SECOND AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
Exhibit
10.11
SECOND
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
SECOND
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT (this “Agreement”)
made
as of this 14th
day of
May, 2007 for the benefit of TransTech Services Partners Inc., a Delaware
corporation (the “Company”),
having its principal place of business at 000 Xxxxx Xxxxxx, Xxxxx 00X, Xxx
Xxxx,
Xxx Xxxx, and by the person or entity listed on the signature page hereto
under
the heading “Subscriber” (the “Subscriber”).
WHEREAS,
the Company and the Subscriber entered into a Subscription Agreement (the
“Original
Subscription Agreement”),
dated
as of September 18, 2006, pursuant to which the Subscribers agreed to purchase
Units (as defined in the Original Subscription Agreement) of the
Company;
WHEREAS,
the Company and the Subscriber entered
into an Amended and Restated Subscription Agreement (the “Amended
and Restated Subscription Agreement”), dated as of February 14, 2007,
pursuant to which the Subscriber agreed to purchase 1,025,000
warrants;
WHEREAS,
the parties intend this Agreement to modify, amend and supersede to Original
Subscription Agreement and the Amended and Restated Subscription
Agreement;
WHEREAS,
the Company desires to sell an aggregate of 1,191,667 warrants (the
“Warrants”)
to
purchase 1,191,667 shares of the Company’s common stock, par value $.0001 per
share (the “Common
Stock”),
for a
purchase price of $1.20 per Warrant (i.e.,
an
aggregate purchase price of $1,430,000); and
WHEREAS,
the offer and sale of the Warrants (the “Offering”)
are
being made in reliance upon the provisions of Regulation D (“Regulation
D”)
promulgated by the Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the “Securities
Act”);
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the Company and the Subscriber do hereby agree as
follows
1. Agreement
to Subscribe
1.1 Purchase
and
Issuance of the Warrants.
The
Subscriber is hereby subscribing for the number of Warrants indicated on the
signature page hereto by the caption, “Number of Warrants Being Subscribed” (the
“Subscriber's
Warrants”),
which
Subscriber’s Warrants will be issued to the Subscriber, or his affiliates or
designees. The aggregate purchase price for the Subscriber’s Warrants (the
“Purchase
Price”)
is
indicated on the signature page hereto by the caption, “Purchase Price”.
1.2 Delivery
of the Purchase Price.
Upon
execution of this Agreement, the Subscriber is hereby bound to fulfill his
or
its obligations hereunder and hereby irrevocably commits to deliver to the
Company on the date of Closing (as hereinafter defined) the Purchase Price
by
bank check, wire transfer or such other form of payment as shall be acceptable
to the Company, in its sole and absolute discretion, at the Closing. Any such
check delivered to the Company shall be made payable to the order of “TransTech
Services Partners Inc.” The Company shall deposit the Purchase Price into the
trust account described in the registration statement (and any amendment
thereto) (the “Registration
Statement”)
filed
with the SEC relating to the Company’s proposed initial public offering of up to
5,175,000 units of Common Stock and the Warrants (the “IPO“).
Subject to Section 5, the certificates for the Warrants comprising the
Subscriber’s Warrants shall be delivered to the Purchaser promptly following the
Closing.
1.3 Closing.
The
closing of the Offering (the “Closing“)
shall
take place at the offices of the Company prior to the effective date of the
IPO.
2. Representations
and Warranties of the Subscriber
The
Subscriber represents and warrants to the Company that:
2.1 No
Government Recommendation or Approval.
The
Subscriber understands that no U.S. federal or state agency or similar agency
of
any other country, has passed upon or made any recommendation or endorsement
of
the Company or the Offering of the Warrants.
2.2 Investment
Representations.
The
Subscriber is purchasing the Warrants for its or his own account without a
view
to any distribution thereof in violation of the Securities Act. The Subscriber
represents that it (he) (i) is an “Accredited Investor” as that term is defined
under Rule 501 under the Securities Act; (ii) has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to such
person or anyone else the Warrants, the shares of Common Stock issuable upon
exercise of the Warrants (the “Warrant
Shares”
and
together with the Warrants, the “Securities”),
or
any part thereof; (iii) has sufficient knowledge and experience in business
matters to evaluate the merits and risks of the investment; (iv) has no need
for
liquidity of its or his investment and (v) would be able to bear the economic
risk of a complete loss of its or his proposed investment hereunder. The
Subscriber acknowledges that none of the Securities have been registered by
the
Company under the Securities Act and agrees that the Securities may only be
transferred if registered under the Securities Act or pursuant to an exemption
from such registration requirements. The Subscriber understands that Rule 144
promulgated under the Securities Act is not presently available with respect
to
the Securities.
The
Subscriber acknowledges, agrees and covenants that it (he) will not engage
in
hedging transactions with regard to the Securities, unless in compliance with
the Securities Act. The Subscriber agrees that if any transfer of the Warrants
or any interest therein is proposed to be made, as a condition precedent to
such
transfer, the Subscriber may be required to deliver to the Company an opinion
of
a counsel satisfactory to the Company.
2.3 Independent
Investigation.
The
Subscriber, in making the decision to purchase the Warrants, has relied upon
an
independent investigation of the Company and has not relied upon any information
or representations made by any third parties or upon any oral or written
representations or assurances from the Company, its officers, directors or
employees or any other representatives or agents of the Company, other than
as
set forth in this Agreement. The Subscriber is familiar with the business,
operations and financial condition of the Company and has had an opportunity
to
ask questions of, and receive answers from, the Company’s officers and directors
concerning the Company and the terms and conditions of the offering of the
Warrants and has had full access to such other information concerning the
Company as the Subscriber has requested.
2
2.4 Authority.
This
Agreement has been validly authorized, executed and delivered by the Subscriber
and is a valid and binding agreement enforceable against the Subscriber in
accordance with its terms, subject to the general principles of equity and
to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally. The execution, delivery and performance of this Agreement by the
Subscriber does not and will not conflict with, violate or cause a breach of
any
agreement, contract or instrument to which the Subscriber is a
party.
2.5 No
Legal Advice from Company.
The
Subscriber acknowledges that he or 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 Subscriber's own
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 Subscriber 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.
2.6 Reliance
on Representations and Warranties.
The
Subscriber understands that the Warrants are being offered and sold to the
Subscriber in reliance on specific provisions of U.S. federal and state
securities laws and that the Company is relying upon the truth and accuracy
of
the representations, warranties, agreements, acknowledgments and understandings
of the Subscriber set forth in this Agreement in order to determine the
applicability of such provisions.
2.7 No
Advertisements.
The
undersigned is not subscribing for the Warrants as a result of or subsequent
to
any advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio,
or
presented at any seminar or meeting.
2.8 Legend.
The
Subscriber acknowledges and agrees that the Warrants, and when issued the
Warrant Shares, shall bear restricted legends (the “Legends”),
in
the form and substance as set forth in Section 4 hereof, prohibiting the offer,
sale, pledge or transfer of the securities, except (i) pursuant to an effective
registration statement filed under the Securities Act, (ii) pursuant to an
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (iii) pursuant to any other exemption from the registration
requirements of the Securities Act.
3. Representations
and Warranties of the Company
The
Company represents and warrants to the Subscriber that:
3.1 Valid
Issuance of Capital Stock.
The
total number of shares of all classes of capital stock which the Company has
authority to issue is 20,918,920 shares of Common Stock and 1,000,000 shares
of
preferred stock. As of the date hereof, the Company has 1,125,000 shares of
Common Stock after giving effect to the Company’s 3 for 4 reverse stock split
and its 0.972973 for 1 reverse stock split and no shares of preferred stock
issued and outstanding. All of the issued shares of capital stock of the Company
have been duly authorized, validly issued, and are fully paid and
non-assessable.
3
3.2 Organization
and Qualification.
The
Company is a corporation duly incorporated and existing in good standing under
the laws of the state of Delaware and has the requisite corporate power to
own
its properties and assets and to carry on its business as now being
conducted.
3.3 Authorization;
Enforcement.
(i) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Securities in
accordance with the terms hereof, (ii) the execution, delivery and performance
of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required, and (iii) this Agreement constitutes valid and
binding obligations of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization,
or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by equitable principles of general application and except
as enforcement of rights to indemnity and contribution may be limited by federal
and state securities laws or principles of public policy.
3.4 No
Conflicts.
The
execution, delivery and performance of this Agreement and the consummation
by
the Company of the transactions contemplated hereby do not (i) result in a
violation of the Company's Third Amended and Restated Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default under
any agreement, indenture or instrument to which the Company is a party. Other
than any SEC or state securities filings which may be required to be made by
the
Company subsequent to the Closing, and any registration statement which may
be
filed pursuant thereto, the Company is not required under federal, state or
local law, rule or regulation to obtain any consent, authorization or order
of,
or make any filing or registration with, any court or governmental agency or
self-regulatory entity in order for it to perform any of its obligations under
this Agreement or issue the Securities in accordance with the terms hereof.
4. Legends;
Denominations
4.1 Legends.
The
Company will issue the Warrants, and when issued the Warrant Shares, purchased
by the Subscriber in the name of the Subscriber and in such denominations to
be
specified by the Subscriber prior to the Closing. The Securities will bear
the
following Legends and appropriate "stop transfer" instructions:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (C) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
4
THESE
SECURITIES ARE SUBJECT TO A LOCK UP AGREEMENT, WHICH IS FILED WITH THE COMPANY’S
CORPORATE BOOKS AND RECORDS.
4.2 Subscriber's
Compliance.
Nothing
in this Section 4 shall affect in any way the Subscriber's obligations and
agreement to comply with all applicable securities laws upon resale of the
Securities.
4.3 Company’s
Refusal to Register Transfer of Securities.
The
Company shall refuse to register any transfer of the Securities, not made in
accordance with (i) pursuant to an effective registration statement filed under
the Securities Act, or (ii) pursuant to an available exemption from the
registration requirements of the Securities Act.
5. Lock
up.
The
Subscriber shall, as specified in a Letter Agreement which the Company, Xxxxx
and Company, LLC and Maxim Group LLC will enter into with the Subscriber, lock
up the Subscriber’s Warrants for a period commencing on the date of the Letter
Agreement and ending on the earlier of (i) the consummation of a Business
Combination or (ii) the Company’s dissolution and liquidation. As used herein, a
“Business
Combination”
shall
mean any acquisition by merger, capital stock exchange, asset acquisition,
stock
purchase or other similar business combination consummated by the Company with
one or more small- to mid-market U.S. and/or European based operating companies
engaged in the delivery of Information Technology and Information Technology
Enabled Services (ITES), Business Process Outsourcing (BPO) and/or Knowledge
Process Outsourcing (KPO), whose operations are particularly suitable for
operational and productivity improvements, which would include leveraging
delivery centers located in offshore countries such as India (as described
more
fully in the Registration Statement).
6. Waiver
of Liquidation Distributions.
In
connection with the Subscriber’s Warrants purchased pursuant to this Agreement,
the Subscriber hereby waives any and all right, title, interest or claim of
any
kind in or to any liquidating distributions by the Company in the event of
a
liquidation of the Company upon the Company's failure to timely complete a
Business Combination. For purposes of clarity, in the event the Subscriber
purchases shares of Common Stock in the IPO or in the aftermarket such shares
shall be eligible to receive any liquidating distributions by the Company.
The
Subscriber shall have no conversion rights (as described in the Registration
Statement) in connection with a Business Combination.
5
7. Rescission
Right Waiver and Indemnification
7.1 The
Subscriber 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 Warrants. In this regard, if the offering
of
the units in the Company’s initial public offering were deemed to be a general
solicitation with respect to the Subscriber’s Warrants, the offer and sale of
such Warrants may not be exempt from registration and, if not, the Subscriber
may have a right to rescind its purchases of the Subscriber’s Warrants. In order
to facilitate the completion of the placement contemplated hereby and in order
to protect the Company, its stockholders and the trust account described in
the
Registration Statement from claims that may adversely affect the Company or
the
interests of its stockholders, the Subscriber hereby agrees to waive, to the
maximum extent permitted by applicable law, any claims, right to xxx or rights
in law or arbitration, as the case may be, to seek rescission of its purchase
of
the Warrants. The Subscriber acknowledges and agrees that this waiver is being
made in order to induce the Company to sell the Warrants to the Subscriber.
The
Subscriber agrees that the foregoing 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,
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
Warrants hereunder or relating to the purchase of the Warrants and the
transactions contemplated hereby.
7.2 The
Subscriber agrees not to seek recourse against the trust account described
in
the Registration Statement for any reason whatsoever in connection with its
purchase of the Warrants or any Claim that may arise now or in the
future.
7.3 The
Subscriber acknowledges and agrees that the stockholders of the Company are
and
shall be third-party beneficiaries of the foregoing provisions of this
Agreement.
7.4 The
Subscriber agrees that to the extent any waiver of rights under this Section
7
is ineffective as a matter of law, the Subscriber has offered such waiver for
the benefit of the Company as an equitable right that shall survive any
statutory disqualification or bar that applies to a legal right. The Subscriber
acknowledges the receipt and sufficiency of consideration received from the
Company hereunder in this regard.
8. Registration
Rights.
The
Subscriber shall have registration rights with respect to the Securities
pursuant to the terms of a Registration Rights Agreement to be entered into
among the Company and certain of its security holders (including the
Subscriber).
6
9. Governing
Law; Jurisdiction; Waiver of Jury Trial
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed wholly within
said State, without giving effect to the conflict of laws principles thereof.
The Subscriber irrevocably submits to the exclusive jurisdiction of the courts
of the State of New York located in New York County and the United District
Court for the Southern District of New York. The parties hereto hereby waive
any
right to a jury trial in connection with any litigation pursuant to this
Agreement and the transactions contemplated hereby.
10. Assignment;
Entire Agreement; Amendment
10.1 Assignment.
Neither
this Agreement nor any rights hereunder may be assigned by any party to any
other person other than by the Subscriber to a person agreeing to be bound
by
the terms hereof.
10.2 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among
them.
10.3 Amendment.
Except
as expressly provided in this Agreement, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge, or termination is sought.
10.4 Binding
Upon Successors.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and permitted
assigns.
11. Notices;
Indemnity
11.1 Notices.
Unless
otherwise provided herein, any notice or other communication to a party
hereunder shall be sufficiently given if in writing and personally delivered
or
sent by facsimile with copy sent in another manner herein provided or sent
by
courier (which for all purposes of this Agreement shall include Federal Express
or other recognized overnight courier) or mailed to said party by certified
mail, return receipt requested, at its address provided for herein or such
other
address as either may designate for itself in such notice to the other and
communications shall be deemed to have been received when delivered personally,
on the scheduled arrival date when sent by next day or 2-day courier service,
or
if sent by facsimile upon receipt of confirmation of transmittal or, if sent
by
mail, then three days after deposit in the mail.
11.2 Indemnification.
Each
party shall indemnify the other against any loss, cost or damages (including
reasonable attorney's fees and expenses) incurred as a result of such party's
breach of any representation, warranty, covenant or agreement in this
Agreement.
7
12. Counterparts
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the parties actually executing such counterparts, and all
of
which together shall constitute one instrument.
13. Survival;
Severability
13.1 Survival.
The
representations, warranties, covenants and agreements of the parties hereto
shall survive the Closing.
13.2 Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that
no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
14. Titles
and Subtitles
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
Name
of
the Subscriber: TSP Ltd.
Number
of
Warrants Being Subscribed: 1,191,667
Aggregate
Purchase Price: U.S. $1,430,000
Date
of
Subscription: _______________, 2007
Place
of
Residency and/or Principal Place of Business:
c/o
Canon’s Court
00
Xxxxxxxx Xxxxxx
Xxxxxxxx
XX00 Xxxxxxx
Telephone:_________________________
Fax:_______________________________
8
This
subscription is accepted by the Company on the 14th
day of
February, 2007.
|
|
||
| TRANSTECH SERVICES PARTNERS INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive Officer
|
||
|
SUBSCRIBER:
TSP Ltd.
|
||
| |
|
|
| By: | /s/ XX Xxxxx | |
|
Name: XX Xxxxx |
||
|
Title:
Vice President and Director
|
||
9
