Exhibit 10.6
UNIT SUBSCRIPTION AGREEMENT
This UNIT SUBSCRIPTION AGREEMENT (this “Agreement”)
is made as of the 4th day of February 2021, by and between Thunder Bridge Capital Partners III Inc., a Delaware corporation
(the “Company”), having its principal place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxx X000, Xxxxx Xxxxx, Xxxxxxxx
00000, and TBCP III, LLC, a Delaware limited liability company (the “Subscriber”), having its principal
place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxx X000, Xxxxx Xxxxx, Xxxxxxxx 00000.
WHEREAS, in connection with the Company’s
initial public offering of the Company’s units (the “IPO”), the Company desires to sell to the Subscriber
on a private placement basis (the “Offering”) an aggregate of 895,000 units (the “Initial Units”)
of the Company (or up to 1,003,000 Units if the over-allotment option in connection with the IPO is exercised in full, comprised
of the Initial Units and the Additional Units (as defined below)), each Unit comprised of one share of Class A common stock of
the Company, par value $0.0001 per share (“Common Stock”) and one fifth of one warrant, each whole warrant exercisable
to purchase one share of Common Stock (“Warrant”), for a purchase price of $10.00 per Unit. The shares of Common
Stock underlying the Warrants are hereinafter referred to as the “Warrant Shares”. The shares of
Common Stock underlying the Units (excluding the Warrant Shares) are hereinafter referred to as the “Placement Shares.”
The Warrants underlying the Units are hereinafter referred to as the “Placement Warrants.” The Units,
Placement Shares, Placement Warrants and Warrant Shares, collectively, are hereinafter referred to as the “Securities.” Each
whole Placement Warrant is exercisable to purchase one share of Common Stock at an exercise price of $11.50 during the period commencing
on the later of (i) twelve (12) months from the date of the closing of the Company’s IPO and (ii) 30 days following the consummation
of the Company’s initial business combination (the “Business Combination”), as such term is defined in
the registration statement in connection with the IPO, as amended at the time it becomes effective (the “Registration
Statement”), and expiring on the fifth anniversary of the consummation of the Business Combination or earlier upon redemption
or liquidation as described in the Registration Statement; and
WHEREAS, the Subscriber wishes to purchase up
to 1,003,000 Units, and the Company wishes to accept such subscription from Subscriber.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and Subscriber hereby agree as follows:
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1.2.(i) |
Purchase Price. As payment in full for the Initial Units being purchased under this Agreement, the Subscriber shall pay $8,950,000 (the “Purchase Price”) by wire transfer of immediately available funds or by such other method as may be reasonably acceptable to the Company, to the trust account (the “Trust Account”) at a financial institution to be chosen by the Company, maintained by Continental Stock Transfer & Trust Company, acting as trustee (“Continental”), at least one (1) business day prior to the date of effectiveness of the Registration Statement. |
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1.2.(ii) |
In the event that the over-allotment
option is exercised in full or in part, Purchaser shall purchase up to an additional 90,000 Units (the “Additional Units”),
in the same proportion as the amount of the over-allotment option that is exercised, and simultaneously with such purchase of
Additional Units, as payment in full for the Additional Units being purchased hereunder, and at least one (1) business day
prior to the closing of all or any portion of the over-allotment option, Purchaser shall pay $10.00 per Additional Unit, up to
an aggregate amount of $900,000, by wire transfer of immediately available funds or by such other method as may be reasonably
acceptable to the Company, to the Trust Account. |
1.3. Closing. The closing of the purchase and
sale of the Units shall take place simultaneously with the closing of the IPO (the “Initial Closing Date”).
The closing of the purchase and sale of the Additional Units, if applicable, shall take place simultaneously with the closing
of all or any portion of the over-allotment option (such closing date, together with the Initial Closing Date, the “Closing
Dates” and each, a “Closing Date”). The closing of the purchase and sale of each of the Initial Units
and the Additional Units shall take place at the offices of Ellenoff Xxxxxxxx & Schole LLP, 1345 Avenue of the Americas, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, or such other place as may be agreed upon by the parties hereto.
1.4 Termination. This Agreement and each of
the obligations of the undersigned shall be null and void and without effect if the Initial Closing Date does not occur prior to
June 30, 2021.
Subscriber represents and warrants to the Company
that:
2.1. No Government Recommendation or Approval. Subscriber
understands that no federal or state agency has passed upon or made any recommendation or endorsement of the Company or the Offering
of the Securities.
2.2. Accredited Investor. Subscriber represents
that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act
of 1933, as amended (the “Securities Act”), and acknowledges that the sale contemplated hereby is being made
in reliance, among other things, on a private placement exemption to “accredited investors” under the Securities Act
and similar exemptions under state law.
2.3. Intent. Subscriber is purchasing
the Securities solely for investment purposes, for Subscriber’s own account (and/or for the account or benefit of its members
or affiliates, as permitted, pursuant to the terms of an agreement (the “Insider Letter”) to be entered into
with respect to the Securities between, among others, Subscriber and the Company, as described in the Registration Statement),
and not with a view to the distribution thereof and Subscriber has no present arrangement to sell the Securities to or through
any person or entity except as may be permitted under the Insider Letter. Subscriber shall not engage in hedging transactions
with regard to the Securities unless in compliance with the Securities Act.
2.4. Restrictions on Transfer. Subscriber
acknowledges and understands the Units are being offered in a transaction not involving a public offering in the United States
within the meaning of the Securities Act. The Securities have not been registered under the Securities Act and, if in
the future Subscriber decides to offer, resell, pledge or otherwise transfer the Securities, such Securities may be offered, resold,
pledged or otherwise transferred only (A) pursuant to an effective registration statement filed under the Securities Act,
(B) pursuant to an exemption from registration under Rule 144 promulgated under the Securities Act, if available, or (C) pursuant
to any other available exemption from the registration requirements of the Securities Act, and in each case in accordance with
any applicable securities laws of any state or any other jurisdiction. Notwithstanding the foregoing, Subscriber acknowledges and
understands the Securities are subject to transfer restrictions as described in Section 8 hereof. Subscriber agrees that if any
transfer of its Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber
may be required to deliver to the Company an opinion of counsel satisfactory to the Company with respect to such transfer. Absent
registration or another available exemption from registration, Subscriber agrees it will not resell the Securities (unless otherwise
permitted pursuant to the Insider Letter, as described in the Registration Statement). Subscriber further acknowledges
that because the Company is a shell company, Rule 144 may not be available to Subscriber for the resale of the Securities until
the one year anniversary following consummation of the initial Business Combination of the Company, despite technical compliance
with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
2.5. Sophisticated Investor.
(i) Subscriber is sophisticated in financial
matters and is able to evaluate the risks and benefits of the investment in the Securities.
(ii) Subscriber is aware that an investment
in the Securities is highly speculative and subject to substantial risks because, among other things, the Securities are subject
to transfer restrictions and have not been registered under the Securities Act and therefore cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is available. Subscriber is able to bear the economic
risk of its investment in the Securities for an indefinite period of time.
2.6. Independent Investigation. Subscriber,
in making the decision to purchase the Units, 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. 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 Units and has had full access to such other information concerning the Company as Subscriber
has requested. Subscriber confirms that all documents that it has requested have been made available and that Subscriber has been
supplied with all of the additional information concerning this investment which Subscriber has requested.
2.7 Organization and Authority. Subscriber
is duly organized, validly existing and in good standing under the laws of the State of Delaware and it possesses all requisite
power and authority necessary to carry out the transactions contemplated by this Agreement.
2.8. Authority. This Agreement has been validly
authorized, executed and delivered by Subscriber and is a valid and binding agreement enforceable 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.
2.9. No Conflicts. The execution, delivery and
performance of this Agreement and the consummation by Subscriber of the transactions contemplated hereby do not violate, conflict
with or constitute a default under (i) Subscriber’s charter documents, (ii) any agreement or instrument to which
Subscriber is a party or (iii) any law, statute, rule or regulation to which Subscriber is subject, or any agreement, order, judgment
or decree to which Subscriber is subject.
2.10. No Legal Advice from Company. Subscriber
acknowledges 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 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, 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.
2.11. Reliance on Representations and Warranties. Subscriber
understands the Units are being offered and sold to Subscriber in reliance on exemptions from the registration requirements under
the Securities Act, and analogous provisions in the laws and regulations of various states, and that the Company is relying upon
the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of Subscriber set forth
in this Agreement in order to determine the applicability of such provisions.
2.12. No General Solicitation. Subscriber
is not subscribing for the Units as a result of or subsequent to any general solicitation or general advertising, including but
not limited 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 or in a registration statement with respect to the
IPO filed with the Securities and Exchange Commission (“SEC”).
2.13. Legend. Subscriber acknowledges
and agrees the certificates evidencing each of the Securities shall bear a restrictive legend (the “Legend”),
in form and substance substantially as set forth in Section 4 hereof.
The Company represents and warrants to, and
agrees with, 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 200,000,000 shares of Class A Common
Stock, 20,000,000 shares of Class B Common Stock, $0.0001 par value per share (the “Class B Common Stock”),
and 1,000,000 shares of preferred stock, $0.0001 par value per share (“Preferred Stock”). As of the date hereof,
the Company has issued and outstanding 10,350,000 shares of Class B Common Stock (of which up to 1,350,000 shares are subject to
forfeiture as described in the Registration Statement), no shares of Class A Common Stock and no shares of Preferred Stock. All
of the issued shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and non-assessable.
3.2 Title to Securities. Upon issuance
in accordance with, and payment pursuant to, the terms hereof and that certain warrant agreement to be entered into between the
Company and Continental, as warrant agent (the “Warrant Agreement”), as the case may be, each of the Units,
Placement Shares, Placement Warrants and Warrant Shares will be duly and validly issued, fully paid and non-assessable. On the
date of issuance of the Units and Warrant Shares shall have been reserved for issuance. Upon issuance in accordance with, and payment
pursuant to, the terms hereof and the Warrant Agreement, as the case may be, Subscriber will have or receive good title to the
Units, Placement Shares and Placement Warrants, free and clear of all liens, claims and encumbrances of any kind, other than (i)
transfer restrictions hereunder and pursuant to the Insider Letter and (ii) transfer restrictions under federal and state securities
laws.
3.3. Organization and Qualification. The Company
is a corporation duly incorporated, validly existing and 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.
3.4. 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.
3.5. 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 certificate of incorporation or by-laws, (ii) conflict with, or constitute a default
under any agreement or instrument to which the Company is a party or (iii) any law statute, rule or regulation to which the Company
is subject or any agreement, order, judgment or decree to which the Company is subject. 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 Units, Placement Shares, Placement Warrants
or Warrant Shares in accordance with the terms hereof.
4.1 .Legend. The Company will issue the Units,
Placement Shares and Placement Warrants, and when issued, the Warrant Shares, purchased by the Subscriber in the name of the Subscriber.
The Securities will bear the following Legend and appropriate “stop transfer” instructions:
“THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO LOCKUP PURSUANT TO AN INSIDER LETTER BETWEEN, AMONG OTHERS, THUNDER BRDIGE CAPITAL PARTNERS
III INC. AND TBCP III, LLC AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP
PURSUANT TO THE TERMS SET FORTH IN THE INSIDER LETTER.”
“THE SECURITIES REPRESENTED
HEREBY SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT WITH THE CORPORATION.”
4.2. Subscriber’s Compliance. Nothing
in this Section 4 shall affect in any way Subscriber’s obligations and agreements to comply with all applicable securities
laws upon resale of the Securities.
4.3. Company’s Refusal to Register Transfer
of the Securities. The Company shall refuse to register any transfer of the Securities, if in the sole judgment of the
Company such purported transfer would not be made (i) pursuant to an effective registration statement filed under the Securities
Act, or pursuant to an available exemption from the registration requirements of the Securities Act and (ii) in compliance herewith
and with the Insider Letter.
4.4 Registration Rights. The Subscriber
will be entitled to certain registration rights which will be governed by a registration rights agreement (“Registration
Rights Agreement”) to be entered into between, among others, the Subscriber and the Company, on or prior to the effective
date of the Registration Statement.
In connection with the Securities purchased
pursuant to this Agreement, Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions
of the amounts in the Trust Account with respect to the Securities, whether (i) in connection with the exercise of redemption rights
if the Company consummates the Business Combination, (ii) in connection with any tender offer conducted by the Company prior to
a Business Combination, (iii) upon the Company’s redemption of shares of Common Stock sold in the Company’s IPO upon
the Company’s failure to timely complete the Business Combination or (iv) in connection with a stockholder vote to approve
an amendment to the Company’s amended and restated certificate of incorporation (A) to modify the substance or timing of
the Company’s obligation to redeem 100% of the Company’s public shares if the Company does not timely complete the
Business Combination or (B) with respect to any other provision relating to stockholders’ rights or pre-Business Combination
activity. In the event a Subscriber purchases shares of Common Stock in the IPO or in the aftermarket, any additional
shares so purchased shall be eligible to receive the redemption value of such shares of Common Stock upon the same terms offered
to all other purchasers of Common Stock in the IPO in the event the Company fails to consummate the Business Combination.
8.1 The Units and their component parts are
substantially identical to the units to be offered in the IPO except that: (i) the Units and component parts will be subject to
transfer restrictions described in the Insider Letter, (ii) the Placement Warrants will be non-redeemable so long as they are held
by the initial holder thereof (or any of its permitted transferees), and may be exercisable on a “cashless” basis
if held by a Subscriber or its permitted transferees, as further described in the Warrant Agreement and (iii) the Units and component
parts are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely
tradable only after the expiration of the lockup described above in clause (i) and they are registered pursuant to the Registration
Rights Agreement to be signed on or before the date of the Prospectus or an exemption from registration is available.
8.2 Subscriber agrees to vote the Placement
Shares in accordance with the terms of the Insider Letter and as otherwise described in the Registration Statement.
This Agreement shall be governed by and construed
in accordance with the laws of the State of New York for agreements made and to be wholly performed within such state. 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.
10.1. Assignment. Neither this Agreement nor
any rights hereunder may be assigned by any party to any other person other than by a 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 all of the parties hereto.
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.
11.1 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 or other electronic transmission 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. Communications shall be deemed to have been received when delivered personally, on the scheduled
arrival date when sent by next day or 2nd-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. If given by electronic transmission, such notice shall be deemed
to be delivered (a) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (b) if by a posting on an electronic network together with separate notice to the stockholder of such specific
posting, upon the later of (1) such posting and (2) the giving of such separate notice; and (c) if by any other
form of electronic transmission, when directed to the stockholder.
This Agreement may be executed in one or more
counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “pdf” format data file,
such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
13.1. Survival. The representations, warranties,
covenants and agreements of the parties hereto shall survive the Closing Date.
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.
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.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first set forth above.
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SUBSCRIBER: |
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TBCP III, LLC |
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By: |
/s/
Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx |
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Title: Managing Member |
[Unit Subscription
Agreement with Sponsor]
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