Exhibit E.
March 9, 2000
Board of Directors
Xxxxx Corporation
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, XX 00000
Re: Subscription Agreement ("Agreement") for the Purchase of 100,000 of
Xxxxx Corporation's Shares of Common Stock
Gentlemen:
1. Subscription. Subject to the terms and conditions hereof, I ("Subscriber")
agree to subscribe for and purchase ("Purchase") 100,000 shares of
Common Stock, no par value per share, (the "Shares") of Xxxxx Corporation
(the "Corporation"), and Xxxxx Corporation agrees to sell the Shares to
Subscriber.
2. Purchase Price. The purchase price for the Shares is $3,000,000, or
$30.00 per share. The closing price of the Common Stock of the Corporation
on the American Stock Exchange at the close of business March 9, 2000 is
$26.125.
3. Shareholder Approval. The Purchase and Sale shall be subject to the
approval of the Shareholders of the Corporation at the 2000 Annual Meeting
of Shareholders, which approval requires the affirmative vote of a majority
of the shares of Common Stock of the Corporation voting on the proposition.
If such approval is not obtained, the Subscriber shall immediately return
such shares to the Corporation in an exchange for $3,000,000, the original
purchase price.
The Subscriber agrees that as part of the 2000 Annual Meeting of
Shareholders he will not vote his shares against this transaction.
4. Closing. The closing ("Closing") for the purchase and of the Shares
shall be held no later than the fifth business day following the
authorization for listing of the Shares on the American Stock Exchange
at the offices of the Corporation, 000 Xxxxxxxx Xxxxx Xxxxxx, Xxx, XX.
At the Closing, the following events shall occur or documents shall be
delivered as indicated:
(a) Subscriber shall deliver to the Corporation a check or wire transfer in
the amount of $3,000,000.
(b) The Corporation shall deliver to Subscriber a stock certificate(s) in
the amount of the Shares issued in Subscriber's name with an appropriate
legend referring to any restrictions on transfer of the Shares under Federal
and
State securities laws.
(c) The Corporation and Subscriber will comply with any other reasonable
conditions requested by the other or required by law.
5. Representations and Warranties. In connection with Subscriber's
purchase of the Shares, Subscriber hereby represents and warrants to the
Corporation that:
(a) Subscriber understands that the Shares are being sold in reliance upon the
"private placement" exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and
applicable state laws. Accordingly, Subscriber understands that the
offering will not be registered with or approved by any state or
federal regulatory agency.
(b) Subscriber is purchasing the Shares solely for Subscriber's own account,
for investment purposes only, and not for resale in connection with any
distribution thereof. Subscriber understands that Subscriber may not be
able to transfer the Shares unless such securities are first registered
under the Securities Act and under any applicable state securities law,
unless an exemption from the registration requirements is available.
(c) Subscriber is able to bear the economic risk of Subscriber's investment in
the Corporation, which Subscriber understands could result in a total loss
of that investment.
(d) Subscriber has adequate business and/or investment experience to fully
understand the nature of Subscriber's investment in the Corporation.
(e) Subscriber is aware of the provisions of Rule 144, promulgated under
the Securities Act, which in substance permit limited public resale of
"restricted securities" acquired directly or indirectly from the issuer
thereof (or from an affiliate of such issuer) in a nonpublic offering
subject to the satisfaction of certain conditions, including, among other
things: the availability of certain public information about the Corporation;
the resale occurring not less than one year after the party has purchase
sold; the existence of a public trading market for the Corporation's
securities; and the amount of securities being sold during any three
month period not exceeding the specified limitations stated therein.
Subscriber further acknowledges and understands that at the time Subscriber
wishes to sell the Shares there may be no public market upon which to make
such a sale, and that, even if such a public market then exists, the
Corporation may not be satisfying the current public information
requirements of Ru
6. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with New
York law.
(b) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(c) This Agreement contains the entire understanding of the parties hereto in
respect to the transaction contemplated hereby and supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(d) This Agreement may be amended, modified or terminated only by a subsequent
writing signed by both parties or authorized representatives thereof.
Subscriber has executed this Agreement as of March 9, 2000.
s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
This Agreement is accepted as of March 9, 2000.
XXXXX CORPORATION
By: s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: VP-Administration,
Secretary & General
Counsel
