0001193125-14-059022.txt : 20140219 0001193125-14-059022.hdr.sgml : 20140219 20140219172859 ACCESSION NUMBER: 0001193125-14-059022 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20140219 DATE AS OF CHANGE: 20140219 GROUP MEMBERS: HEP-INXB LLC GROUP MEMBERS: THOMAS O. HICKS SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Infinity Cross Border Acquisition Corp CENTRAL INDEX KEY: 0001518205 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 000000000 STATE OF INCORPORATION: D8 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-86919 FILM NUMBER: 14626890 BUSINESS ADDRESS: STREET 1: C/O INFINITY-C.S.V.C. MANAGEMENT LTD. STREET 2: 3 AZRIELI CENTER (TRIANGLE TOWER), FL 42 CITY: TEL AVIV STATE: L3 ZIP: 67023 BUSINESS PHONE: 011-972-3-607-5170 MAIL ADDRESS: STREET 1: C/O INFINITY-C.S.V.C. MANAGEMENT LTD. STREET 2: 3 AZRIELI CENTER (TRIANGLE TOWER), FL 42 CITY: TEL AVIV STATE: L3 ZIP: 67023 FORMER COMPANY: FORMER CONFORMED NAME: Infinity China 1 Acquisition Corp DATE OF NAME CHANGE: 20110414 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HH Energy Group, LP CENTRAL INDEX KEY: 0001600330 IRS NUMBER: 371748524 STATE OF INCORPORATION: DE FISCAL YEAR END: 1213 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 100 CRESCENT COURT STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 214.615.2241 MAIL ADDRESS: STREET 1: 100 CRESCENT COURT STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75201 SC 13D 1 d680188dsc13d.htm SCHEDULE 13D Schedule 13D

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.     )*

 

 

INFINITY CROSS BORDER ACQUISITION CORPORATION

(Name of Issuer)

Ordinary Shares, no par value

(Title of Class of Securities)

G4772R101

(CUSIP Number)

Lori K. McCutcheon

Hicks Holdings LLC

100 Crescent Court, Suite 1200

Dallas, Texas 75201

(214) 615-2300

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 7, 2014

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See section 240.13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or other subject to the liabilities of that section of Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. G4772R101  

 

  1   

Names of Reporting Person.

 

HH Energy Group, LP

  2  

Check the Appropriate Box if a Member of a Group

 

(a)  ¨        (b)  ¨

  3  

SEC Use Only

 

  4  

Source of Funds (See Instructions)

 

WC

  5  

Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6  

Citizenship or Place of Organization

 

Delaware

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7    

Sole Voting Power

 

0

     8   

Shared Voting Power (see Item 5 below)

 

575,000

     9   

Sole Dispositive Power

 

0

   10   

Shared Dispositive Power (see Item 5 below)

 

575,000

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

575,000

12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

¨

13  

Percent of Class Represented by Amount in Row (11)

 

8.0%

14  

Type of Reporting Person

 

PN


CUSIP No. G4772R101  

 

  1   

Names of Reporting Person.

 

HEP-INXB LLC

  2  

Check the Appropriate Box if a Member of a Group

 

(a)  ¨        (b)  ¨

  3  

SEC Use Only

 

  4  

Source of Funds (See Instructions)

 

OO

  5  

Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6  

Citizenship or Place of Organization

 

Texas

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7    

Sole Voting Power

 

0

     8   

Shared Voting Power (see Item 5 below)

 

575,000

     9   

Sole Dispositive Power

 

0

   10   

Shared Dispositive Power (see Item 5 below)

 

575,000

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

575,000

12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

¨

13  

Percent of Class Represented by Amount in Row (11)

 

8.0%

14  

Type of Reporting Person

 

OO


CUSIP No. G4772R101  

 

  1   

Names of Reporting Person.

 

Thomas O. Hicks

  2  

Check the Appropriate Box if a Member of a Group (See Instructions)

 

(a)  ¨        (b)  ¨

  3  

SEC Use Only

 

  4  

Source of Funds

 

OO

  5  

Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

 

¨

  6  

Citizenship or Place of Organization

 

United States

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7    

Sole Voting Power

 

0

     8   

Shared Voting Power (see Item 5 below)

 

575,000

     9   

Sole Dispositive Power

 

0

   10   

Shared Dispositive Power (see Item 5 below)

 

575,000

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

575,000

12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

¨

13  

Percent of Class Represented by Amount in Row (11)

 

8.0%

14  

Type of Reporting Person

 

IN


SCHEDULE 13D

This Schedule 13D is filed on behalf of HH Energy Group, LP, a Delaware limited partnership (“HH Energy”), HEP-INXB LLC, a Texas limited liability company (“HEP-INXB”), and Mr. Thomas O. Hicks (the “Principal” and, together with HH Energy and HEP-INXB, the “Reporting Persons”).

 

Item 1. Security and Issuer

Securities acquired: ordinary shares, no par value (“Ordinary Shares”)

Issuer: Infinity Cross Border Acquisition Corporation (the “Issuer”)

c/o Infinity-C.S.V.C. Management Ltd.

3 Azrieli Center (Triangle Tower)

42nd Floor, Tel Aviv, Israel, 67023

 

Item 2. Identity and Background

(a) This statement is filed by:

(i) HH Energy, a Delaware limited partnership, which is the holder of record of approximately 8.0% of the Issuer’s outstanding Ordinary Shares based on the number of Ordinary Shares outstanding (7,187,500) as of January 9, 2014, as reported by the Issuer in the Schedule TO filed by the Issuer with the Securities and Exchange Commission (the “SEC”) on January 10, 2014;

(ii) HEP-INXB, a Texas limited liability company, the general partner of HH Energy; and

(ii) the Principal, a United States citizen, the sole member and manager of HEP-INXB.

All disclosures herein with respect to any Reporting Person are made only by such Reporting Person. Any disclosures herein with respect to persons other than the Reporting Persons are made on information and belief after making inquiry to the appropriate party.

(b) The address of the principal business and principal office of each of the Reporting Persons is 100 Crescent Court, Suite 1200, Dallas, Texas 75201.

(c) HH Energy is a holding company. HEP-INXB is the general partner of HH Energy. The Principal is the sole member and manager of HEP-INXB. The principal occupation of the Principal is investment management.

(d) None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) None of the Reporting Persons has, during the last five years, been a party to civil proceeding of a judicial administrative body of competent jurisdiction and, as a result of such proceeding, was, or is subject to, a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

(f) HH Energy is a Delaware limited partnership. HEP-INXB is a Texas limited liability company. The Principal is a United States citizen.


Item 3. Source and Amount of Funds or Other Consideration.

The aggregate purchase price for the Ordinary Shares currently beneficially owned by the Reporting Persons was $1,200,000. The source of these funds was the working capital of HH Energy.

 

Item 4. Purpose of the Transaction

On January 7, 2014, the Principal joined the board of directors of the Issuer. In connection with the Principal’s appointment, HH Energy purchased an aggregate of 575,000 Ordinary Shares from Infinity I-China Fund (Cayman), L.P., Infinity I-China Fund (Israel), L.P., Infinity I-China Fund (Israel 2), L.P. and Infinity I-China Fund (Israel 3), L.P. (collectively, the “Infinity Funds”) for an aggregate purchase price of $1,200,000 pursuant to the terms of that certain Securities Purchase Agreement entered into by and among HH Energy and the Infinity Funds (the “Founder Share Purchase Agreement”).

Reference is made to that certain Merger and Share Exchange Agreement, dated as of January 8, 2014 (the “Merger Agreement”), by and among the Issuer, Glori Acquisition Corp. (“Infinity Acquisition”), Glori Merger Subsidiary, Inc., a Delaware corporation and wholly owned subsidiary of Infinity Acquisition (“Merger Sub”), Infinity-C.S.V.C. Management Ltd., in its capacity under the Merger Agreement as the INXB Representative, and Glori Energy Inc., a Delaware corporation (“Glori”), pursuant to which: (i) the Issuer will effect a merger in which it will merge with and into Infinity Acquisition, a Delaware corporation and the Issuer’s wholly owned subsidiary, with Infinity Acquisition surviving the merger (the “Redomestication”); and (ii) immediately following the Redomestication, Infinity Acquisition will effect an acquisition of Glori by Merger Sub, Infinity Acquisition’s wholly owned Delaware subsidiary, merging with and into Glori, with Glori surviving the merger (the “Transaction Merger” and, together with the Redomestication, the “Business Combination”). At the time of the Redomestication: (i) assuming none of the 5,750,000 Ordinary Shares sold in the Issuer’s initial public offering (the “Public Shares”) are tendered pursuant to a tender offer being made by the Issuer (the “Share Tender Offer”) to provide its shareholders with the opportunity to redeem their Public Shares, each of the 5,750,000 Public Shares then outstanding will be converted automatically into one substantially equivalent share of Infinity Acquisition’s Common Stock (“Common Stock”); and the 1,437,500 Ordinary Shares held by the Issuer’s sponsors, officers and directors that were issued prior to the Issuer’s initial public offering, including the 575,000 shares beneficially owned by the Reporting Persons (the “Founder Shares”), will be converted automatically into 1,437,500 shares of Common Stock which will not be transferable until one year after the completion of the Business Combination subject to certain exceptions. Pursuant to the terms of the Merger Agreement, in exchange for all of the outstanding shares of Glori common stock and warrants, Infinity Acquisition will issue to the stockholders and warrant holders of Glori 22,953,432 shares of Common Stock on a pro rata basis with 688,803 of such shares to be deposited in escrow to support the parties indemnification obligations under the Merger Agreement.

Prior to entry into the Merger Agreement by the parties thereto, on January 7, 2014, HH Energy entered into a Share Purchase Agreement (the “PIPE Purchase Agreement”) with the Issuer, Infinity Acquisition, the Infinity Funds and the other buyers party thereto pursuant to which HH Energy, the Infinity Funds and the other buyers party thereto (together with HH Energy and the Infinity Funds, the


“Buyers”), collectively (i) agreed to purchase between $8.5 million and $17.0 million of shares of Common Stock, provided that, at a minimum, the Buyers would purchase that number of shares, at a purchase price of $8.00 per share (the “Minimum Commitment”), necessary to ensure that Infinity Acquisition meets the $25.0 million minimum cash requirement set forth in the Merger Agreement, assuming that at least $8.0 million in cash remains in the trust account established in connection with the Issuer’s initial public offering following the consummation of the Share Tender Offer, and (ii) were granted an option to purchase additional shares to increase their total investment to a maximum of $25.0 million of shares of Common Stock (including the Minimum Commitment), such additional investment to be used to provide additional working capital to Infinity Acquisition (the “PIPE Investment”). The purchase price for the shares to be issued in the PIPE Investment is $8.00 per share. The PIPE Investment will be consummated simultaneously with the closing of Business Combination. Infinity Acquisition and HH Energy and the other Buyers will also enter into a registration rights agreement that provides for the registration of the Common Stock purchased in the PIPE Investment. HH Energy’s minimum purchase obligation under the PIPE Purchase Agreement is for 187,500 shares of Common Stock and, unless the Buyers agree otherwise, HH Energy would be required to purchase up to an additional 187,500 shares of Common Stock.

Reference is made to the Issuer’s Schedule TO filed with the Commission on January 10, 2014 for a complete description of the transactions described in this Item 4.

The Ordinary Shares owned by the Reporting Persons (and any shares of Common Stock that may be acquired pursuant to the PIPE Purchase Agreement) have been, or will be, acquired for investment purposes. The Reporting Persons may make further acquisitions of Ordinary Shares or Common Stock from time to time and, subject to certain restrictions, may dispose of any or all of the Ordinary Shares or shares of Common Stock held by the Reporting Persons at any time depending on an ongoing evaluation of the investment in such securities, prevailing market conditions, other investment opportunities and other factors.

Except for the foregoing, the Reporting Person have no plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons may, at any time and from time to time, review or reconsider their position, change their purpose or formulate plans or proposals with respect to the Issuer.

 

Item 5. Interest in Securities of the Issuer

(a)-(b) The aggregate number and percentage of Ordinary Shares beneficially owned by the Reporting Persons (on the basis of a total of 7,187,500 Ordinary Shares outstanding as of January 9, 2014, as reported by the Issuer in the Schedule TO filed by the Issuer with the SEC on January 10, 2014) are as follows:

HH Energy Group, LP

 

a)

    Amount beneficially owned: 575,000    Percentage: 8.0%

b)

    Number of shares to which the Reporting Person has:   
 

i.

  Sole power to vote or to direct the vote:    0
 

ii.

  Shared power to vote or to direct the vote:    575,000
 

iii.

  Sole power to dispose or to direct the disposition of:    0
 

iv.

  Shared power to dispose or to direct the disposition of:    575,000


HEP-INXB LLC

 

a)

    Amount beneficially owned: 575,000   Percentage: 8.0%

b)

    Number of shares to which the Reporting Person has:  
 

i.

  Sole power to vote or to direct the vote:   0
 

ii.

  Shared power to vote or to direct the vote:   575,000
 

iii.

  Sole power to dispose or to direct the disposition of:   0
 

iv.

  Shared power to dispose or to direct the disposition of:   575,000

Thomas O. Hicks

 

a)

    Amount beneficially owned: 575,000   Percentage: 8.0%

b)

    Number of shares to which the Reporting Person has:  
 

i.

  Sole power to vote or to direct the vote:   0
 

ii.

  Shared power to vote or to direct the vote:   575,000
 

iii.

  Sole power to dispose or to direct the disposition of:   0
 

iv.

  Shared power to dispose or to direct the disposition of:   575,000

The Ordinary Shares reported as beneficially owned by each of HEP-INXB and the Principal include the Ordinary Shares reported as beneficially owned by HH Energy. HEP-INXB may, as the general partner of HH Energy, be deemed to own beneficially the securities of which HH Energy possesses beneficial ownership. The Principal may, by reason of his status as the sole member and manager of HEP-INXB, be deemed to own beneficially the securities of which HH Energy possesses beneficial ownership. Each of HEP-INXB and the Principal shares the power to vote and to dispose of the securities beneficially owned by HH Energy. The filing of this statement on Schedule 13D shall not be construed as an admission that the Reporting Persons are for the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, the beneficial owner of any of the Ordinary Shares held by HH Energy, except to the extent of their respective pecuniary interests therein. Pursuant to Rule 13d-4, the Reporting Persons disclaim all such beneficial ownership.

(c) Except as set forth in Item 4 above, none of the Reporting Persons has effected any transactions in Ordinary Shares during the 60 days preceding the date of this report.

(d) Not applicable.

(e) Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Founder Share Purchase Agreement

The description of the Founder Share Purchase Agreement in Item 4 above is incorporated by reference herein and is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached as Exhibit 99.2 hereto and incorporated herein by reference.


PIPE Purchase Agreement

The description of the PIPE Purchase Agreement in Item 4 above is incorporated by reference herein and is qualified in its entirety by reference to the full text of such agreement, a copy of which was filed by the Issuer as Exhibit 4.5 to the Form 6-K filed by the Issuer with the SEC on January 9, 2014 (and is incorporated by reference herein as Exhibit 99.3).

Registration Rights

As set forth in Item 4 above, at the closing of the transactions contemplated by the PIPE Purchase Agreement, HH Energy and the other Buyers will enter into a registration rights agreement with Infinity Acquisition. Pursuant to the terms of the registration rights agreement, Infinity Acquisition will be required to file a registration statement with the SEC with respect to the shares of Common Stock purchased under the PIPE Purchase Agreement within forty-five (45) days after the closing of the PIPE Investment. The Buyers will also have certain demand and “piggyback” registration rights, which will be subject to customary conditions and limitations, including the right of the underwriters of an offering to limit the number of shares offered. The summary of such registration rights agreement contained herein is qualified in its entirety by reference to the full text of such agreement, the form of which was filed by the Issuer as Exhibit 4.6 to the Form 6-K filed by the Issuer with the SEC on January 9, 2014 (and is incorporated by reference herein as Exhibit 99.4). In addition to the aforementioned registration rights, HH Energy (as a permitted transferee of the 575,000 Ordinary Shares it acquired pursuant to the Founder Share Purchase Agreement) is entitled to certain demand and “piggyback” registration rights pursuant to that certain registration rights agreement, dated as of July 19, 2012, by and among the Issuer and the securityholders named therein. The summary of such registration rights agreement contained herein is qualified in its entirety by reference to the full text of such agreement, which was filed by the Issuer as Exhibit 10.6 to the Form 6-K filed by the Issuer with the SEC on July 25, 2012 (and is incorporated by reference herein as Exhibit 99.5).

Insider Letter

The 575,000 Ordinary Shares purchased by HH Energy are subject to transfer restrictions pursuant to lockup provisions in that certain letter agreement, dated as of January 7, 2014 (the “Letter Agreement”), entered into by and among HH Energy, the Principal, Hicks Holdings, LLC, the Infinity Funds and the Issuer. Those lock-up provisions provide that such securities are not transferable or saleable, subject to certain exceptions, until the earlier of (i) one year after the completion of the Business Combination and (ii) the date on which the Issuer consummates a liquidation, merger, share exchange or other similar transaction after the Business Combination that results in all of the Issuer’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property. The Insider Letter also provides that, among other things, Hicks Holdings LLC shall be obligated, along with the Infinity Funds, to jointly and severally indemnify the Issuer, if and to the extent any claims by a vendor for services rendered or products sold to the Issuer, or a prospective target business with which the Issuer has discussed entering into a business combination, reduce the amounts in the Trust Account to below $8.00 per share, subject to certain exceptions, including with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account. The description of the Letter Agreement is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached as Exhibit 99.6 hereto and incorporated herein by reference.


Item 7. Material to be Filed as Exhibits

 

Exhibit 99.1    Joint Filing Agreement by and among the Reporting Persons.
Exhibit 99.2    Securities Purchase Agreement, dated as of January 7, 2014, by and among HH Energy, the Infinity Funds, the Issuer and Infinity-C.S.V.C. Management Ltd.
Exhibit 99.3    Share Purchase Agreement, dated as of January 7, 2014, by and among the Issuer, Infinity Acquisition, HH Energy and the other parties thereto (incorporated by reference to Exhibit 4.5 to the Form 6-K filed by the Issuer with the SEC on January 9, 2014).
Exhibit 99.4    Form of Registration Rights Agreement to be entered into by and among the Issuer, Infinity Acquisition, HH Energy and the other parties thereto (incorporated by reference to Exhibit 4.5 to the Form 6-K filed by the Issuer with the SEC on January 9, 2014).
Exhibit 99.5    Registration Rights Agreement, dated as of July 19, 2012, by and among the Issuer and the securityholders named therein (incorporated by reference to Exhibit 10.6 to the Form 6-K filed by the Issuer with the SEC on July 25, 2012).
Exhibit 99.6    Letter Agreement, dated as of January 7, 2014, by and among the Infinity Funds, HH Energy, the Principal and Hicks Holdings LLC.


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: February 19, 2014  
  HH ENERGY GROUP, LP
  By:   HEP-INXB LLC, its general partner
  By:   /s/ Lori K. McCutcheon
  Name:   Lori K. McCutcheon
  Title:   Executive Vice President
  HEP-INXB LLC
  By:   /s/ Lori K. McCutcheon
  Name:   Lori K. McCutcheon
  Title:   Executive Vice President
  /s/ Thomas O. Hicks
  Thomas O. Hicks
EX-99.1 2 d680188dex991.htm EX-99.1 EX-99.1

Exhibit 99.1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Ordinary Shares, par value $0.01 per share, of Infinity Cross Border Acquisition Corporation, and further agree that this Joint Filing Agreement shall be included as an Exhibit to such joint filings.

The undersigned further agree that each party hereto is responsible for the timely filing of such Statement on Schedule 13D and any amendments thereto, and for the accuracy and completeness of the information concerning such party contained therein; provided, however, that no party is responsible for the accuracy or completeness of the information concerning any other party, unless such party knows or has reason to believe that such information is inaccurate.

This Joint Filing Agreement may be signed in counterparts with the same effect as if the signature on each counterpart were upon the same instrument.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of February 19, 2014 .

 

HH ENERGY GROUP, LP
By:   HEP-INXB LLC, its general partner
By:   /s/ Lori K. McCutcheon
Name:   Lori K. McCutcheon
Title:   Executive Vice President
HEP-INXB LLC
By:   /s/ Lori K. McCutcheon
Name:   Lori K. McCutcheon
Title:   Executive Vice President
/s/ Thomas O. Hicks
Thomas O. Hicks
EX-99.2 3 d680188dex992.htm EX-99.2 EX-99.2

Exhibit 99.2

Execution Version

SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated January 7, 2014, by and among INFINITY I-CHINA FUND (CAYMAN) L.P. (the “Fund”), INFINITY I-CHINA FUND (ISRAEL) L.P. (“I1”), INFINITY I-CHINA FUND (ISRAEL 2) L.P. (“I2”) and INFINITY I-CHINA FUND (ISRAEL 3) L.P. (“I3” and, together with the Fund, I1 and I2, each, a “Seller” and collectively, the “Sellers”), HH Energy Group, LP, a Delaware limited partnership (“Purchaser”), and, solely for purposes of Section 6(a), Infinity Cross Border Acquisition Corporation, a British Virgin Islands business company with limited liability (the “Parent”), Glori Acquisition Corp., a Delaware corporation (the “Company”), and Infinity-C.S.V.C. Management Ltd. (the “INXB Representative”).

RECITALS

A. Sellers are sponsors and shareholders of Parent, which intends to enter into that certain Merger and Share Exchange Agreement (the “Merger Agreement”) by and between, among others, Parent, the Company, Glori Merger Subsidiary, Inc., a Delaware corporation (“Merger Sub”), and Glori Energy Inc., a Delaware corporation (the “Target”), pursuant to which, among other things, (i) Parent will be redomesticated as a Delaware corporation through a merger (the “Redomestication Transaction”) with and into the Company, with the Company as the surviving corporation, and (ii) subsequent to the Redomestication Transaction, Target will become, through a merger with Merger Sub, a wholly-owned subsidiary of the Company (the “Target Merger” and, together with the Redomestication Transaction, the “Transactions”).

B. In connection with but prior to consummation of the Transactions, Sellers desire to sell to Purchaser an aggregate of 575,000 ordinary shares (the “Securities”) of Parent, and Purchaser desires to purchase the Securities from Sellers, upon and subject to the terms of this Agreement. Schedule 1 attached hereto sets forth the number of Securities to be sold by each Seller to Purchaser.

AGREEMENT

NOW, THEREFORE, in consideration of the premises, the respective representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Sellers and Purchaser, intending to be legally bound, hereby agree as follows:

1. Purchase and Sale of Securities. Upon the terms and subject to the conditions set forth in this Agreement, and in reliance upon the representations and warranties herein made by each party to the other, each Seller agrees to sell, and Purchaser agrees to purchase from each Seller, at the Closing (as hereinafter defined) the number of Securities set forth for each Seller on Schedule 1 attached hereto. Sellers will deliver to Purchaser at the Closing a certificate or certificates representing all of the Securities with duly executed stock powers attached to the Securities, along with such other instruments and documents that may be necessary or desirable to effect the transfer of the Securities, including without limitation instruction letters to Parent’s transfer agent.


2. Purchase Price. As the purchase price for the Securities, Purchaser will pay, or cause to be paid, to Sellers at the Closing in immediately available funds the aggregate sum of $1,200,000.00, which amount shall be transferred to a single account for the benefit of Sellers as designated in writing to Purchaser not less than one (1) day prior to the Closing.

3. Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 5, the transfer and sale provided for in this Agreement (the “Closing”) will take place at the offices of Akin, Gump, Strauss, Hauer & Feld, LLP, Dallas, Texas, at 10:00 a.m. Central time on the business day which is three (3) business days prior to the day of execution of the Merger Agreement, or on such other date as may be fixed for the Closing by written agreement between the Sellers and Purchaser (the “Closing Date”).

4. Representations and Warranties.

(a) Representations and Warranties of Sellers. Each Seller hereby represents and warrants to Purchaser as follows:

(i) Each Seller is a Cayman Islands limited partnership, duly organized, validly existing and in good standing under the laws of the Cayman Islands.

(ii) Each Seller has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by such Seller and the consummation by such Seller of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Seller.

(iii) This Agreement has been duly executed and delivered by each Seller and constitutes a valid and binding obligation of such Seller, enforceable in accordance with its terms, except as enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights of creditors or general principles of equity.

(iv) The execution and delivery of this Agreement by each Seller and the consummation by such Seller of the transactions contemplated hereby will not (A) violate any provision of any existing law, statute, rule, regulation or ordinance applicable to such Seller or (B) conflict with, result in any breach of or constitute a default under (1) the Certificate of Incorporation or By-laws or other similar organizational documents of such Seller, (2) any order, writ, judgment, award or decree of any court, governmental authority, bureau or agency to which such Seller is a party or by which such Seller may be bound or (3) any contract or other agreement or undertaking to which such Seller is a party or by which such Seller may be bound.

(v) No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, is required by or with respect to each Seller in connection with the execution and delivery of this Agreement or the consummation by such Seller of the transactions contemplated hereby.

 

2


(vi) Each Seller has, and upon transfer by such Seller of the Securities being transferred by such Seller hereunder Purchaser will have, good and marketable title to the Securities, free and clear of any claims, liens, encumbrances, security interests, restrictions and adverse claims of any kind or nature whatsoever other than the restrictions on resale under the Securities Act of 1933, as amended, (“Securities Act”) and state securities laws and subject to the terms and conditions of the Insider Letter (as defined herein). There are no outstanding subscriptions, options, warrants, rights, contracts, understandings or agreements to purchase or otherwise acquire the Securities.

(vii) Each Seller is party to that certain Registration Rights Agreement, dated as of July 19, 2012, by and among the Sellers, Parent, and the other parties thereto (the “Registration Rights Agreement”). The Registration Rights Agreement is valid and binding on the Sellers in accordance with its terms and is in full force and effect. None of the Sellers or any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, the Registration Rights Agreement. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under the Registration Rights Agreement or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. A complete and correct copy of the Registration Rights Agreement (including all modifications, amendments and supplements thereto and waivers thereunder) has been made available to Purchaser. Each Seller has all requisite power and authority to assign its rights under the Registration Rights Agreement to Purchaser and such assignment will not (A) violate any provision of any existing law, statute, rule, regulation or ordinance applicable to such Seller or (B) conflict with, result in any breach of or constitute a default under (1) the Certificate of Incorporation or By-laws or other organizational documents of such Seller, (2) any order, writ, judgment, award or decree of any court, governmental authority, bureau or agency to which such Seller is a party or by which such Seller may be bound or (3) any contract or other agreement or undertaking to which such Seller is a party or by which such Seller may be bound, including the Registration Rights Agreement. Purchaser is a “Permitted Transferee” (as such term is used in the Registration Rights Agreement) and, following each Seller’s assignment of its registration rights under the Registration Rights Agreement to Purchaser, Purchaser shall be a “Holder” under the Registration Rights Agreement and shall be entitled to all of the rights of a “Holder” under the Registration Rights Agreement, subject to the terms and conditions thereof.

(b) Representations and Warranties of Purchaser. Purchaser represents and warrants to Sellers as follows:

(i) Purchaser is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware.

(ii) Purchaser has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Purchaser and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Purchaser.

 

3


(iii) This Agreement has been duly executed and delivered by Purchaser and constitutes a valid and binding obligation of Purchaser, enforceable in accordance with its terms except as enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights of creditors or general principles of equity.

(iv) The execution and delivery of this Agreement by Purchaser and the consummation by Purchaser of the transactions contemplated hereby will not (A) violate any provision of any existing law, statute, rule, regulation or ordinance applicable to Purchaser or (B) conflict with, result in any breach of or constitute a default under (1) the organizational documents of Purchaser, (2) any order, writ, judgment, award or decree of any court, governmental authority, bureau or agency to which Purchaser is a party or by which it may be bound or (3) any contract or other agreement or undertaking to which Purchaser is a party or by which Purchaser may be bound.

(v) No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, including registration of the sale of the Securities under the Securities Act or any equivalent state or foreign law or regulation, is required by or with respect to Purchaser in connection with the execution and delivery of this Agreement or the consummation by Purchaser of the transactions contemplated hereby.

(vi) Purchaser has made its own independent investigation of Parent and the business, operations and prospects of Parent, and Purchaser is not relying on any representation or warranty of Sellers with respect to Parent or the business, operations or prospects of Parent.

(vii) Purchaser confirms that the Securities to be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. The Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participations to such Person or to any third party, with respect to any of the Securities. The Purchaser has not been formed for the specific purpose of acquiring the Securities.

(viii) The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Purchaser understands that the sale of the Securities hereunder not been registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein.

 

4


5. Closing Conditions.

(a) Conditions to Each Party’s Obligations. The obligation of Purchaser to purchase the Securities at the Closing and the obligation of Sellers to sell the Securities at the Closing are subject to the fulfillment at or prior to the Closing of the following conditions:

(i) No preliminary or permanent injunction or other order shall have been issued by any court of competent jurisdiction or by any governmental or regulatory body, nor shall any statute, rule, regulation or executive order have been promulgated or enacted by any governmental authority which prevents the consummation of the transactions contemplated by this Agreement; and

(ii) No action or proceeding before any court or any governmental or regulatory authority shall have been commenced by any governmental or regulatory body and shall be pending against any of the parties hereto or any of their respective affiliates, associates, officers or directors seeking to prevent or delay the transactions contemplated by this Agreement.

(b) Conditions to Obligation of Purchaser. The obligation of Purchaser to purchase the Securities at the Closing is subject to the fulfillment at or prior to the Closing of the following conditions:

(i) The representations and warranties of each Seller contained in this Agreement shall have been true and complete when made and shall be true and complete at and as of the Closing Date with the same force and effect as though such representations and warranties were made at and as of the Closing Date.

(ii) Sellers shall have performed and complied with all agreements, obligations and conditions required by this Agreement to be performed or complied with by them at or prior to the Closing, including that the Purchaser Designee (as defined below) shall have been appointed and remain as of the Closing Date as a Parent Director (as defined below).

(c) Conditions to Obligation of Sellers. The obligation of Sellers to sell the Securities at the Closing is subject to the fulfillment at or prior to the Closing of the following conditions:

(i) The representations and warranties of Purchaser contained in this Agreement shall have been true and complete when made and shall be true and complete at and as of the Closing Date with the same force and effect as though such representations and warranties were made at and as of the Closing Date.

(ii) Purchaser shall have performed and complied with all agreements, obligations and conditions required by this Agreement to be performed or complied with by it at or prior to the Closing.

(iii) Purchaser shall have entered into a letter agreement with Parent, substantially in the form set forth in Exhibit A (the “Insider Letter”).

 

5


6. Additional Agreements.

(a) Board of Directors of Parent.

(i) Immediately prior to the execution of this Agreement, Parent and the Sellers have taken all actions as may be required (A) to increase the number of directors constituting the Board of Directors of Parent (the “Parent Board”) from three (3) to four (4) and (B) to elect the Purchaser Designee (as defined below) to fill the vacancy created by such increase.

(ii) Prior to the effective date of the Target Merger, each of Parent, the Company and each Seller shall take all necessary or desirable actions to:

A. ensure that the number of directors (each a “Parent Director”) constituting the Parent Board is fixed and remains at all times at four (4) Parent Directors;

B. ensure that, at all times after the execution of this Agreement, one (1) individual designated by Purchaser (the “Purchaser Designee”), who shall initially be Thomas O. Hicks, is elected and continues to serve as a Parent Director on the Parent Board;

C. ensure that, on or prior to the effective date of the Target Merger, the Purchaser Designee is elected as a director on the Board of Directors of the Company (the “Company Board”) and a director on the Board of Directors of Merger Sub (the “Merger Sub Board”); and

D. remove or replace the Purchaser Designee from the Parent Board, the Company Board or the Merger Sub Board upon, and only upon, written request of Purchaser, which request may be made for any reason, with or without cause.

(iii) Pursuant to Section 6.14 of the Merger Agreement, the Company (prior to the effectiveness of the Target Merger) and the INXB Representative (after the effectiveness of the Target Merger) has the right to designate two (2) persons to serve on the Company Board (the “INXB Directors”), each of whom shall be a “Class B Director.” Each of Parent, the Company, the INXB Representative and each Seller covenants and agrees that it will take all necessary or desirable action to ensure that the Purchaser Designee is appointed, and remains, as one of the two INXB Directors.

(b) Expenses.

(i) Each party will bear its own costs and expenses incurred in connection with the preparation, execution and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal counsel and accountants.

 

6


(ii) In the event the Target Merger is not consummated in accordance with the terms of the Merger Agreement, Purchaser shall be responsible for the payment of 50% of all reasonable out-of-pocket fees and expenses incurred by Parent in connection with the Transactions (collectively, “Transaction Expenses”) from and after December 1, 2013 (the date that the Sellers and an affiliate of Purchaser entered into that certain Term Sheet for an Agreement Between Infinity and Hicks) through the date of Purchaser’s payment of its portion of such Transaction Expenses, and the Sellers, collectively, shall be responsible for the remaining 50% of such Transaction Expenses. An estimate of the Transaction Expenses incurred from December 1, 2013 through the date hereof is set forth on Schedule 2 hereto.

(c) Allocation of Termination Fee. In the event Parent becomes obligated to pay a termination fee pursuant to Section 9.4(b) of the Merger Agreement, Purchaser shall be responsible for paying 50% of such fee and the Fund shall be responsible for paying the remaining 50% of such fee, and each of Purchaser and the Fund shall either pay its portion of such fee directly to Target at the time such payment is due under the Merger Agreement or transfer its portion of such fee to Parent so as to allow Parent to pay the entire amount of such fee to Target when due under the Merger Agreement.

7. Miscellaneous.

(a) No Brokers. Each Seller and Purchaser each represent to the other that neither it nor any of its respective affiliates have employed any broker or finder or incurred any liability for any brokerage or finder’s fees or commissions or expenses related thereto in connection with the negotiation, execution or consummation of this Agreement or any of the transactions contemplated hereby and respectively agree to indemnify and hold the other harmless from and against any and all claims, liabilities or obligations with respect to any such fees, commissions or expenses asserted by any person on the basis of any act or statement alleged to have been made by such party or any of its affiliates.

(b) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or between the parties, written or oral, to the extent they relate in any way to the subject matter hereof.

(c) Assignment; Binding Effect; Third Party Beneficiaries. No party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other party. All of the terms, agreements, covenants, representations, warranties and conditions of this Agreement are binding upon and inure to the benefit of and are enforceable by, the parties and their respective successors and permitted assigns. There are no third party beneficiaries having rights under or with respect to this Agreement.

(d) Further Assurances. If any further action is necessary or reasonably desirable to carry out this Agreement’s purposes, each party will take such further action (including executing and delivering any further instruments and documents and providing any reasonably requested information) as the other party reasonably may request.

 

7


(e) Survival of Representations, Warranties and Covenants. Each representation, warranty, covenant and obligation in this Agreement will survive the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, and will not be affected by any investigation by or on behalf of the other party to this Agreement.

(f) Indemnification. Sellers and Purchaser, respectively, will each indemnify and hold harmless the other from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from any breach of any representation or warranty of the indemnifying party contained in this Agreement or any breach by the indemnifying party, or failure by the indemnifying party to fulfill, any covenant or agreement contained herein.

(g) Notices. All notices, requests and other communications provided for or permitted to be given under this Agreement must be in writing and given by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by facsimile transmission, as follows (or to such other address as any party may give in a notice given in accordance with the provisions hereof):

If to the Sellers:

Infinity I-China Fund (Cayman) L.P.

3 Azrieli Center (Triangle Tower)

42nd Floor, Tel Aviv, Israel, 67023

Attention: Mark Chess

Facsimile: 972-6075456

with a copy (which will not constitute notice) to:

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, New York 10017

Attention: Stuart Neuhauser, Esq.

Facsimile: (212) 370-7889

If to Purchaser:

HH Energy Group, LP

100 Crescent Court, Suite 1200

Dallas, Texas 75201

Attention: Lori K. McCutcheon

Facsimile: (214) 615-2242

with a copy (which will not constitute notice) to:

Akin Gump Strauss Hauer & Feld LLP

1700 Pacific Avenue, Suite 4100

Dallas, Texas 75201

Attn: Robert W. Dockery

Facsimile: (214) 969-3434

 

8


All notices, requests or other communications will be effective and deemed given only as follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or registered mail, on the fifth business day after being deposited in the United States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation of receipt of such facsimile transmission, except that if such confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a business day, then such notice, request or communication will not be deemed effective or given until the next succeeding business day. Notices, requests and other communications sent in any other manner, including by electronic mail, will not be effective.

(h) Specific Performance; Remedies. Each party acknowledges and agrees that the other party would be damaged irreparably if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the parties will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and its provisions in addition to any other remedy to which they may be entitled, at law or in equity. Except as expressly provided herein, the rights, obligations and remedies created by this Agreement are cumulative and in addition to any other rights, obligations or remedies otherwise available at law or in equity. Except as expressly provided herein, nothing herein will be considered an election of remedies.

(i) Headings. The article and section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

(j) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law principles.

(k) Amendment. This Agreement may not be amended or modified except by a writing signed by both of the parties.

(l) Extensions; Waivers. Any party may, for itself only, (a) extend the time for the performance of any of the obligations of any other party under this Agreement, (b) waive any inaccuracies in the representations and warranties of any other party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any such extension or waiver will be valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extent to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent such occurrence. Neither the failure nor any delay on the party of any party to exercise any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise of the same or of any other right or remedy.

 

9


(m) Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. This Agreement will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, which delivery may be made by exchange of copies of the signature page by facsimile transmission, “portable document format” (“.pdf”) or other electronic transmission.

[Signature Page Follows]

 

10


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

 

HH ENERGY GROUP, LP
By: HEP-INXB LLC, its general partner
By:   /s/ Lori K. McCutcheon
  Name: Lori K. McCutcheon
  Title: EVP
INFINITY I-CHINA FUND (CAYMAN) L.P.
By:   /s/ Avishai Silvershatz
  Name: Avishai Silvershatz
  Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL) L.P.
By:   /s/ Avishai Silvershatz
  Name: Avishai Silvershatz
  Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL 2) L.P.
By:   /s/ Avishai Silvershatz
  Name: Avishai Silvershatz
  Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL 3) L.P.
By:   /s/ Avishai Silvershatz
  Name: Avishai Silvershatz
  Title: Managing Partner

 

[Signature Page to Securities Purchase Agreement]


INFINITY CROSS BORDER ACQUISITION

CORPORATION (for purposes of Section 6(a))

By:  

/s/ Mark Chess

  Name: Mark Chess
  Title: Executive Vice President
GLORI ACQUISITION CORP. (for purposes of Section 6(a))
By:  

/s/ Mark Chess

  Name: Mark Chess
  Title: President
INFINITY-C.S.V.C. MANAGEMENT LTD. (for purposes of Section 6(a))
By:  

/s/ Amir Gal-Or

  Name: Amir Gal-Or
  Title: Managing Partner

[Signature Page to Securities Purchase Agreement]


SCHEDULE 1

ALLOCATION OF SECURITIES AMONG SELLERS

 

Seller

   Number of Securities to be Sold  

Infinity I-China Fund (Cayman), L.P.

     268,470   

Infinity I-China Fund (Israel), L.P.

     136,965   

Infinity I-China Fund (Israel 2), L.P.

     117,070   

Infinity I-China Fund (Israel 3), L.P.

     52,495   

Total

     575,000   


SCHEDULE 2

ESTIMATE OF PARENT EXPENSES

Approximately $300,000 of accrued professional fees.


EXHIBIT A

INSIDER LETTER

[Attached]

EX-99.6 4 d680188dex996.htm EX-99.6 EX-99.6

Exhibit 99.6

January 7, 2014

Infinity Cross Border Acquisition Corporation

c/o Infinity-C.S.V.C. Management Ltd.

3 Azrieli Center (Triangle Tower)

42nd Floor, Tel Aviv, Israel, 67023

Re: Letter Agreement

Ladies and Gentlemen:

This letter (“Letter Agreement”) is being delivered to you in accordance with the Securities Purchase Agreement (the “Agreement”) to be entered into by and between Infinity I-China Fund (Cayman), L.P., Infinity I-China Fund (Israel), L.P., Infinity I-China Fund (Israel 2), L.P., Infinity I-China Fund (Israel 3), L.P. (collectively, the “Original Sponsors”) and HH Energy Group, LP (the “Additional Sponsor”) relating to the sale by the Original Sponsors to the Additional Sponsor of 575,000 ordinary shares (the “Shares”) of Infinity Cross Border Acquisition Corporation (the “Company”). Certain capitalized terms used herein are defined in paragraph 10 hereof.

In order to induce the Original Sponsors to enter into the Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Additional Sponsor and Thomas O. Hicks (the “Director”), hereby agree with the Company as follows:

1. The Additional Sponsor and the Director hereby agree that if the Company seeks shareholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, the Additional Sponsor and the Director shall vote the Shares and any Ordinary Shares owned and/or acquired by it (or them) in the public market in favor of such proposed Business Combination. The Additional Sponsor and the Director hereby further agree that if the Company seeks to amend its amended and restated memorandum and articles of association, the Additional Sponsor and the Director will have the discretion to vote in any manner they choose.

2. The Additional Sponsor and the Director hereby agree that in the event that the Company fails to consummate a Business Combination within the Applicable Period, the Additional Sponsor and the Director shall take all reasonable steps to cause the Company to: (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but no more than five business days after the expiration of the Applicable Period, redeem the Ordinary Shares sold as part of the units in the Company’s initial public offering (the “Offering”), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, net of taxes payable (less up to $50,000 of net interest to pay dissolution expenses), divided by the number of then outstanding public shares, which redemption will completely extinguish the Public Shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any), subject to applicable law and (iii) cease all operations except for the purposes of any winding up of the Company’s affairs as promptly as reasonably possible following such redemption, subject in the case of (ii) and (iii) above to the Company’s obligations under the laws of the British Virgin Islands to provide for claims of creditors and other requirements of applicable law.

3. Each of the Director, the Additional Sponsor and the Company will not propose any amendment to the Company’s amended and restated memorandum and articles of association that would affect the substance or timing of the Company’s obligation, as described in Regulation 23 of the amended and restated memorandum and articles of association, to redeem the Ordinary Shares held by Public Shareholders. Each of the Director and the Additional Sponsor acknowledges that he, she, or it has no


right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Company with respect to the Shares. The Additional Sponsor and the Director hereby further waive, with respect to any Ordinary Shares held by it or them, as the case may be, any redemption rights any of them may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a shareholder vote to approve such Business Combination or in the context of a tender offer made by the Company to purchase Ordinary Shares (although the Additional Sponsor and the Director shall be entitled to redemption and liquidation rights with respect to any Ordinary Shares (other than the Shares) they hold if the Company fails to consummate a Business Combination within the Applicable Period).

4. In the event of the liquidation of the Trust Account, each of Hicks Holdings, LLC and the Original Sponsors, jointly and severally agree (for the purposes of this paragraph 4, Hicks Holdings, LLC and the Original Sponsors shall be referred to as the “Indemnitors”) to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has discussed entering into a Business Combination (a “Target”); provided, however, that such indemnification of the Company by the Indemnitors shall apply only to the extent necessary to ensure that such claims by a third party for services rendered (other than the Company’s independent public accountants) or products sold to the Company or a Target do not reduce the amount of funds in the Trust Account to below $8.00 per Ordinary Share sold in the Offering (the “Offering Shares”), and provided, further, that only if such third party or Target has not executed an agreement waiving claims against and all rights to seek access to the Trust Account whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by the Indemnitors shall not apply as to any claims under the Company’s obligation to indemnify the underwriters of the Offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). The Indemnitors shall have the right to defend against any such claim with counsel of their choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitors, the Indemnitors notify the Company in writing that they shall undertake such defense.

5. (a) In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the Additional Sponsor and the Director agree, until the earliest of the Company’s Business Combination or liquidation, he, she or it shall present to the Company for its consideration, prior to presentation to any other entity, any business opportunity with a value of $32 million or more (determined according to commercially reasonable standards), subject to any pre-existing fiduciary or contractual obligations he, she or it might have. Nothing contained herein shall override any Director’s fiduciary obligations to any entity with which he, she or it is currently directly or indirectly associated or affiliated or by whom he, she or it is currently employed.

(b) Each of the Additional Sponsor and the Director hereby agrees and acknowledges that: (i) each of the underwriters of the Offering and the Company would be irreparably injured in the event of a breach by such Additional Sponsor of its obligations under paragraph 5(a), (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.

 

2


6. (a) Each of the Director and the Additional Sponsor acknowledges and agrees that until the earliest of: (i) one year after the completion of the Company’s Business Combination or (ii) the date the Company consummates a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property following consummation of the Business Combination (the “Lock-Up Period”), the undersigned shall not, except as described in the Prospectus, (A) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, with respect to the Shares, (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Shares, whether any such transaction is to be settled by delivery of the Ordinary Shares or such other securities, in cash or otherwise, or (C) publicly announce any intention to effect any transaction specified in clause (A) or (B); provided, however, if the last sales price of the Company’s Ordinary Shares reaches or exceeds $9.60 for any 20 trading days within any 30-trading day period during the Lock-Up Period, 50% of the Shares will be released from the lock-up and, if the last sales price of the Company’s Ordinary Shares reaches or exceeds $12.00 for any 20 trading days within any 30-trading day period during the Lock Up Period, the remaining 50% of the Shares shall be released from the lock-up (as the same may be adjusted for share splits, share dividends, reorganizations, recapitalizations and the like). The provisions of this paragraph 6(a) shall apply to all dividends on the Ordinary Shares payable in Ordinary Shares or other non-cash property to the Director and the Additional Sponsor.

(b) Notwithstanding the provisions of paragraph 6(a) herein, each of the Director and the Additional Sponsor may transfer the Shares (i) to the officers or directors of the Company, any affiliates or family members of any of the Company’s officers or directors, any of the Original Sponsors or the Additional Sponsor, or any affiliates of the Original Sponsors or the Additional Sponsor, including any member of management of any of the Original Sponsors or the Additional Sponsor; (ii) by gift to a member of one of the members of any of the Original Sponsors’ or the Additional Sponsor’s immediate family or to a trust, the beneficiary of which is a member of one of the members of the Additional Sponsor’s immediate family, or an affiliate of the Original Sponsors or the Additional Sponsor; (iii) in the case of the Director, by virtue of the laws of descent and distribution upon death of the Director; (iv) in the case of the Director, pursuant to a qualified domestic relations order; or (v) by virtue of the laws of jurisdiction of incorporation of the Additional Sponsor upon dissolution of the Additional Sponsor; provided, however, that these permitted transferees enter into a written agreement with the Company agreeing to be bound by the forfeiture restrictions and transfer restrictions in paragraphs 6(a) and 6(b) herein, as the case may be.

(d) Further, each of the Director and the Additional Sponsor agrees that after the Lock-Up Period has elapsed, the Shares shall only be transferable or saleable pursuant to a sale registered under the Securities Act or pursuant to an available exemption from registration under the Securities Act. The Company, the Director and the Additional Sponsor each acknowledge that pursuant to that certain registration rights agreement entered into among the Company and the Original Sponsors dated July 19, 2012 (the “Registration Rights Agreement”), each of the Director and the Additional Sponsor (each as a permitted assignee of the registration rights granted under the Registration Rights Agreement) may request that a registration statement relating to the Shares be filed with the Commission prior to the end of the Lock-Up Period; provided, however, that such registration statement does not become effective prior to the end of the Lock-Up Period.

 

3


(e) Each of the Director, the Additional Sponsor and the Company understands and agrees that the transfer restrictions set forth in this paragraph 6 shall supersede any and all transfer restrictions relating to: (i) the Shares set forth in that certain Securities Purchase Agreement, effective as of April 6, 2011, by and between the Company and the Original Sponsors, and (ii) the Shares set forth in the Agreement. The Company will direct each of the certificates evidencing the Shares to be legended with the applicable transfer restrictions.

7. The Director’s biographical information furnished to the Company is true and accurate in all material respects and does not omit any material information with respect to his background. The Director’s questionnaire furnished to the Company is true and accurate in all material respects. The Director represents and warrants that: his is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction; he has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and he is not currently a defendant in any such criminal proceeding; and neither the Director nor the Additional Sponsor has ever been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.

8. The Additional Sponsor (or affiliates) and the Director shall not be entitled to receive any compensation or other cash payment prior to, or for services rendered in order to effectuate, the consummation of the Business Combination other than: repayment of loans made to the Company by the Additional Sponsor or certain of the Company’s officers or directors to fund working capital requirements between the Offering and consummation of the Business Combination; reimbursement for any reasonable out-of-pocket expenses related to identifying, investigating and consummating the Business Combination, so long as no proceeds of the Offering held in the Trust Account may be applied to the payment of such expenses prior to the consummation of a Business Combination, except that the Company may, for purposes of funding its working capital requirements (including paying such expenses), receive from the Trust Account all of the interest income generated on the Trust Account to finance transaction costs in connection with a Business Combination, provided, that, if the Company does not consummate a Business Combination, a portion of the working capital held outside the Trust Account may be used by the Company to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment.

9. The Additional Sponsor and the Director have full right and power, without violating any agreement to which he, she or it is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and the Director hereby consents to being named in the Company’s filings with the Commission as a director of the Company.

10. As used herein, (i) “Applicable Period” shall mean 18 months from the closing of the Offering (or 21 months of the closing of the Offering if a definitive agreement is executed within 18 months from the closing of the Offering but a Business Combination has not been consummated within such period); (ii) “Business Combination” shall mean the acquisition, share exchange, share reconstruction and amalgamation or contractual control arrangement with, purchase of all or substantially all of the assets of, or engagement in any other similar business combination with one or more businesses or entities; (iii) “Public Shareholders” shall mean the holders of securities issued in the Offering; and (iv) “Trust Account” shall mean the trust fund into which a substantially all of the net proceeds of the Offering were deposited and that are held by the Escrow Agent, as trustee.

 

4


11. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.

12. No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the Additional Sponsor, the Director, and each of their respective successors, heirs, personal representatives and assigns.

13. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this Letter Agreement shall be resolved through final and binding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators.

14. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, electronic or facsimile transmission.

15. This Letter Agreement shall terminate on the earlier of (i) the expiration of the Lock-up Period or (ii) the liquidation of the Trust Account; provided, however, that paragraph 4 of this Letter Agreement shall survive such liquidation.

[Signature page follows]

 

5


Sincerely,

 

HH ENERGY GROUP, LP

 

By: HEP-INXB LLC

By:  

/s/ Thomas O. Hicks

  Name: Thomas O. Hicks
  Title:
DIRECTOR
By:  

/s/ Thomas O. Hicks

  Thomas O. Hicks
Solely for purposes of Paragraph 4 of this Letter Agreement:
HICKS HOLDINGS, LLC
By:  

/s/ Thomas O. Hicks

Name: Thomas O. Hicks
Title:
INFINITY I-CHINA FUND (CAYMAN), L.P.
By:  

/s/ Amir Gal-Or

Name: Amir Gal-Or
Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL), L.P.
By:  

/s/ Amir Gal-Or

Name: Amir Gal-Or
Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL 2), L.P.
By:  

/s/ Amir Gal-Or

Name: Amir Gal-Or
Title: Managing Partner
INFINITY I-CHINA FUND (ISRAEL 3), L.P.
By:  

/s/ Amir Gal-Or

Name: Amir Gal-Or
Title: Managing Partner

[Letter Agreement Signature Page]


Acknowledged and Agreed:
INFINITY CROSS BORDER ACQUISITION CORPORATION
By:  

/s/ Mark Chess

 

Name: Mark Chess

Title: Executive Vice President

[Letter Agreement Signature Page]