EX-10.9



 





Exhibit 10.9




PRIVATE PLACEMENT PURCHASE AGREEMENT




     THIS PRIVATE PLACEMENT PURCHASE AGREEMENT (this “Agreement”) made as of this 18th day of June
2007, by and between TM ENTERTAINMENT AND MEDIA, INC., a Delaware corporation (the “Company”), and
Theodore S. Green (the “Purchaser”).



     WHEREAS, the Company desires to sell, and the Purchaser desires to acquire, in a private
placement (the “Placement”) an aggregate of 1,850,000 warrants (the “Placement Warrants”), each of
which is exercisable for one share of common stock of the Company, which Placement Warrants will be
substantially identical to the warrants forming part of the units being issued to the public in a
public offering (the “IPO”) pursuant to the terms and conditions set forth in the registration
statement on Form S-1 (as the same may be amended from time to time, the “Registration Statement”)
which was initially filed with the Securities and Exchange Commission (the “SEC”) on June 18, 2007,
except that (x) the Placement Warrants and the shares of common stock underlying the Placement
Warrants will not be registered under the Securities Act of 1933, as amended (the “Securities
Act”), (y) the Placement Warrants will not be subject to redemption and (z) the Placement Warrants
may be exercised on a cashless basis; and



     WHEREAS, the Placement Warrants will be governed by the Warrant Agreement and the Placement
Warrants will be entitled to the benefits of a Registration Rights Agreement, each of which will be
filed as an exhibit to the Registration Statement.



     NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as follows:




	 	1.	 	PURCHASE OF WARRANTS. The Purchaser hereby agrees, directly or through its
nominees, to purchase 1,850,000 Placement Warrants at a purchase price of $1.00 per
Placement Warrant for an aggregate purchase price of $1,850,000 (the “Purchase Price”).
	 
	 	2.	 	TRANSFER. Purchaser agrees that it shall not, until the later of one year
after the effective date of the Registration Statement and 60 days after the date on
which the Company consummates a Business Combination (as defined in the Company’s
Certificate of Incorporation, (i) 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 file (or participate in the filing of) a
registration statement with the SEC in respect of, 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 SEC promulgated thereunder (the “Exchange Act”) with respect
to, any Placement Warrants and the Underlying Shares, or any securities convertible
into or exercisable or exchangeable for shares, or warrants or other rights to purchase
shares or any such securities, or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Placement Warrants or Underlying Shares or any securities convertible into or exercisable or exchangeable for




 









 






	 	 	 	shares,
or warrants or other rights to purchase shares or any such securities, whether any
such transaction is to be settled by delivery of shares or such other securities,
whether any such transaction is to be settled by delivery of shares or such other
securities, in cash or otherwise.






	 	3.	 	CLOSING. The closing of the purchase and sale of the Placement Warrants (the
“Closing”) will take place at such time and place as the parties may agree (the
“Closing Date”), but will in no event be later than the date on which the SEC declares
the Registration Statement effective (the “Effective Date”), provided the underwriting
agreement is signed and executed with the representative of the underwriters. On the
Effective Date, the Purchaser shall pay the Purchase Price by wire transfer of funds to
an account maintained by the Company. Immediately prior to the closing of the IPO, the
Company shall deposit the Purchase Price into the trust account described in the
Registration Statement (the “Trust Account”). The certificates for the Placement
Warrants shall be delivered to the Escrow Agent, to be defined in the Stock Escrow
Agreement to be filed as an exhibit to the Registration Statement, promptly after the
closing of the IPO.






	 	4.	 	REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:






	 	(a)	 	The execution and delivery by the Purchaser of this Agreement
and the fulfillment of and compliance with the respective terms hereof by the
Purchaser do not and shall not as of the Closing conflict with or result in a
breach of the terms, conditions or provisions of any other agreement,
instrument, order, judgment or decree to which Purchaser is subject.
	 
	 	(b)	 	The Purchaser is an “accredited investor” as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.
	 
	 	(c)	 	The Placement Warrants are being acquired for the Purchaser’s
own account, only for investment purposes and not with a view to, or for resale
in connection with, any distribution or public offering thereof within the
meaning of the Securities Act.
	 
	 	(d)	 	The Purchaser has the full right, power and authority to enter
into this Agreement and this Agreement is a valid and legally binding
obligation of the Purchaser enforceable against the Purchaser in accordance
with its terms.
	 
	 	(e)	 	The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the securities or the fairness or
suitability of the investment in the securities nor have such authorities
passed upon or endorsed the merits of the offering of the securities.




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	 	5.	 	WAIVER OF CLAIMS; INDEMNIFICATION. The Purchaser hereby waives any and all
rights to assert any present or future claims, including any right of rescission,
against the Company or Pali Capital, Inc. (“Pali”) with respect to its purchase of the
Placement Warrants, and the Purchaser agrees to indemnify and hold the Company, Pali
and the other underwriters in the IPO harmless from all losses, damages or expenses
that relate to claims or proceedings brought against the Company, Pali or such other
underwriters by the Purchaser of the Placement Warrants or its transferees, heirs,
assigns or any subsequent holders of the Placement Warrants in respect of the
transactions contemplated hereby.
	 
	 	6.	 	VOTING OF SHARES; WAIVER OF CONVERSION RIGHTS; LOCK-UP. In connection with the
vote required to consummate a Business Combination, the Purchaser shall vote any shares
of common stock acquired by the Purchaser in connection with the exercise of any of the
Placement Warrants purchased hereby in accordance with the majority of the shares of
common stock voted by the Company’s public stockholders, and therefore waives any
conversion rights it might have with respect to such shares of common stock. The
Purchaser hereby waives any right to receive distributions with respect to the shares of
common stock acquired by the Purchaser in connection with the exercise of any
of the Placement Warrants purchased hereby upon the liquidation of the Trust Account,
or as part of the Company’s plan of dissolution and distribution in the event the
Company fails to consummate a Business Combination by the Termination Date (as defined
in the Company’s Certificate of Incorporation). In the event that the Company fails to
consummate a Business Combination by the Termination Date, the Purchaser shall vote any
shares of common stock acquired by the Purchaser in connection with the exercise of any
of the Placement Warrants purchased hereby in favor of any plan of dissolution and
liquidation recommended by the Company’s board of directors.
	 
	 	7.	 	RESCISSION RIGHT WAIVER. The Purchaser understands and acknowledges that an
exemption from the registration requirements of the Securities Act requires that there
be no general solicitation of purchasers of the Placement Warrants. In this regard, if
the offering of the Units were deemed to be a general solicitation with respect to the
Placement Warrants, the offer and sale of such Placement Warrants may not be exempt
from registration and, if not, the Purchaser may have a right to rescind its purchase
of the Placement Warrants. In order to facilitate the completion of the offering and in
order to protect the Company, its stockholders and the Trust Account from claims that
may adversely affect the Company or the interests of its stockholders, the Purchaser
hereby agrees to waive, to the maximum extent permitted by applicable law, any claims,
right to sue or rights in law or arbitration, as the case may be, to seek rescission of
his purchase of the Placement Warrants. The Purchaser acknowledges and agrees that
this waiver is being made in order to induce the Company to sell the Placement
Warrants to the Purchaser. The Purchaser agrees that the foregoing 




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	 	 	 	waiver of
rescission rights shall apply to any and all known or unknown actions, causes of
action, suits, claims, or proceedings (collectively, “Claims”) and related losses,
costs, penalties, fees, liabilities and damages, whether compensatory, consequential
or exemplary, and expenses in connection therewith (collectively, “Losses and
Expenses”) including reasonable attorneys’ and expert witness fees and disbursements
and all other expenses reasonably incurred in investigating, preparing or defending
against any Claims, whether pending or threatened, in connection with any present or
future actual or asserted right to rescind the purchase of the Placement Warrants
hereunder or relating to the purchase of the Placement Warrants and the transactions
contemplated hereby.






	 	8.	 	WAIVER OF CLAIMS AGAINST TRUST ACCOUNT. The Purchaser hereby waives any and all
right, title, interest or claim of any kind in or to any distributions from the Trust
Account with respect to any shares of common stock acquired by the Purchaser in
connection with the exercise of the Placement Warrants purchased hereby pursuant to
this Agreement (“Claim”) and hereby waives any Claim the undersigned may have in the
future as a result of, or arising out of, any contracts or agreements with the Company
and will not seek recourse against the Trust Account for any reason whatsoever, other
than with respect to any shares of common stock purchased in the IPO or in the
aftermarket held directly or indirectly by it.
	 
	 	9.	 	REGISTRATION RIGHTS. Purchaser (and its assignees and transferees) shall
be granted certain registration rights pursuant to a Registration Rights Agreement
reasonably acceptable to the Purchaser and the Company. If the Company does not
complete a Business Combination, or if the Company is unable to deliver registered
shares of common stock to the Purchaser pursuant to the Registration Rights Agreement
upon exercise of the Placement Warrants during the exercise period therefor, there will
be no cash settlement of the Placement Warrants and the Placement Warrants will expire
worthless.
	 
	 	10.	 	COUNTERPARTS; FACSIMILE. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument. This Agreement or
any counterpart may be executed via facsimile transmission, and any such executed
facsimile copy shall be treated as an original.
	 
	 	11.	 	GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York. The parties agree that any action
brought by either party to interpret or enforce any provision of this Agreement shall
be brought in, and each party agrees to, and does hereby, submit
to the jurisdiction and venue of, the appropriate state or federal court for the
district encompassing the Company’s principal place of business.





[Signatures on following page]




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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	TM ENTERTAINMENT AND MEDIA, INC.

 	 
	 	By:  	Malcolm Bird	 
	 	 	Name: Malcolm Bird	 
	 	 	Title: Co-CEO	 
	 
	 	 	/s/ Theodore S. Green	 
	 	 	Theodore S. Green	 




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