EX-10.4



 




Exhibit 10.4




FORM OF FOUNDERS’ SHARES SUBSCRIPTION AGREEMENT




     This SHARE SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of February 27, 2008,
by and between Market Street Acquisition Corp., a Delaware corporation (the “Company”), and
[_] (the “Subscriber”).



     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 35,000,000 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 Subscriber desires to purchase and acquire, certain Shares (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 Shares. The Subscriber hereby subscribes for and purchases
from the Company, and the Company hereby issues and sells to the Subscriber, [_] ([_]) shares (the
“Shares”) of Common Stock of the Company for an aggregate purchase price of $[_] ($[_]),
the receipt and sufficiency of which is hereby acknowledged. Upon receipt by the Company of said
consideration on this date, the Company shall issue to the Subscriber a stock certificate or
certificates (or, if not certificated, provide documentation reflecting the registration in the
name of the undersigned on the stock ledger of the Company) representing such fully-paid and
non-assessable shares of Common Stock of the Company. The subscription will represent [_] ([_]%)
of the total number of outstanding shares of Common Stock of the Company.



     2. Redemption of Shares. 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
5,250,000 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 1,312,500 Shares
from the Subscriber and other individuals who will beneficially own Common Stock prior to the
Initial Public Offering (the “Other Insiders”) thereof on a pro rata basis in an amount
sufficient to cause the number of Shares held by the Subscriber and the Other Insiders and their
respective 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
Subscriber or the Other Insiders 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 Shares 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 Shares.



     3. Restrictive Legends. All certificates representing the Shares shall have endorsed
thereon the following legends:



 









 





Exhibit 10.4




     (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 2 of the Share Subscription Agreement, dated as of February 27, 2008, between
the Company and [_].”



     (c) Any legend required by state securities or blue sky laws or regulations.



     4. Investment Representations. In connection with the purchase of the Shares, the
Subscriber represents to the Company the following:



     (a) The Subscriber 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 Shares. The Subscriber has been afforded the opportunity to ask questions
of the executive officers and directors of the Company. The Subscriber understands that its
investment in the Shares involves a high degree of risk. The Subscriber has sought such accounting,
legal and tax advice as the Subscriber has considered necessary to make an informed investment
decision with respect to the Subscriber’s acquisition of the Shares. The Subscriber 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 Shares, and is able to bear the economic risk of an investment in the Shares in
the amount contemplated hereunder. The Subscriber understands that there presently is no public
market for the securities and none is anticipated to develop in the foreseeable future. The
Subscriber can afford a complete loss of its investment in the Subscriber. The Subscriber is
purchasing the Shares for investment for the Subscriber’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.



     (b) The Subscriber understands that the Shares 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 Subscriber’s compliance with, the representations
and warranties and agreements of the Subscriber set forth herein to determine the availability of
such exemptions and the eligibility of the Subscriber to acquire such Shares, including, but not
limited to, the bona fide nature of the Subscriber’s investment intent as expressed herein.



     (c) The Subscriber further acknowledges and understands that the Shares must be held
indefinitely unless the Shares are subsequently registered under the Securities Act or an exemption
from such registration is available. The Subscriber understands that the certificates evidencing
the Shares will be imprinted with a legend that prohibits the transfer of the Shares unless the
Shares are registered or such registration is not required in the opinion of counsel for the
Company.



     (d) The Subscriber represents that the Subscriber is an “accredited investor” as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.



     (e) The Subscriber has all necessary [corporate][limited liability company][limited
partnership] power and authority, if applicable, to enter into this Agreement and to consummate the
transactions contemplated hereby. All [corporate][limited liability company][limited partnership]
action, if applicable,



 









 





Exhibit 10.4



necessary to be taken by the Subscriber to authorize the execution, delivery and performance
of this Agreement and all other agreements and instruments delivered by the Subscriber in
connection with the transactions contemplated hereby has been duly and validly taken, and this
Agreement has been duly executed and delivered by the Subscriber. This Agreement constitutes the
valid, binding and enforceable obligation of the Subscriber, 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 Subscriber of the Shares does not conflict with the organizational documents of the
Subscriber, if applicable, or with any material contract by which the Subscriber or its property is
bound, or any laws or regulations or decree, ruling or judgment of any court applicable to the
Subscriber or its property.




     (f) The Subscriber 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 Subscriber 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
Shares or the fairness or suitability of the investment in the Shares, nor have such authorities
passed upon or endorsed the merits of the offering of the Shares.



[Signature Page to Follow]




 









 





Dated: February 27, 2008




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	[_]          	 
	 	 	Title:  	[_] 	 
	 


Accepted and Agreed on this

27th day of February, 2008:




MARKET STREET ACQUISITION CORP.




	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Jason N. Ader
	 	 
	 

	 	Title:
	 	Chief Executive Officer and President	 	 





[Signature Page to Form of Founder Shares Subscription Agreement]