ex101tos10710701292008.htm


    Exhibit
      10.1

     

     

    UNIT
      SUBSCRIPTION AGREEMENT

     

    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.

     

     

    
      
        
        

      

      
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    (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.

     

     

    
      
        
        

      

      
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    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.

     

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day
      and year first above written.

     

    
      	 	
              COMPANY:

            
	 	
              OPEN
                ACQUISITION CORP.

            
	 	 
	 	 
	 	
              By:

            	/s/
              Michael
              S. Liebowitz
	 	 	
              Name:

            	
              Michael
                S. Liebowitz

            
	 	 	
              Title:

            	
              President
                and Chief Executive Officer

            
	 	 
	 	 
	 	
              PURCHASER:

            
	 	
              OPEN
                ACQ LLC

            
	 	 
	 	 
	 	
              By:

            	/s/
              Howard
              M. Lorber
	 	 	
              Name:

            	
              Howard
                M. Lorber

            
	 	 	
              Title:

            	
              Managing
                Member

            


    

     

    
 

    
      
         

      

      
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