FIG ACQUISITION CORP. SUBSCRIPTION AGREEMENT
EXHIBIT
10.3
THIS
SUBSCRIPTION AGREEMENT (the “Agreement”) is
made as of the 12th day of December, 2007 by and between FIG ACQUISITION
CORP., a Delaware corporation (the “Company”),
and KBW, INC.
(“Purchaser”).
WHEREAS,
the Company desires to issue, and Purchaser desires to acquire, capital stock
of
the Company as herein described, on the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, IT IS AGREED between the parties as follows:
1. Purchase
and Sale of Units. Purchaser hereby agrees to purchase from the
Company, and the Company hereby agrees to sell to Purchaser, an aggregate of
seven million one hundred eighty seven thousand five hundred (7,187,500) of
the
Company’s units, each unit consisting of one share of the Company’s common
stock, par value $.0001 per share (the “Common Stock”),
and one warrant exercisable to purchase one share of Common Stock at an exercise
price of $7.50 (the “Units”), for an aggregate purchase
price of twenty five thousand dollars ($25,000.00). The closing
hereunder, including payment for and delivery of the Units, shall occur at
the
offices of the Company immediately following the execution of this Agreement,
or
at such other time and place as the parties may mutually agree.
2. Limitations
on Transfer. Purchaser shall not assign, hypothecate, donate,
encumber or otherwise dispose of any interest in the Units except in compliance
with applicable securities laws.
3. Restrictive
Legends. All certificates representing the Units shall have
endorsed thereon legends in substantially the following forms (in addition
to
any other legend which may be required by other agreements between the parties
hereto):
(a) “THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NO TRANSFER, SALE OR OTHER
DISPOSITION OF THESE SECURITIES MAY BE MADE UNLESS A REGISTRATION STATEMENT
WITH
RESPECT TO THESE SECURITIES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED. THESE SECURITIES ARE ALSO SUBJECT
TO FORFEITURE AND ADDITIONAL RESTRICTIONS.”
(b) Any legend
required by appropriate blue sky officials.
4. Investment
Representations. In connection with the purchase of the Stock,
Purchaser represents to the Company the following:
(a) Purchaser
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Stock. Purchaser is purchasing the
Stock
for investment for Purchaser’s own account only and not with a view to, or for
resale in connection with, any “distribution” thereof within the meaning of the
Securities Act of 1933, as amended (the
“Act”).
(b) Purchaser
understands that the Units have not been registered under the Act by reason
of a
specific exemption therefrom, which exemption depends upon, among other things,
the bona fide nature of Purchaser’s investment intent as expressed
herein.
(c) Purchaser
further acknowledges and understands that the Units must be held indefinitely
unless the Units are subsequently registered under the Act or an exemption
from
such registration is available. Purchaser understands that the
certificate evidencing the Units will
be
imprinted with a legend which prohibits the transfer of the Units unless the
Units are registered or such registration is not required in the opinion of
counsel for the Company.
(d) Purchaser
is familiar with the provisions of Rule 144 under the Act (as in effect from
time to time, “Rule 144”), which, in substance, permits
limited public resale of “restricted securities” acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer),
in a
non-public offering subject to the satisfaction of certain
conditions. Unless the Company registers the Units under the Act, the
Units may be resold by Purchaser only in certain limited circumstances subject
to the provisions of Rule 144, which requires, among other things: (i) the
availability of certain public information about the Company and (ii) the resale
occurring following the required holding period under Rule 144 after Purchaser
has purchased, and made full payment of (within the meaning of Rule 144), the
securities to be sold.
(e) Purchaser
further understands that, at the time Purchaser wishes to sell the Units, there
may be no public market upon which to make such a sale, and that, even if such
a
public market then exists, the Company may not be satisfying the current public
information requirements of Rule 144, and that, in such event, Purchaser would
be precluded from selling the Units under Rule 144 even if the minimum holding
period requirement had been satisfied. Notwithstanding Section 4(d)
and this Section 4(e) hereof, Purchaser understands that, under current
interpretations, Purchaser may be considered a promoter of the Company and
understands that it is the position of the Securities and Exchange Commission
(“SEC”) that promoters or affiliates of a blank check
company and their transferees, both before and after a business combination,
would act as an “underwriter” under the Act when reselling the securities of a
blank check company. Accordingly, the SEC believes that those
securities can be resold only through a registered offering and that Rule 144
would not be available for those resale transactions despite technical
compliance with the requirements of Rule 144.
(f) Purchaser
represents that Purchaser is an “accredited investor” as that term is defined in
Rule 501 of Regulation D promulgated by the SEC under the Act.
5. Adjustment
of Units.
(a) If
the underwriters do not exercise the over-allotment option proposed to be
granted to them by the Company with respect to the initial public offering
of
the Company’s Units, the Purchaser and any permitted transferees agree to
forfeit to the Company a number of Units necessary to ensure that the aggregate
amount of Units held by the Purchaser and any permitted transferees does not
exceed 20% of the issued and outstanding Units of the Company upon consummation
of the initial public offering. The Purchaser and any permitted
transferees agree to take any and all action reasonably requested by the Company
necessary to effect any adjustment pursuant to this Section 5(a). The
Company will not make any cash payment to the Purchaser or any permitted
transferees in respect of any such adjustments.
(b) If
the number of Units offered to the public in connection with the initial public
offering is increased or decreased, the Purchaser and any permitted transferees
agree with the Company and the Company hereby agrees with the Purchaser and
any
permitted transferees that the amount of Units (including Units subject to
forfeiture) will be adjusted in the same proportion as the increase or decrease
of the Units offered to the public in order to ensure that the aggregate amount
of Units held by Purchaser and any permitted transferees does not fall below
or
exceed 20% of the issued and outstanding Units of the Company upon consummation
of the initial public offering (including any Units issued pursuant to the
underwriters’ over-allotment
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option). The
Purchaser and any permitted transferees agree to take any and all action
reasonably requested by the Company necessary to effect any adjustment pursuant
to this paragraph 4(b); provided that the Company will not make or receive
any
cash payment to or from the Purchaser or any permitted transferees in respect
of
any such adjustment.
6. Miscellaneous.
(a) Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified,
(ii)
when sent by confirmed facsimile if sent during normal business hours of the
recipient, and if not sent during normal business hours of the recipient, then
on the next business day, (iii) five (5) calendar days after having been sent
by
registered or certified mail, return receipt requested, postage prepaid, or
(iv)
one (1) business day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the other party hereto
at such party’s address hereinafter set forth on the signature page hereof, or
at such other address as such party may designate by ten (10) days advance
written notice to the other party hereto.
(b) Successors
and Assigns. This Agreement shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser and Purchaser’s successors
and assigns.
(c) Attorneys’
Fees; Specific Performance. Purchaser shall reimburse the Company
for all costs incurred by the Company in enforcing the performance by Purchaser
of, or protecting the Company’s rights under, any part of this Agreement,
including reasonable costs of investigation and attorneys’ fees.
(d) Governing
Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts
of
law thereof. 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.
(e) Further
Execution. The parties agree to take all such further action(s)
as may be reasonably necessary to carry out and consummate this Agreement as
soon as practicable, and to take whatever steps may be necessary to obtain
any
governmental approval in connection with, or otherwise qualify the issuance
of
the securities that are the subject of, this Agreement.
(f)
Independent Counsel. Purchaser acknowledges that this
Agreement has been prepared on behalf of the Company by Sidley Austin LLP,
counsel to the Company, and that Sidley Austin LLP does not represent, and
is
not acting on behalf of, Purchaser. Purchaser has been provided with
an opportunity to consult with Purchaser’s own counsel with respect to this
Agreement.
(g) Entire
Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes and merges all prior agreements or understandings, whether written
or
oral. This Agreement may not be amended, modified or revoked, in
whole or in part, except by an agreement in writing signed by each of the
parties hereto.
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(h) Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good
faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its
terms.
(i)
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[Remainder
of This Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the day and year first above written.
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By:
___________________________________
Name:
Xxxxx X. Xxxx
Title:
Chief Executive Officer
KBW,
INC.
By:
____________________________________
Name:
Xxxx X. Xxxxx
Title:
Chief Executive Officer
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