FOURSQUARE CAPITAL CORP. FORM OF PRIVATE PLACEMENT PURCHASE AGREEMENT
Exhibit 10.1
PRIVATE PLACEMENT PURCHASE AGREEMENT (this “Agreement”) made as of this [___] day of
[___] 2009, by and between Foursquare Capital Corp., a Maryland corporation (the
“Company”), and AllianceBernstein L.P., [Greenfield related entity], Rialto Capital
Management, LLC and Flexpoint Fund L.P. (each, a “Purchaser” and collectively the
“Purchasers”).
WHEREAS, each Purchaser has a substantive, pre-existing relationship with the Company;
WHEREAS, the Company has filed a registration statement (the “Registration Statement”)
on Form S-11 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
“IPO”) of up to [___] shares of common stock of the Company, par value $0.01 per share (the
“Common Stock”); and
WHEREAS, concurrent with the consummation of the IPO, the Company desires to issue and sell,
and each of the Purchasers desires to purchase, the number of shares of Common Stock set forth
opposite such Purchaser’s name on Annex A for the aggregate purchase price set forth opposite such
Purchaser’s name on Annex A.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as follows:
1. Sale and Purchase of Private Placement Common Stock. Subject to and concurrent
with the consummation of the IPO, the Company shall issue and sell to each of the Purchasers, and
each of the Purchasers individually agrees that it shall purchase, the number of shares of Common
Stock set forth opposite each such Purchaser’s name on Annex A for the aggregate purchase price set
forth opposite such Purchaser’s name on Annex A. For the avoidance of doubt, the obligations of
the Purchasers under this Agreement are individual and not joint and several.
2. Closing. The closing of the purchase and sale of Common Stock hereunder, including
payment for and delivery of such Common Stock, will take place at the offices of the Company or the
Company’s legal counsel concurrently with, and shall be subject to, (i) the completion of the IPO
and (ii) the entry by the Company and each Purchaser into the registration rights agreement
described in Section 6. At the closing, the Company shall deliver to each Purchaser one or more
certificates evidencing the Common Stock being purchased by such Purchaser, substantially in the
form attached hereto as Exhibit 1 registered in the name of the relevant Purchaser or its
nominee upon the payment of the relevant purchase price set forth on Annex A in immediately
available funds by wire transfer to an account designated by the Company.
3. Representations and Warranties of the Company. In connection with the issuance and
sale of Common Stock to each Purchaser, the Company hereby represents and warrants to each
Purchaser the following:
3.1 The Company is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Maryland and the Company has all necessary corporate power and
authority to enter into this Agreement and to consummate the transactions contemplated hereby.
3.2 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
issuance and sale by the Company of Common Stock hereunder 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 or assets 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 or assets.
3.3 Upon issuance in accordance with, and payment pursuant to, the terms hereof, each
Purchaser will have good title to the Common Stock being purchased by it hereunder, free and clear
of all liens, claims and encumbrances of any kind, other than transfer restrictions hereunder and
under other agreements contemplated hereby.
3.4 The Company has a substantive, pre-existing relationship with each Purchaser and was
directly contacted by each Purchaser or its agents independent of the IPO. The Company and its
Affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act) (i) did not
identify or contact any Purchaser through the marketing of the IPO and (ii) was not independently
contacted by any Purchaser as a result of the general solicitation by means of the Registration
Statement.
3.5 The Common Stock to be purchased pursuant to this Agreement has been duly and validly
authorized by the Company for issuance and sale pursuant to this Agreement and, when issued and
delivered against payment therefor as provided herein, will be duly and validly issued and fully
paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or
other claim.
4. Representations and Warranties of the Purchasers. Each Purchaser hereby
individually represents and warrants on behalf of itself to the Company that:
4.1 It is an “accredited investor” as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act.
4.2 The shares of Common Stock being purchased by it hereunder are being acquired for its own
account, only for investment purposes and not with a view to, or for resale in connection with, any
public distribution or public offering thereof within the meaning of the Securities Act.
4.3 It is duly organized, validly existing and in good standing under the laws of the relevant
jurisdiction. It has all necessary corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby.
4.4 All corporate action necessary to be taken by it to authorize the execution, delivery and
performance of this Agreement and all other agreements and instruments delivered by it in
connection with the transactions contemplated hereby has been duly and validly taken and this
Agreement has been duly executed and delivered by it. This Agreement constitutes the valid,
binding and enforceable obligation of such Purchaser, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium,
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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 it of Common
Stock hereunder does not conflict with its organizational documents or with any material contract
by which it or its property is bound, or any laws or regulations or decree, ruling or judgment of
any court applicable to it or its property.
4.5 It understands and acknowledges that (i) the offering of the shares of Common Stock to be
purchased pursuant to this Agreement will not be registered under the Securities Act on the grounds
that the offering and sale of such securities is exempt from registration under the Securities Act
pursuant to Section 4(2) thereof and exempt from registration pursuant to applicable state
securities or blue sky laws and, therefore, the shares of Common Stock to be purchased hereunder
will be characterized as “restricted securities” under the Securities Act and such laws and may not
be sold unless they are subsequently registered under the Securities Act and qualified under state
law or unless an exemption from such registration and such qualification is available.
4.6 The Purchaser has a substantive, pre-existing relationship with the Company and was
directly contacted by the Company or the Company’s agents independent of the IPO. The Purchaser
(i) was not identified or contacted through the marketing of the IPO and (ii) did not independently
contact the Company as a result of the general solicitation by means of the Registration Statement.
4.7 The Purchaser (i) has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of the Purchaser’s prospective investment in the
Common Stock; (ii) has the ability to bear the economic risks of the Purchaser’s prospective
investment; and (iii) has not been offered the shares of Common Stock to be purchased hereunder by
any form of advertisement, article, notice, or other communication published in any newspaper,
magazine, or similar medium; or broadcast over television or radio; or any seminar or meeting whose
attendees have been invited by any such medium.
5. Restriction on Sale of Private Placement Shares. Until [ ] from the date of
this Agreement, the Purchaser will not, without the prior written consent of the Company, directly
or indirectly, sell, offer, dispose of, hedge or enter into any transaction that is designed to, or
might reasonably be expected to result in the disposition of, any Private Placement Shares, other
than (i) to any affiliate, as long as such affiliate agrees to
be bound by the provisions of this Agreement, (ii) as a result of the operation of law or (iii) in
connection with any business combination transaction involving the Company approved by a majority
of the Company’s independent directors; it being understood that any transfers of the shares or
other equity interests in any Purchaser by the holders thereof shall be permitted and not be deemed
to be a breach of this Section 5.
6. Registration Rights Agreement. At the time of the completion of the IPO, the
Company and each Purchaser shall enter into a registration rights agreement, substantially in the
form attached hereto as Exhibit 2, pursuant to which the Company will grant certain
registration rights to each Purchaser relating to the shares of Common Stock to be purchased
hereunder.
7. Successors and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors of the parties hereto whether so
expressed or not. Notwithstanding the foregoing or anything to the contrary herein, the parties
may not assign this Agreement or their obligations hereunder.
8. Amendments. 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.
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9. Counterparts; Facsimile. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument. This Agreement or any counterpart may
be executed via facsimile transmission, and any such executed facsimile copy shall be treated as an
original.
10. Governing Law. This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of New York. The parties hereby
agree that any action, proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York or the United States
District Court for the Southern District of New York, and irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive. The parties hereby waive any objection to such exclusive
jurisdiction and agree not to plead or claim that such courts represent an inconvenient forum.
11. Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person; provided that the Underwriters
shall be third party beneficiaries of this Agreement.
12. Legends. Each certificate, if any, representing the shares of Common Stock to be
purchased hereunder shall be endorsed with the following legend or a substantially similar legend:
“The securities represented by this certificate have not been registered under the Securities
Act of 1933, as amended, and are “restricted securities” as defined in Rule 144 promulgated under
the Securities Act. The securities may not be sold or offered for sale or otherwise distributed
except (i) in conjunction with an effective registration statement for the shares under the
Securities Act of 1933, as amended, or (ii) pursuant to an opinion of counsel, satisfactory to the
company, that such registration or compliance is not required as to said sale, offer, or
distribution.
Until [ ], the securities
represented by this certificate are subject to transfer restrictions
set forth in the private placement purchase agreement dated as of
[ ], 2009, by and among Foursquare
Capital Corp., and AllianceBernstein L.P., [Greenfield related entity],
Rialto Capital Management, LLC and Flexpoint Fund L.P.”
13. Severability. In case any provision of this Agreement shall be found by a court of
law to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
14. Entire Agreement. This Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof and they supersede, merge, and render void every other prior written
and/or oral understanding or agreement among or between the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
COMPANY:
| FOURSQUARE CAPITAL CORP. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PURCHASERS:
| ALLIANCEBERNSTEIN L.P. |
||||||
| By: | AllianceBernstein Corporation | |||||
| By: |
|
|||||
| Title: |
| [GREENFIELD RELATED ENTITY] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| RIALTO CAPITAL MANAGEMENT, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FLEXPOINT FUND L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Private Placement Purchase Agreement Signature Page]
Annex A
| Number of Shares of | ||||
| Name of Purchaser | Common Stock | Aggregate Purchase Price | ||
ALLIANCEBERNSTEIN L.P.
|
||||
[GREENFIELD RELATED ENTITY] |
||||
RIALTO CAPITAL MANAGEMENT, LLC |
||||
FLEXPOINT FUND L.P. |
Exhibit 1
Form of Common Stock Certificate
[continued on next page]
Exhibit 2
Form of Registration Rights Agreement
[continued on next page]
