AMENDED AND RESTATED INITIAL UNIT SUBSCRIPTION AGREEMENT
Exhibit 10.4
AMENDED AND RESTATED INITIAL UNIT SUBSCRIPTION AGREEMENT
This AMENDED AND RESTATED INITIAL UNIT SUBSCRIPTION AGREEMENT (this “Agreement”) is
made as of March 3, 2008, by and between X.X. Childs Acquisition I Corp., a Delaware corporation
(the “Company”), and JWC Acquisition, LLC, a Delaware limited liability company (the
“Purchaser”).
WHEREAS, the Company is proposing to file a registration statement (the “Registration
Statement”) on Form S-1 under the Securities Act of 1933, as amended (the “Securities
Act”) with the Securities and Exchange Commission in connection with a proposed initial public
offering (the “Initial Public Offering”) of 20,000,000 units (“Units”), each
consisting of one share of the common stock of the Company, par value $0.0001 per share
(“Common Stock”), and one warrant to purchase one additional share of Common Stock for
$7.00, subject to the terms and conditions set forth in the Registration Statement;
WHEREAS, in order to capitalize the Company prior to the Initial Public Offering, the Company
issued and sold, and the Purchaser purchased and acquired, certain Initial Units (as defined below)
pursuant to the Initial Unit Subscription Agreement dated as of February 22, 2008 (the “Prior
Agreement”); and
WHEREAS, on the date hereof, the Company effected a 0.8 for 1 stock split (the “Stock
Split”) and the Purchaser and the Company desire to amend and restate the Prior Agreement to
reflect the Stock Split.
NOW, THEREFORE, for and in consideration of the promises and mutual covenants set forth
herein, the parties hereto agree as follows:
1. Purchase and Sale of Units. The Purchaser hereby subscribes for and purchases from
the Company, and the Company hereby issues and sells to the Purchaser, 5,750,000 units (the
“Initial Units”) at a purchase price of $0.0043478 per Initial Unit for an aggregate
purchase price of $25,000 on the terms and conditions set forth herein. Each Initial Unit consists
of one share of Common Stock and one warrant (a “Warrant”) entitling the holder thereof to
purchase one additional share of Common Stock at an exercise price of $7.00 in accordance with the
terms of a Warrant Agreement, which shall be substantially in the form attached hereto as Exhibit A
(the “Warrant Agreement”). The Initial Units, together with the underlying Common Stock
and Warrants, are referred to herein as the “Initial Securities”.
2. Closing of Purchase and Sale. The closing of the purchase and sale of the Initial
Units shall take place at the offices of the Company immediately following the execution of this
Agreement. At the closing, the Company shall deliver to the Purchaser a certificate evidencing the
Initial Units, registered in the Purchaser’s name, upon the payment of the aggregate purchase price
therefor in immediately available funds by delivery of a cashiers check or by wire transfer to an
account designated by the Company.
3. Redemption of Units. If and to the extent that the underwriter for the Initial
Public Offering (the “Underwriter”) does not exercise in full its option to purchase up to
3,000,000 Units to cover over-allotments (as described in the Registration Statement) prior to the
expiration or termination of such option, the Company shall redeem, at cost, up to 750,000 Initial Units from the holders thereof on a pro rata basis only in an amount sufficient to cause the
number of shares of Common Stock underlying the outstanding Initial Units held by the Purchaser and
its permitted transferees to equal 20% of the Company’s then issued and outstanding Common Stock
after giving effect to the Initial Public Offering (without giving effect to any Units purchased by
the Purchaser or any such transferees in the Initial Public Offering) and the exercise, if any, of
the Underwriter’s over-allotment option. The parties shall give effect to this mandatory
redemption of Initial Units within ten business days following the earlier to occur of the
expiration or termination of the Underwriters’ over-allotment option. If the Underwriter exercises
its over-allotment option in full, the Company will have no right or obligation to redeem any of
the Initial Units.
4. Restrictive Legends. All certificates representing the Initial Securities (and any
underlying securities thereof) shall have endorsed thereon the following legends in substantially
the following forms (in addition to any other legend which maybe 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 THE
SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
STATEMENT IS NOT REQUIRED.”
(b) “SOME OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO REDEMPTION
PURSUANT TO SECTION 3 OF THE AMENDED AND RESTATED INITIAL UNIT SUBSCRIPTION AGREEMENT, DATED AS OF
MARCH 3, 2008, BETWEEN THE COMPANY AND JWC ACQUISITION, LLC.”
(c) Any legend required pursuant to the terms of the Warrant Agreement.
(d) Any legend required by state securities or blue sky laws or regulations.
5. Investment Representations. In connection with the purchase of the Initial
Securities, the Purchaser represents to the Company the following:
(a) The Purchaser is familiar with the Company’s business plans and financial condition and
has acquired sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Initial Securities. The Purchaser has been afforded the opportunity to ask
questions of the executive officers and directors of the Company. The Purchaser understands that
its investment in the Initial Securities involves a high degree of risk. The Purchaser has sought
such accounting, legal and tax advice as the Purchaser has considered
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necessary to make an informed investment decision with respect to the Purchaser’s acquisition of the Initial Securities. The
Purchaser has such knowledge and expertise in financial and business matters, knows of the high
degree of risk associated with investments generally and particularly investments in the Initial
Securities of companies in the development stage such as the Company, is capable of evaluating the merits and risks of an investment in the Initial Securities, and
is able to bear the economic risk of an investment in the Initial Securities in the amount
contemplated hereunder. The Purchaser understands that there presently is no public market for the
Initial Securities and none is anticipated to develop in the foreseeable future. The Purchaser can
afford a complete loss of its investment in the Initial Securities. The Purchaser is purchasing
the Initial Securities for investment for the 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 and Purchaser has no present arrangement to sell the Initial Securities to or through any
person or entity. Purchaser understands that the Company is a blank check development stage
company recently formed for the purpose of consummating a business combination (as described in the
Registration Statement) and understands that there is no assurance as to the future performance of
the Company and that the Company may never effectuate a business combination.
(b) The Purchaser understands that the Initial Securities (and any underlying Securities
thereof) have not been registered under the Securities Act or any state securities law by reason of
a specific exemption therefrom, and that the Company is relying on the truth and accuracy of, and
the Purchaser’s compliance with, the representations and warranties and agreements of the Purchaser
set forth herein to determine the availability of such exemptions and the eligibility of the
Purchaser to acquire such Initial Securities, including, but not limited to, the bona fide nature
of the Purchaser’s investment intent as expressed herein.
(c) The Purchaser further acknowledges and understands that the Initial Securities (and any
underlying Securities thereof) must be held indefinitely unless the Initial Securities (and any
underlying Securities thereof) are subsequently registered under the Securities Act or an exemption
from such registration is available. The Purchaser understands that the certificates evidencing
the Initial Securities (and any underlying Securities thereof) will be imprinted with a legend that
prohibits the transfer of the Initial Securities (and any underlying Securities thereof) unless the
Initial Securities (and any underlying Securities thereof) are registered or such registration is
not required in the opinion of counsel for the Company.
(d) The Purchaser represents that the Purchaser is an “accredited investor” as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.
(e) The 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 the Purchaser to authorize the execution, delivery and
performance of this Agreement and all other agreements and instruments delivered by the Purchaser
in connection with the transactions contemplated hereby has been duly and validly taken, and this
Agreement has been duly executed and delivered by the Purchaser. This Agreement constitutes the
valid, binding and enforceable obligation of the Purchaser, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general application now or
hereafter in effect affecting the rights and remedies of
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creditors and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). The
purchase by the Purchaser of the Initial Securities does not conflict with the organizational
documents of the Purchaser or with any material contract by which the Purchaser or its property is bound, or any laws or regulations or decree, ruling or
judgment of any court applicable to the Purchaser or its property.
(f) The Purchaser did not decide to enter into this Agreement as a result of any general
solicitation or general advertising within the meaning of Rule 502(c) of the Securities Act.
(g) 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
Initial Securities or the fairness or suitability of the investment in the Initial Securities, nor
have such authorities passed upon or endorsed the merits of the offering of the Initial Securities.
(h) Purchaser acknowledges that it has had the opportunity to review this Agreement and the
transactions contemplated by this Agreement and the other agreements entered into between the
parties hereto with the Purchaser’s legal counsel and investment and tax advisors. Except for any
statements or representations of the Company made in this Agreement and the other agreements
entered into between the parties hereto, the Purchaser is relying solely on such counsel and
advisors and not on any statements or representations of the Company or any of its representatives
or agents for legal, tax or investment advice with respect to this investment, the transactions
contemplated by this Agreement or the securities laws of any jurisdiction.
6. Company Representations and Warranties. In connection with the issuance and sale
of the Initial Securities, the Company represents to the Purchaser the following:
(a) The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware and 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. 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 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). The sale by the Company of the
Initial 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.
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(b) The Initial Units and the Common Stock and Warrants underlying the Initial Units have been
duly authorized and, when issued, delivered and paid for in accordance with this Agreement, the
Common Stock underlying such Initial Units will be validly issued, fully paid and non-assessable and will be free and clear of all liens and claims. The shares
of Common Stock issuable upon exercise of the Warrants have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of the Warrant Agreement, will be validly
issued, fully paid and non-assessable and will be free and clear of all liens and claims.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of conflicts of law
thereof.
(b) Further Execution. The parties agree to take all such further action 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 Initial Securities that are the subject of this Agreement.
(c) Amendment. This Agreement may not be amended, modified or waived, in whole or in
part, except by an agreement in writing signed by each of the parties hereto.
8. Counterparts. This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original and all such
counterparts shall together constitute but one and the same instrument.
9. Effect of Headings. The Section headings herein are for convenience only and are
not part of this Agreement and shall not affect the interpretation thereof.
10. Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
11. Effect on Prior Agreement. Upon the execution and delivery of this Agreement by
the Company and the Purchaser, the Prior Agreement automatically shall terminate and be of no
further force and effect and shall be amended and restated in its entirety as set forth in this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| COMPANY: X.X. CHILDS ACQUISITION I CORP. |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
| PURCHASER: JWC ACQUISITION, LLC |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
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