UNIT SUBSCRIPTION AGREEMENT
Exhibit
10.1
This
UNIT
SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of January 18, 2008,
by and between Open Acquisition Corp., a Delaware corporation (the
“Company”), and Open Acq 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 12,500,000 units (“Units”), each consisting of one
share of 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 $7.50, subject to the terms and conditions set forth in the Registration
Statement; and
WHEREAS,
in order to capitalize the Company prior to the Initial Public Offering, the
Company desires to issue and sell, and the Purchaser desires to purchase and
acquire, certain Founder Units (as defined below) on the terms and conditions
hereinafter set forth.
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, 3,593,750 units (the “Founder Units”) at a purchase price of
$0.006957 per Founder Unit for an aggregate purchase price of
$25,000. Each Founder Unit consists of one share of Common Stock and
one warrant (a “Warrant”) to purchase one additional share of Common
Stock for $7.50 in accordance with the terms of the Warrant Agreement to be
entered into by and between the Company and Continental Stock Transfer &
Trust Company (or such other warrant agent as selected by the Company), as
warrant agent, which Warrant Agreement shall contain such provisions with regard
to the Warrants as are contained in the Registration Statement and such other
terms as are typical in warrant agreements of blank check companies (the
“Warrant Agreement”). The Founder Units, together with the
underlying Common Stock and Warrants, are referred to herein as the
“Securities.”
2. Closing
of Purchase and Sale. The closing of the purchase and sale of the
Founder 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 Founder
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 underwriters for the
Initial Public Offering (the “Underwriters”) do not exercise in full
their option to purchase up to 1,875,000 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 468,750 Founder Units
from the holders thereof on a pro rata basis in an amount sufficient to cause
the number of shares of Common Stock underlying the outstanding Founder Units
held by the Purchaser
and its permitted transferees to equal 20% of the Company’s then-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 Underwriters’
over-allotment option. The parties shall give effect to this mandatory
redemption of Founder Units within ten business days following the earlier
to
occur of the expiration or termination of the Underwriters’ over-allotment
option. If the Underwriters exercise their over-allotment option in
full, the Company shall have no right or obligation to redeem any of the Founder
Units.
4. Restrictive
Legends. All certificates representing the Founder Units shall
have endorsed thereon the following legends:
(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 Unit Subscription Agreement, dated as of January
18, 2008, between the Company and Open Acq 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
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 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 Securities involves a high degree of risk. The
Purchaser has sought such accounting, legal and tax advice as the Purchaser
has
considered necessary to make an informed investment decision with respect to
the
Purchaser’s acquisition of the 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 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. The Purchaser
understands that there presently is no public market for the securities and
none
is anticipated to develop in the foreseeable future. The Purchaser
can afford a complete loss of its investment in the Securities. The
Purchaser is purchasing the 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; provided
however the Company acknowledges that certain of the Founder Units may
ultimately be purchased by certain directors of
the
Company provided that such directors make the same representations and
warranties as are contained in this Agreement and any agreement with the
directors includes the same terms and conditions as are contained in this
Agreement.
2
(b) The
Purchaser understands that the Securities 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 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 Securities must be
held
indefinitely unless the Securities are subsequently registered under the
Securities Act or an exemption from such registration is
available. The Purchaser understands that the certificates evidencing
the Securities will be imprinted with a legend that prohibits the transfer
of
the Securities unless the Securities 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 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 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 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.
3
6. Company
Representations and Warranties. In connection with the issuance
and sale of the 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 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.
(b) The
Founder Units and the Common Stock and Warrants underlying the Founder Units
have been duly authorized and, when issued, delivered and paid for in accordance
with this Agreement, the Common Stock underlying such Founder 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 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.
4
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
COMPANY:
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | ||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
President
and Chief Executive Officer
|
||
|
PURCHASER:
|
|||
|
OPEN
ACQ LLC
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxx | ||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Managing
Member
|
||
5
