EXHIBIT 10.1
WESTERN UNITED FINANCIAL CORPORATION
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of the 26th
day of October, 2006, by and between Western United Financial Corporation, a
Delaware corporation (the "Company"), and Western United Funding, LLC, a
California limited liability company ("Purchaser").
WHEREAS, the Company desires to commit to issue and sell, and Purchaser
desires to commit to purchase and acquire, Units and Common Stock (each as
defined herein) on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. COMMITMENT TO PURCHASE UNITS. Subject to and immediately prior to the
consummation of the Company's initial public offering (the "IPO"), Purchaser
hereby agrees to subscribe for and purchase from the Company, and the Company
hereby agrees to issue and sell to Purchaser, 62,500 units (the "Units") at a
purchase price of $8.00 per Unit for an aggregate purchase price of $500,000.
Each Unit consists of one share of the common stock of the Company, par value
$0.01 per share (the "Common Stock"), and one warrant exercisable for one share
of Common Stock. Each warrant shall entitle the holder thereof to purchase one
share of Common Stock at an exercise price of $6.00, in accordance with the
terms of the Warrant as set forth in the Warrant Agreement to be entered into by
and between the Company and a warrant agent to be determined by the Company. The
Warrant Agreement shall be substantially in the form attached hereto as Exhibit
A (the "Warrant Agreement"). The closing of the purchase and sale of the Units
hereunder, including payment for and delivery of the Units, shall occur at the
offices of the Company immediately prior and subject to consummation of the IPO.
2. COMMITMENT TO PURCHASE COMMON STOCK. Pursuant to a letter agreement
to be entered into between Purchaser and Sandler X'Xxxxx & Partners, L.P., which
shall be substantially in the form attached hereto as Exhibit B, Purchaser has
committed that after the consummation of the IPO and during the first forty (40)
trading days (the "Warrant Support Period") beginning on the later of the date
separate trading of the Company's warrants has commenced and sixty (60) calendar
days after the end of the "restricted period" under Regulation M, it will place
an irrevocable order with an independent third-party broker-dealer to purchase,
to the extent available, up to $1,000,000 of the Company's warrants in the
public marketplace if the public marketplace price is $0.70 or less per warrant.
Purchaser has agreed to purchase such warrants pursuant to an agreement in
accordance with the guidelines specified by Rule 10b-18 under the Securities
Exchange Act of 1934 through an independent broker-dealer registered under
Section 15 of the Exchange Act, which is not affiliated with the Company nor
part of the underwriting or selling group in the IPO. Purchaser hereby agrees to
subscribe for and purchase from the Company, and the Company hereby agrees to
issue and sell to Purchaser a number of shares of Common Stock, at a purchase
price of $8.00 per share, such that the aggregate purchase price of such shares
of Common Stock shall be equal to $1,000,000 less the amount expended by
Purchaser to purchase the Company's warrants in the public marketplace during
the Warrant Support Period. The closing of the purchase and sale of the Common
Stock hereunder, including payment for and delivery of the Common Stock, shall
occur at the offices of the Company on the third business day after the
expiration of the Warrant Support Period.
3. PAYMENT OF PURCHASE PRICE. The purchase price for the Units and the
Common Stock (collectively, the "Securities") shall be tendered in full at the
applicable closing by one or a combination of the following means:
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(a) wiring of immediately available United States funds to an
account for the benefit of the Company, pursuant to wire instructions provided
by the Company in advance; or
(b) by delivery of a cashiers check to the Company of
immediately available United States funds.
4. ACCEPTANCE OR REJECTION OF AGREEMENT. The Company has the right to
reject this Agreement and any subscription for the Securities represented hereby
in whole or in part, for any reason and at any time prior to a closing,
notwithstanding receipt by Purchaser or prior notice of acceptance of such
subscription. The Securities subscribed for herein will not be deemed issued to
or owned by Purchaser until a copy of this Agreement has been executed by the
Company and Purchaser and a closing with respect to such Securities has
occurred. In the event that a closing does not take place for any reason with
respect to some or all of the Securities, all cash proceeds delivered by
Purchaser in accordance herewith with respect to such Securities shall be
returned to Purchaser as soon as practicable, without interest, offset or
deduction.
5. LIMITATIONS ON TRANSFER. Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Securities (and the
underlying securities) during the "Escrow Share Period" (as defined in a
securities escrow agreement substantially in the form attached hereto as Exhibit
C (the "Securities Escrow Agreement"), dated on or about the effective date of
the IPO to be entered into by and between the Company and an escrow agent to be
determined by the Company), except (i) as otherwise permitted by the Securities
Escrow Agreement, (ii) in compliance with applicable securities laws and (iii)
in compliance with the Warrant Agreement.
6. RESTRICTIVE LEGENDS. All certificates representing the Securities
(and any underlying securities thereof) 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 REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
(b) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
ASSIGNED, HYPOTHECATED, DONATED, ENCUMBERED, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT IN ACCORDANCE WITH THAT CERTAIN SECURITIES ESCROW AGREEMENT
DATED ____________, 2006, AND THAT CERTAIN WARRANT AGREEMENT DATED AS OF
_____________, 2006, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES
OF THE COMPANY."
(c) Any legend required by appropriate blue sky officials.
7. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Securities, 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 Securities.
Purchaser is purchasing the Securities 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"). Purchaser understands that the Company is a blank
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check development stage company recently formed for the purpose of consummating
an initial business combination (an "Initial Acquisition") and understands that
there is no assurance as to the future performance of the Company and that the
Company may never effectuate an Initial Acquisition.
(b) Purchaser understands that the Securities (and the
securities underlying 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
Securities (and the securities underlying the Units) must be held indefinitely
unless the Securities (and the securities underlying the Units) are subsequently
registered under the Act or an exemption from such registration is available.
Purchaser understands that the certificates evidencing the Securities (and the
securities underlying the Units) will be imprinted with a legend which prohibits
the transfer of the Securities (and the securities underlying the Units) unless
the Securities (and the securities underlying 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,
permit 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 Securities (and the securities underlying the Units)
under the Act, the Securities (and the securities underlying 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 Securities 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 Securities
(and the securities underlying the Units) under Rule 144 even if the minimum
holding period requirement had been satisfied. Notwithstanding Sections 7(d) and
(e) hereof, Purchaser understands that he may be considered a promoter of the
Company and understands that it is the position of the Securities and Exchange
Commission (the "SEC") that promoters or affiliates of a blank check company and
their transferees, both before and after a an Initial Acquisition, 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.
(g) Purchaser has all necessary limited liability company power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All limited liability company action necessary to be taken
by Purchaser to authorize the execution, delivery and performance of this
Agreement and all other agreements and instruments delivered by Purchaser in
connection with the transactions contemplated hereby has been duly and validly
taken, and this Agreement has been duly executed and delivered by Purchaser.
Subject to the terms and conditions of this Agreement, this Agreement
constitutes the valid, binding and enforceable obligation of Purchaser,
enforceable in accordance with its terms, except as enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws of general application now or hereafter in
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effect affecting the rights and remedies of creditors and by general principles
of equity (regardless of whether enforcement is sought in a proceeding at law or
in equity); and (ii) the applicability of the federal and state securities laws
and public policy as to the enforceability of the indemnification provisions of
this Agreement. The purchase by Purchaser of the Securities does not conflict
with the organizational documents of Purchaser or with any material contract by
which Purchaser or its property is bound, or any laws or regulations or decree,
ruling or judgment of any court applicable to Purchaser or its property. The
principal place of business and executive offices of Purchaser are as set forth
on the signature page hereto.
8. COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to Purchaser that the Company has all necessary corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All corporate action necessary to be taken by the Company
to authorize the execution, delivery and performance of this Agreement and all
other agreements and instruments delivered by the Company in connection with the
transactions contemplated hereby has been duly and validly taken and this
Agreement has been duly executed and delivered by the Company. Subject to the
terms and conditions of this Agreement, this Agreement constitutes the valid,
binding and enforceable obligation of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar laws of general application now or hereafter in effect affecting the
rights and remedies of creditors and by general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity); and (ii)
the applicability of the federal and state securities laws and public policy as
to the enforceability of the indemnification provisions of this Agreement. The
sale by the Company of the Securities does not conflict with the certificate of
incorporation or by-laws of the Company or any material contract by which the
Company or its property is bound, or any federal or state laws or regulations or
decree, ruling or judgment of any United States or state court applicable to the
Company or its property.
9. INDEMNIFICATION. Purchaser hereby agrees to indemnify and hold
harmless the Company, its respective officers, directors, stockholders,
employees, agents, and attorneys against any and all losses, claims, demands,
liabilities, and expenses (including reasonable legal or other expenses incurred
by each such person in connection with defending or investigating any such
claims or liabilities, whether or not resulting in any liability to such person
or whether incurred by the indemnified party in any action or proceeding between
the indemnitor and indemnified party or between the indemnified party and any
third party) to which any such indemnified party may become subject, insofar as
such losses, claims, demands, liabilities and expenses (a) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
made by Purchaser and contained herein, or (b) arise out of or are based upon
any breach by Purchaser of any representation, warranty, or agreement made by
the Purchaser contained herein.
10. 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 during normal business
hours of the recipient, then on the next business day, (iii) five calendar days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one 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 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,
Purchaser's successors, and assigns.
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(c) ATTORNEYS' FEES; SPECIFIC PERFORMANCE. Purchaser shall
reimburse the Company for all costs incurred by the Company in enforcing the
performance of, or protecting its 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 Delaware 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 reasonably be 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 Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel to the Company and that Skadden, Arps, Slate,
Xxxxxxx & Xxxx 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.
(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.
(j) SURVIVAL. The representations and warranties contained
herein will survive the delivery of, and the payment for, the Securities.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
COMPANY:
WESTERN UNITED FINANCIAL CORPORATION
By: /s/ V. Xxxxxxx Xxxxxxx
-------------------------------
Name: V. Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
Address:
c/o Western United Management, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
PURCHASER:
WESTERN UNITED FUNDING, LLC
By: /s/ V. Xxxxxxx Xxxxxxx
-------------------------------
Name: V. Xxxxxxx Xxxxxxx
Title: Manager
Address:
c/o Western United Management, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
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