FREEDOM TRAIL CORP. INITIAL SECURITIES SUBSCRIPTION AGREEMENT
Exhibit 10.6
FREEDOM TRAIL CORP.
THIS INITIAL SECURITIES SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of the
14th day of March, 2008, by and between Freedom Trail Corp., a Delaware corporation (the
“Company”), and Liberty Lane Funding LLC, a Delaware limited liability company
(“Purchaser”).
WHEREAS, the Company desires to issue and sell, and Purchaser desires to purchase and acquire,
Securities (as defined herein) on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the promises and mutual covenants set forth
herein, it is agreed between the parties as follows:
1. Purchase of Securities. Purchaser hereby subscribes for and purchases from the Company,
and the Company hereby issues and sells to Purchaser, (i) 3,264,000 shares (the “Shares”)
of the common stock of the Company, par value $0.001 per share (the “Common Stock”), and
(ii) 8,703,000 warrants (the “Warrants” and, together with the Shares, the
“Securities”), for an aggregate purchase price of $25,000. Each whole Warrant shall
entitle the holder thereof to purchase one share of Common Stock at an exercise price of $7.50 per
share for 4,351,500 of the Warrants and an exercise price of $10.00 per share for 4,351,500 of the
Warrants, in accordance with the terms of the Initial Warrant substantially as set forth in the
Form of Warrant Agreement attached hereto as Exhibit A (the “Warrant Agreement”) to be
entered into by and between the Company and American Stock Transfer & Trust Company, as warrant
agent, and shall be subject to the terms of the Warrant Agreement upon execution thereof.
2. Payment of Purchase Price. The purchase price for the Securities shall be tendered in
full on the date hereof in immediately available funds by delivery of a cashiers check or by wire
transfer to an account designated by the Company.
3. Forfeiture of Securities. If the underwriter (the “Underwriter”) in the
Company’s initial public offering (the “IPO”) does not exercise in full its option (the
“Option”) to purchase additional units to be granted by the Company to the Underwriter
pursuant to an underwriting agreement to be executed by and between the Underwriter and the
Company, then Purchaser shall forfeit (i) a number of Shares equal to 426,000 multiplied by a
fraction, the numerator of which is the number of shares of Common Stock with respect to which the
Option remains unexercised as of the expiration date thereof, and the denominator of which is
5,250,000, and (ii) a number of Warrants equal to 1,135,000 multiplied by a fraction, the numerator
of which is the number of shares of Common Stock with respect to which the Option remains
unexercised as of the expiration date thereof, and the denominator of which is 5,250,000, divided
as equally as practicable among Warrants having an exercise price of $7.50 per share and Warrants
having an exercise price of $10.00 per share.
4. Limitations on Transfer. The Securities (and any underlying securities) will be subject
to the applicable restrictions on transfer described in the registration statement for the IPO.
5. Restrictive Legends. All certificates representing the Shares and the Warrants (and any
underlying securities) 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
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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) “SOME OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO FORFEITURE
PURSUANT TO SECTION 3 OF THAT CERTAIN INITIAL SECURITIES SUBSCRIPTION AGREEMENT DATED AS OF MARCH
14, 2008, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY.”
(c) Any legend required pursuant to the terms of the Warrant Agreement.
(d) Any legend required by appropriate blue sky officials.
6. Investment Representations. In connection with the purchase of the Securities, Purchaser
represents to the Company the following:
(a) Purchaser has been furnished with all materials relating to the Company’s business
affairs and financial condition and materials related to the offer and sale of the Securities that
have been requested by Purchaser and has acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. Purchaser has been afforded the
opportunity to ask questions of the executive officers and directors of the Company. Purchaser
understands that its investment in the Securities involves a high degree of risk. Purchaser has
sought such accounting, legal and tax advice as Purchaser has considered necessary to make an
informed investment decision with respect to Purchaser’s acquisition of the Securities. 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 securities of
companies in the development stage such as the Company, is capable of evaluating the merits and
risks of an investment in the Securities, and is able to bear the economic risk of an investment in
the Securities in the amount contemplated hereunder. Purchaser has adequate means of providing for
its current financial needs and contingencies and will have no current or anticipated future needs
for liquidity which would be jeopardized by the investment in the Securities. Purchaser can afford
a complete loss of its investment in 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 check development stage company
recently formed for the purpose of consummating an initial business combination (a “Business
Combination”) 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) Purchaser understands that the Securities (and the underlying securities) have not been
registered under the 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 Purchaser’s compliance with, the
representations and warranties and agreements of Purchaser set forth herein to determine the
availability of such exemptions and the eligibility of Purchaser to acquire such Securities,
including, but not limited to, the bona fide nature of Purchaser’s investment intent as expressed
herein.
(c) Purchaser further acknowledges and understands that the Securities (and the underlying
securities) must be held indefinitely unless the Securities (and the underlying securities) are
subsequently registered under the Act or an exemption from such registration is available.
Purchaser understands that the certificates evidencing the Securities (and the underlying
securities) will be imprinted with a legend which prohibits the transfer of the Securities (and the
underlying securities) unless the Securities (and the underlying securities) are registered or such
registration is not required in the opinion of counsel for the Company.
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(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 underlying securities) under the Act, the Securities (and
the underlying securities) may be resold by Purchaser only in certain limited circumstances subject
to the provisions of Rule 144, which may require, 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 may be precluded from selling the Securities (and
the underlying securities) under Rule 144 even if the minimum holding period requirement had been
satisfied. Notwithstanding Sections 6(d) and (e) hereof, Purchaser understands that the Securities
(and the underlying securities) may not be resold under Rule 144 in certain circumstances until one
year after the consummation of a Business Combination.
(f) Purchaser represents that Purchaser is an “accredited investor” as that term is defined
in Rule 501 of Regulation D promulgated by the U.S. Securities and Exchange Commission 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 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 of Purchaser is as set forth on the signature page hereto.
(h) 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 Act.
(i) 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.
7. 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
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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.
8. Indemnification. Purchaser hereby agrees to indemnify and hold harmless the Company and
the Company’s 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 Purchaser contained herein.
9. 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, shall 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 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 the principles of 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.
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(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. This
Agreement or any counterpart may be executed via facsimile or electronic mail transmission, and any
such executed facsimile or electronic mail copy shall be treated as an original.
(j) Survival. The representations and warranties contained herein will survive the delivery
of, and the payment for, the Securities.
(k) Waiver of Jury Trial. Each party hereto hereby irrevocably and unconditionally waives the
right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of Purchaser in the negotiation, administration,
performance or enforcement hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| COMPANY: | ||||||
| FREEDOM TRAIL CORP. | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
|||||
| Name: Xxxxx X. Xxxxx | ||||||
| Title: Treasurer | ||||||
| Address: | ||||||
| Xxx Xxxxxxx Xxxx | ||||||
| Xxxxxxx, XX 00000 | ||||||
| PURCHASER: | ||||||
| LIBERTY LANE FUNDING LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Co-President | ||||||
| Address: | ||||||
| Xxx Xxxxxxx Xxxx | ||||||
| Xxxxxxx, XX 00000 | ||||||
