EXHIBIT A
FORM OF Subscription Agreement
Xxxxxx & Xxxxxx Group, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned (the "Investor") hereby confirms and agrees with
you as follows:
1. The subscription terms set forth herein (this "Subscription") are
made as of the date set forth below between Xxxxxx & Xxxxxx Group, Inc.,
a corporation organized and existing under the laws of the State of
New York (the "Company"), and the Investor.
2. As of the Closing (as defined below) and subject to the terms and
conditions hereof, the Company and the Investor agree that the Investor
will purchase from the Company, and the Company will issue and sell to
the Investor, such number of shares of common stock, par value $0.01
per share, of the Company (the "Common Stock") as is set forth on the
signature page hereto (the "Signature Page") for a purchase price of
$10.79 per share (the "Shares"). The Investor acknowledges that the
offering is not a firm commitment underwriting and that there is no
minimum offering amount.
3. The completion of the purchase and sale of the Shares shall occur
at a closing (the "Closing") which is expected to occur on or about
June 20, 2007. At the Closing, (a) the Company shall cause its transfer
agent to release to the Investor the number of Shares being purchased
by the Investor and (b) the aggregate purchase price for the Shares
being purchased by the Investor will be delivered by or on behalf of
the Investor to the Company.
The provisions set forth in Exhibit A hereto shall be incorporated herein
by reference as if set forth fully herein.
4. The offering and sale of the Shares are being made pursuant to the
Registration Statement and the Prospectus (as such terms are defined below).
The Investor acknowledges that the Company intends to enter into subscriptions
in substantially the same form as this Subscription with certain other
investors and intends to offer and sell (the "Offering") up to an aggregate
of shares of Common Stock pursuant to the Registration Statement and
Prospectus. The Company may accept or reject this Subscription or any one
or more other subscriptions with other investors in its sole discretion.
5. The Company has filed or shall file with the Securities and Exchange
Commission (the "Commission") a prospectus (the "Base Prospectus"), a
preliminary prospectus supplement (the "Preliminary Prospectus") and a
final prospectus supplement (collectively, the "Prospectus") with respect
to the registration statement (File No. 333-138996) (the "Registration
Statement") reflecting the Offering, including all amendments thereto,
the exhibits and any schedules thereto, the documents otherwise deemed to
be a part thereof or included therein by the rules and regulations of the
Commission (the "Rules and Regulations") in conformity with the Securities
Act of 1933, as amended (collectively with the Rules and Regulations, the
"Securities Act"), including Rule 497 thereunder. The Investor hereby
confirms that it has had full access to the Registration Statement, the
Base Prospectus, the Preliminary Prospectus, and the Company's periodic
reports and other information incorporated by reference therein, and was
able to read, review, download, and print such materials.
6. The Company has entered into a Placement Agency Agreement (the
"Placement Agreement"), dated June 15, 2007, with Global Crown Capital,
LLC (the "Placement Agent"), which will act as the Company's placement
agent with respect to the Offering and receive a fee in connection with
the sale of the Shares. The Investor shall be a third party beneficiary
to the representations, warranties and covenants as set forth in
Sections 2 and 4 of the Placement Agreement. Capitalized terms used,
but not otherwise defined, herein shall have the meanings ascribed to
such terms in the Placement Agreement.
7. The obligations of the Company and the Investor to complete the
transactions contemplated by this Subscription shall be subject to the
following:
a. The Company's obligation to issue and sell the Shares to
the Investor shall be subject to: (i) the acceptance by the
Company of this Subscription (as may be indicated by the Company's
execution of the Signature Page hereto), (ii) the receipt by the
Company of the purchase price for the Shares being purchased
hereunder as set forth on the Signature Page, and (iii) the
accuracy of the representations and warranties made by the Investor
and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing Date.
b. The Investor's obligation to purchase the Shares will be subject
to the condition that the Placement Agent shall not have: (i)
terminated the Placement Agreement pursuant to the terms thereof
or (ii) determined that the conditions to closing in the Placement
Agreement have not been satisfied.
8. The Company hereby makes the following representations, warranties,
and covenants to the Investor:
a. The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by this
Subscription and otherwise to carry out its obligations hereunder.
The execution and delivery of this Subscription by the Company and
the consummation by it of the transactions contemplated hereunder
have been duly authorized by all necessary corporate action on the
part of the Company. This Subscription, when accepted by the Company,
shall have been duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
b. The Company shall (i) before the opening of trading on the NASDAQ
Global Market on the next trading day after the Pricing, file a
Form 8-K, disclosing all material aspects of the transactions
contemplated hereby and (ii) make such other filings and notices in
the manner and time required by the Commission with respect to the
transactions contemplated hereby. The Company shall not identify the
Investor by name in any press release or public filing, or otherwise
publicly disclose the Investor's name, without the Investor's prior
written consent, unless required by law or the rules and regulations
of any self-regulatory organization or governmental authority to
which the Company or its securities are subject.
9. The Investor hereby makes the following representations, warranties, and
covenants to the Company:
a. The Investor represents that (i) it has had full access to the
Registration Statement, the Base Prospectus, the Preliminary
Prospectus, and the Company's periodic reports and other information
incorporated by reference therein, prior to or in connection with its
receipt of this Subscription, (ii) it is knowledgeable, sophisticated,
and experienced in making, and is qualified to make, decisions with
respect to investments in securities representing an investment
decision like that involved in the purchase of the Shares, (iii) it
does not have any agreement or understanding, directly or indirectly,
with any person or entity to distribute any of the Shares, and
(iv) it is not an affiliate of the Company as that term is defined
under Rule 501(b) of the Securities Act.
b. The Investor has the requisite power and authority to enter into
this Subscription and to consummate the transactions contemplated
hereby. The execution and delivery of this Subscription by the
Investor and the consummation by it of the transactions contemplated
hereunder have been duly authorized by all necessary action on the
part of the Investor. This Subscription has been executed by the
Investor and, when delivered in accordance with the terms hereof,
will constitute a valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' and contracting parties' rights generally
and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
c. The Investor understands that nothing in this Subscription or
any other materials presented to the Investor in connection with
the purchase and sale of the Shares constitutes legal, tax, or
investment advice. The Investor has consulted such legal, tax, and
investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Shares.
d. Neither the Investor nor any Person acting on behalf of, or
pursuant to any understanding with or based upon any information
received from, the Investor has, directly or indirectly, engaged
in any purchases or sales of the securities of the Company
(including, without limitation, any Short Sales involving the
Company's securities) since the earlier to occur of (i) the time
that the Investor was first contacted by the Placement Agent or
the Company with respect to the transactions contemplated hereby
and (ii) the date that is the tenth (10th) trading day prior to
the date the Investor executes this Subscription. "Short Sales"
include, without limitation, all "short sales" as defined in
Rule 200 promulgated under Regulation SHO under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or
not against the box, and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales,
swaps, "put equivalent positions" (as defined in Rule 16a-1(h)
under the Exchange Act) and similar arrangements (including on a
total return basis), and sales and other transactions through
non-U.S. broker dealers or foreign regulated brokers. The Investor
covenants that neither it, nor any Person acting on behalf of, or
pursuant to any understanding with or based upon any information
received from, the Investor will engage in any transactions in the
securities of the Company (including Short Sales) prior to the time
that the transactions contemplated by this Subscription are
publicly disclosed.
e. The Investor represents that, except as set forth below, (i)
it has had no position, office or other material relationship
within the past three years with the Company or persons known to
it to be affiliates of the Company, (ii) it is not a, and it has
no direct or indirect affiliation or association with any, NASD
member or an Associated Person (as such term is defined under the
NASD Membership and Registration Rules Section 1011) as of the date
the Investor executes this Subscription, and (iii) neither it nor
any group of investors (as identified in a public filing made with
the Commission) of which it is a member, acquired, or obtained the
right to acquire, 20% or more of the Common Stock (or securities
convertible or exercisable for Common Stock) or the voting power
of the Company on a post-transaction basis. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed
to be "none.")
f. The Investor, if outside the United States, will comply with
all applicable laws and regulations in each foreign jurisdiction
in which it purchases, offers, sells, or delivers Shares or has
in its possession or distributes any offering material, in all
cases at its own expense.
10. Notwithstanding any investigation made by any party to this Subscription,
all covenants, agreements, representations, and warranties made by the
Company and the Investor herein will survive the execution of this
Subscription, the delivery to the Investor of the Shares being purchased,
and the payment therefor.
11. This Subscription may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Investor.
12. In case any provision contained in this Subscription should be invalid,
illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained herein will not in
any way be affected or impaired thereby.
13. This Subscription will be governed by, and construed in accordance
with, the internal laws of the state of New York, without giving effect
to the principles of conflicts of law that would require the application
of the laws of any other jurisdiction.
14. This Subscription may be executed in one or more counterparts, each of
which will constitute an original, but all of which, when taken together,
will constitute but one instrument, and will become effective when one or
more counterparts have been signed by each party hereto and delivered to
the other parties.
15. The Investor acknowledges and agrees that such Investor's receipt of
the Company's counterpart to this Subscription shall constitute written
confirmation of the Company's sale of Shares to such Investor.
16. In the event that the Placement Agreement is terminated by the
Placement Agent pursuant to the terms thereof, this Subscription shall
terminate without any further action on the part of the parties hereto.
INVESTOR SIGNATURE PAGE
Number of Shares: ______________________________
Purchase Price Per Share: ______________________________
Aggregate Purchase Price: ______________________________
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
Dated as of: June ____, 2007
---------------------------------
INVESTOR
By: _________________________________
Print Name: _________________________________
Title: _________________________________
Name in which Shares are to be registered: _________________________
Mailing Address: _________________________
Taxpayer Identification Number: _________________________
Agreed and Accepted this ___day of June 2007:
XXXXXX & XXXXXX GROUP, INC.
By: _________________________________
Title: _________________________________
The sale of the shares purchased hereunder was made pursuant to a
registration statement or in a transaction in which a final prospectus
would have been required to have been delivered in the absence of
Rule 172 promulgated under the Securities Act.
EXHIBIT A
TO BE COMPLETED BY INVESTOR
Delivery by electronic book-entry at The Depository Trust Company
("DTC"), registered in the Investor's name and address as set forth
on the Signature Page of the Subscription to which this Exhibit A is
attached, and released by American Stock Transfer & Trust Company,
the Company's transfer agent (the "Transfer Agent"), to the Investor
at the Closing.
Name of DTC Participant (broker-dealer
at which the account or accounts to be
credited with the Shares are maintained) _____________________________
DTC Participant Number _____________________________
Name of Account at DTC Participant
being credited with the Shares _____________________________
Account Number at DTC Participant
being credited with the Shares _____________________________
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE SUBSCRIPTION
TO WHICH THIS EXHIBIT A IS ATTACHED BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL:
(I) DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL
AT CUSTODIAN ("DWAC") INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH
ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
(II) REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR
TO THE FOLLOWING ACCOUNT :
Institution: Citibank N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ABA Routing Number: 0000-0000-0
Acct Name: Global Crown Capital, LLC
Acct No. 202118253
Such funds shall be held in escrow pursuant to an escrow agreement entered
into between Citibank, N.A. (the "Escrow Agent") and the Placement Agent
(the "Escrow Agreement") until the Closing and delivered by the Escrow
Agent on behalf of the Investor to the Company upon the satisfaction, in
the sole judgment of the Company, of the conditions set forth in Section
7(b) of the Subscription to which this Exhibit A is attached. The Company
and the Investor agree to indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages, expenses, and claims
(including, without limitation, court costs and reasonable attorneys fees)
("Losses") with respect to the funds held in escrow pursuant hereto or
arising under the Escrow Agreement, unless it is finally determined that
such Losses resulted directly from the willful misconduct or gross
negligence of the Escrow Agent. Anything in this paragraph to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for any
special, indirect, or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Escrow Agent has
been advised of the likelihood of such loss or damage and regardless of
the form of action.
