities Act and the rules promulgated by
the Securities and Exchange Commission thereunder and with all applicable state
securities laws.
5.2 Restrictive
Legends. All certificates representing the Shares shall have
endorsed thereon legends substantially as follows:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AND MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF
THE LOCKUP.”
5.3. Additional Shares or
Substituted Securities. In the event of the declaration of a
share dividend, the declaration of an extraordinary dividend payable in a form
other than Common Stock, a spin-off, a share split, an adjustment in conversion
ratio, a recapitalization or a similar transaction affecting the Company’s
outstanding Common Stock without receipt of consideration, any new, substituted
or additional securities or other property which are by reason of such
transaction distributed with respect to any Shares subject to this Section 5 or
into which such Shares thereby become convertible shall immediately be subject
to this Section 5 and Section 3.3. Appropriate adjustments to reflect
the distribution of such securities or property shall be made to the number
and/or class of Shares subject to this Section 5 and Section 3.3.
5.4 Registration Rights.
Subscriber acknowledges that the Shares are being purchased pursuant to an
exemption from the registration requirements of the Securities Act and will
become freely tradable only after certain conditions are met or they are
registered pursuant to a Registration Rights Agreement to be entered into with
the Company prior to the closing of the IPO.
6. Other
Agreements.
6.1. Further
Assurances. Subscriber agrees to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
6.2. Notices. All
notices, statements or other documents which are required or contemplated by
this Agreement shall be: (i) in writing and delivered personally or sent by
first class registered or certified mail, overnight courier service or facsimile
or electronic transmission to the address designated in writing, (ii) by
facsimile to the number most recently provided to such party or such other
address or fax number as may be designated in writing by such party and (iii) by
electronic mail, to the electronic mail address most recently provided to such
party or such other electronic mail address as may be designated in writing by
such party. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered personally, on
the business day following receipt of written confirmation, if sent by facsimile
or electronic transmission, one (1) business day after delivery to an overnight
courier service or five (5) days after mailing if sent by mail.
6.3. Entire
Agreement. This Agreement, together with that certain letter
agreement between Subscriber and the Company, substantially in the form filed as
an exhibit to the Registration Statement, embodies the entire agreement and
understanding between the Subscriber and the Company with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
6.4. Modifications and
Amendments. The terms and provisions of this Agreement may be
modified or amended only by written agreement executed by all parties
hereto.
6.5. Waivers and
Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall
constitute a waiver or consent with respect to any other terms or provisions of
this Agreement, whether or not similar. Each such waiver or consent
shall be effective only in the specific instance and for the purpose for which
it was given, and shall not constitute a continuing waiver or
consent.
6.6. Assignment. The
rights and obligations under this Agreement may not be assigned by either party
hereto without the prior written consent of the other party.
6.7. Benefit. All
statements, representations, warranties, covenants and agreements in this
Agreement shall be binding on the parties hereto and shall inure to the benefit
of the respective successors and permitted assigns of each party
hereto. Nothing in this Agreement shall be construed to create any
rights or obligations except among the parties hereto, and no person or entity
shall be regarded as a third-party beneficiary of this Agreement.
6.8 Governing
Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the laws
of New York, without giving effect to the conflict of law principles
thereof.
6.9 Severability. In
the event that any court of competent jurisdiction shall determine that any
provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and
effect. In the event that such court shall deem any such provision,
or portion thereof, wholly unenforceable, the remaining provisions of this
Agreement shall nevertheless remain in full force and effect.
6.10 No Waiver of Rights, Powers
and Remedies. No failure or delay by a party hereto in
exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, shall operate as a waiver of any such right,
power or remedy of such party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto shall not constitute a waiver of the
right of such party to pursue other available remedies. No notice to
or demand on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the party giving such notice or demand to any other or further action in any
circumstances without such notice or demand.
6.11 Survival of Representations
and Warranties. All representations and warranties made by the
parties hereto in this Agreement or in any other agreement, certificate or
instrument provided for or contemplated hereby, shall survive the execution and
delivery hereof and any investigations made by or on behalf of the
parties.
6.12 No Broker or
Finder. Each of the parties hereto represents and warrants to
the other that no broker, finder or other financial consultant has acted on its
behalf in connection with this Agreement or the transactions contemplated hereby
in such a way as to create any liability on the other. Each of the
parties hereto agrees to indemnify and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder, financial
consultant or similar agent claiming to have been employed by or on behalf of
such party and to bear the cost of legal expenses incurred in defending against
any such claim.
6.13 Headings and
Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
6.14 Counterparts. This
Agreement may be executed in one or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or any other form of electronic delivery, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
signature page were an original thereof.
6.15 Construction. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof will arise favoring or disfavoring any party
hereto because of the authorship of any provision of this Agreement. The words
“include,” “includes,” and “including” will be deemed to
be followed by “without
limitation.” Pronouns in masculine, feminine, and neuter genders will be
construed to include any other gender, and words in the singular form will be
construed to include the plural and vice versa, unless the context otherwise
requires. The words “this
Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of
similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The parties hereto intend that each
representation, warranty, and covenant contained herein will have independent
significance. If any party hereto has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party hereto has
not breached will not detract from or mitigate the fact that such party hereto
is in breach of the first representation, warranty, or covenant.
6.16 Mutual
Drafting. This Agreement is the joint product of the
Subscriber and the Company and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of such parties and shall not be
construed for or against any party hereto.
7. Voting and Tender of
Shares. Subscriber agrees to vote the Shares in favor of a Business
Combination that the Company negotiates and submits for approval to the
Company’s shareholders and shall not seek redemption with respect to such
Shares. Additionally, the Subscriber agrees not to tender any Shares in
connection with a tender offer presented to the Company’s shareholders in
connection with a Business Combination negotiated by the Company.
8. Indemnification. Each
party shall indemnify the other against any loss, cost or damages (including
reasonable attorney’s fees and expenses) incurred as a result of such party’s
breach of any representation, warranty, covenant or agreement in this
Agreement.
If the
foregoing accurately sets forth our understanding and agreement, please sign the
enclosed copy of this Agreement and return it to us.
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Very
truly yours,
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
Chief Financial Officer
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Accepted
and agreed this
January
28, 2011
SCG
FINANCIAL HOLDINGS LLC
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇
▇▇▇▇▇
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Title:
Managing Member
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