FX REAL ESTATE AND ENTERTAINMENT INC. SUBSCRIPTION AGREEMENT
EXHIBIT 10.1
FX REAL ESTATE AND ENTERTAINMENT INC.
SUBSCRIBER:
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[ ] | |
SECURITIES SUBSCRIBED FOR:
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[ ] units consisting of [ ] shares of Common Stock and Common Stock Purchase Warrants to purchase up to [ ] shares of Common Stock | |
AGGREGATE PURCHASE PRICE:
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$[ ] |
This SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of July ___, 2008, is made by
and between FX Real Estate and Entertainment Inc., a Delaware corporation (the “Company”),
and the undersigned subscriber (the “Subscriber”).
1. Subscription. The Subscriber hereby irrevocably subscribes for and agrees to
purchase the securities of the Company specified above (the “Securities”) for the aggregate
purchase price specified above (the “Aggregate Purchase Price”). The Subscriber has
simultaneously herewith made full payment of the Aggregate Purchase Price in immediately available
funds by wire transfer in accordance with instructions from the Company. Upon the Company’s receipt
of the entire Aggregate Purchase Price, the Company shall (a) cause The Bank of New York Mellon
Corporation, as its transfer agent (the “Transfer Agent”), to issue to the Subscriber a
statement evidencing ownership of the Shares (as defined in Section 2 below), free and clear of all
restrictions (except as expressly provided in Section 6 below), and registration thereof in the
Subscriber’s name on the Transfer Agent’s records in book-entry form under The Direct Registration
System and (b) issue the Warrants (as defined in Section 2 below) in the name of the Subscriber.
2. Definitions. In addition to the terms defined elsewhere in this Agreement, the
following terms have the meanings indicated:
“Shares” means the shares of common stock, $0.01 par value, of the Company comprising
a portion of the Securities being subscribed for and purchased by the Subscriber hereunder.
“Warrants” means the Common Stock Purchase Warrant of the Company to purchase Warrant
Shares at an exercise price of $4.50 per share, in substantially the form attached hereto as
Exhibit A, and the Common Stock Purchase Warrant to purchase Warrant Shares at an exercise
price of $5.50 per share, in substantially the form attached hereto as Exhibit B,
comprising a portion of the Securities being subscribed for and purchased by the Subscriber
hereunder.
“Warrant Shares” means the shares of common stock, $0.01 par value, of the Company
issuable upon exercise of the Warrants.
3. Offering Materials. The Subscriber represents and warrants that it is in receipt
of and that it has carefully read the following periodic reports filed by the Company with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended,
(collectively, the “Offering Materials”): (a) the Company’s Annual Report on Form 10-K for
the fiscal year ended
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December 31, 2007 (the “Form 10-K”); (b) the Company’s Amendment No.
1 to the Form 10-K; (c) the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008; and (d) the Company’s Current Reports on Form 8-K dated May 13, 2008 and July 3,
2008.
4. Representations and Warranties of the Company. The Company represents and warrants
that: (a) it is a corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware, with full power and authority to carry on its business as currently
conducted; (b) it, by appropriate corporate action, has, or will have prior to the issuance of the
Securities, duly authorized the execution, delivery and performance of this Agreement and all of
the transactions contemplated hereby, including the issuance and delivery of the Securities; (c)
neither the Shares nor Warrant Shares are subject to preemptive or other rights of any stockholders
of the Company and when issued in accordance with the terms of this Agreement and the Warrants, the
Shares and Warrant Shares, as applicable, will be validly issued, fully paid and non-assessable;
and (d) the Company’s performance of this Agreement and the Warrants and compliance with the
provisions hereof and thereof will not violate any provision of any applicable law or of its
charter and bylaws (as currently in effect), and will not conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon, any of its material properties or
assets, pursuant to the terms of any material indenture, mortgage or other agreement or instrument
binding upon it or any of its subsidiaries, other than such breaches, defaults or liens which would
not have a material adverse effect on the Company and its subsidiaries taken as a whole.
5. Representations and Warranties of Subscriber. The Subscriber hereby represents and
warrants that: (a) it has the full legal right and power and all authority and approval required to
execute, deliver and perform its obligations under this Agreement; (b) it is acquiring the
Securities solely for its own account, for present investment and not with a view toward resale or
other distribution within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”), in violation of the Securities Act; provided, however,
that by making the representations herein, Subscriber does not agree to hold any of the Securities
for any minimum or other specific term and Subscriber reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act; (c) it is an “accredited investor,” within the meaning of Rule 501(a) of
Regulation D under the Securities Act; (d) it, either alone or together its representatives, has
such knowledge, sophistication and experience in business, financial and investment matters that it
is capable of evaluating the merits and risks of an investment in the Securities, and has so
evaluated the merits and risk of such investment; (e) it understands that it must bear the economic
risk of this investment in the Securities indefinitely, and is able to bear such risk and is able
to afford a complete loss of such investment; (f) it has received and reviewed the Offering
Materials and has been afforded the opportunity to ask questions of, and receive answers from
representatives of the Company concerning the terms and conditions of the offering of the
Securities and the merits and risks of investing in the Securities and to obtain any additional
information necessary to verify the accuracy of any information provided by the Company, and in
general had access to all information about the Company it deemed necessary to make an informed
investment decision with respect to the purchase of the Securities. The Subscriber further
represents and warrants that it has consulted with such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Securities.
6. Restrictions on Transfer. Subscriber acknowledges that (a) the offer and sale of
the Securities has not been registered under the Securities Act, or applicable state securities
laws, and the Securities may not be sold, transferred, pledged, or otherwise disposed of unless
subsequently so registered or unless the Subscriber delivers to the Company an opinion of counsel
reasonably satisfactory to the Company that such sale, transfer, pledge or disposition is exempt
from the registration requirements of the Securities Act; (b) the Company is under no obligation to
register or facilitate any resale of the Shares, the Warrants or the Warrant Shares; and (c) the
Shares and, upon issuance, the Warrant Shares
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registered in the name of the Subscriber on the
Transfer Agent’s records in book-entry form under The Direct Registration System shall contain the
following notation:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
The Subscriber further agrees that certificates or other instruments evidencing the Warrants
shall bear the foregoing notation as a legend thereon.
7. Miscellaneous.
7.1. Any and all notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed to be sufficiently given or served for
all purposes by being sent as registered or certified mail, return receipt requested, postage
prepaid or overnight courier or facsimile, in the case of the Company, addressed to it at FX Real
Estate and Entertainment Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, Facsimile: (000) 000-0000, Telephone: (000) 000-0000; and in the case of the Subscriber to
the address and other contact information for correspondence set forth on the signature page
hereof.
7.2. No provision of this Agreement may be waived or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Subscriber or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such right.
7.3. This Agreement shall be governed and construed in all respects in accordance with the
laws of the State of New York without giving effect to conflicts of laws principles thereof. Each
party consents to the personal jurisdiction in that State and voluntarily submits to the exclusive
jurisdiction of the courts of that State located in New York City in any action or proceeding with respect to
this Agreement, including the federal courts located in New York City. The headings used in this
Agreement are for convenience of reference only and do not define, limit or effect the provisions
hereof. The word “it” when used in this Agreement to refer to the Subscriber shall mean the
Subscriber whether a natural person or an entity.
7.4. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. If any provision of this Agreement is invalid or
unenforceable under any applicable law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed to be modified to conform with such law.
Any provision hereof that may prove invalid or unenforceable under any applicable law shall not
affect the validity or enforceability of any other provision hereof.
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7.5. This Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or email attachment, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or email-attached signature page were an original thereof.
7.6. This Agreement, together with Exhibits A and B hereto, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and supersedes any prior
agreements and understandings, oral or written, between the parties regarding the subject matter
hereof. The representations and warranties, agreements and covenants contained herein shall
survive consummation of the sale of the Securities hereunder.
7.7 This Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person or entity. The Subscriber may not assign in whole or in part this
Agreement without the prior written consent of the Company.
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IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement as of the date
first set forth above.
| SUBSCRIBER: | ||||||||
| Name of Subscriber [Please Print] |
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| By: | ||||||||
| Name and Title of Authorized Signatory [Please Print] |
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| Address; phone and facsimile numbers: | ||||||||
| Tax Identification Number: | ||||||||
The Company hereby acknowledges, agrees to
and accepts the terms of the foregoing
Subscription Agreement as of the date first
set forth above:
and accepts the terms of the foregoing
Subscription Agreement as of the date first
set forth above:
| FX Real Estate and Entertainment Inc. | ||||
By: |
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| Title: | ||||
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