SUBSCRIPTION AGREEMENT
Exhibit 10.1
H&R Block, Inc.
Xxx X&X Xxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxx X&X Xxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
1. This Subscription Agreement, including the Terms and Conditions For Purchase of Shares
attached hereto as Annex I (collectively, this “Agreement”) is made as of the date set forth below
between H&R Block, Inc., a Missouri corporation (the “Company”), which is a Well Known Seasoned
Issuer (as that term is defined in Rule 405 (“Rule 405”)) of the Securities Act of 1933, as amended
(the “Act”), and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of 8,285,714 shares (the “Shares”) of its common stock, without par value (the “Common Stock”),
subject to adjustment by the Company’s Board of Directors, or a committee thereof, for a purchase
price of $17.50 per share (the “Purchase Price”).
3. The offering and sale of the Shares (the “Offering”) are being made pursuant to (a) an
Automatic Shelf Registration Statement (as that term is defined in Rule 405 of the Act) filing on
Form S-3 (including the prospectus contained therein (the “Base Prospectus”), the “Registration
Statement”), filed or to be filed by the Company with the Securities and Exchange Commission (the
"Commission”), which is effective upon such filing, (b) if applicable, any preliminary prospectus
relating to the Offering, and (c) if applicable, certain “free writing prospectuses” (as that term
is defined in Rule 405 of the Act), that have been or will be filed with the Commission and
delivered to the Investor on or prior to the date hereof containing certain supplemental
information regarding the Shares and terms of the Offering that will be filed with the Commission
and delivered to the Investor (or made available to the Investor by the filing by the Company of an
electronic version thereof with the Commission).
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the number of Shares of Common Stock set forth below
for the aggregate purchase price set forth below. The Shares shall be purchased pursuant to the
Terms and Conditions for Purchase of Shares attached hereto as Annex I and incorporated
herein by this reference as if fully set forth herein. The Investor acknowledges that the Offering
is not being underwritten by Lazard Capital Markets LLC (the “Placement Agent”) and that there is
no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall be determined by
such Investor as follows (check one):
[___] A. Delivery by crediting the account of the Investor’s prime broker
(as specified by the Investor on Exhibit A annexed hereto) with
the Depository Trust Company (“DTC”)
through its
Deposit/Withdrawal At Custodian (“DWAC”) system, whereby the
Investor’s prime broker shall initiate a DWAC transaction on the
Closing Date using its DTC participant identification number and
released by BNY Mellon Shareowner Services LLC, the Company’s
transfer agent (the “Transfer Agent”), at the Company’s
direction. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE
EXECUTION OF THIS AGREEMENT 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 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: |
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: H&R Block, Inc.
Account Number: 796699759
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: H&R Block, Inc.
Account Number: 796699759
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
- OR -
[___] B. Delivery versus payment (“DVP”) through DTC (i.e., the Company
shall deliver Shares registered in the Investor’s name and
address as set forth below and released by the Transfer Agent to
the Investor through DTC at the Closing directly to the
account(s) at Lazard Capital Markets LLC (“LCM”) identified by
the Investor and simultaneously therewith payment shall be made
by LCM by wire transfer to the Company). NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
| (I) | NOTIFY LCM OF THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND | ||
| (II) | CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR. |
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IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC OR DVP IN A
TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES
NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE OFFERING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) 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, (b) it is not a FINRA member or an Associated Person (as
such term is defined under the FINRA Membership and Registration Rules Section 1011) as of the
Closing, and (c) neither the Investor nor any group of Investors (as identified in a public filing
made with the Commission) of which the Investor is a part in connection with the Offering of the
Shares, acquired, or obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible into 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.”)
7. The Investor acknowledges that, prior to the effectiveness of this Agreement, the Investor
has received or will receive (or otherwise had made available to it by the filing by the Company of
an electronic version thereof with the Commission) the Base Prospectus which is a part of the
Company’s Registration Statement and the documents incorporated by reference therein relating to
the Stock, and any free writing prospectus, (collectively, the “Disclosure Package”) and certain
additional information regarding the Offering, including pricing information (collectively, the
"Offering Information”). The Offering Information may be provided to the Investor by any means
permitted under the Act, including in the prospectus supplement, if any, a free writing prospectus
or oral communications.
8. No offer by the Investor to buy Shares will be accepted and no part of the Purchase Price
will be delivered to the Company until the Registration Statement has been accepted for filing by
the Securities and Exchange Commission, the Investor has received the Offering Information and the
Company has accepted such offer by countersigning a copy of this Agreement, and any such offer may
be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the
Company (or the Placement Agent on behalf of the Company) sending (orally, in writing or by
electronic mail) notice of its acceptance of such offer. An indication of interest will involve no
obligation or commitment of any kind until the Investor has been delivered the Offering Information
and this Agreement is accepted and countersigned by or on behalf of the Company.
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Number of Shares: |
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Purchase Price Per Share:
|
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Aggregate Purchase Price:
|
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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: October 21, 2008 | ||||
| INVESTOR | ||||
| By: | ||||
| Print Name: | ||||
| Title: | ||||
| Address: | ||||
Agreed and Accepted
this 22nd day of October, 2008:
this 22nd day of October, 2008:
| H&R BLOCK, INC. | ||||
By: |
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Title: |
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the Shares; Placement Agent.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Shares to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 The Investor acknowledges that the Company has agreed to pay Lazard Capital Markets LLC
(the “Placement Agent”) a fee (the “Placement Fee”) in respect of the sale of Shares to the
Investor.
2.4 The Company has entered into a Placement Agent Agreement, dated the date hereof (the
“Placement Agreement”), with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor, which shall be a
third party beneficiary thereof.
3. Closings and Delivery of the Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and the
Placement Agent, and of which the Investors will be notified in advance by the Placement Agent, in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act”). At the Closing, (a) the Company shall cause Mellon Investor Services LLC, the
Company’s “Transfer Agent”, to deliver to the Investor the number of Shares set forth on the
Signature Page registered in the name of the Investor or, if so indicated on the Investor
Questionnaire attached hereto as Exhibit A, in the name of a nominee designated 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.
3.2 (a) Conditions to the Company’s Obligations. The Company’s obligation to issue
and sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the
purchase price for the Shares being purchased hereunder as set forth on the Signature Page and (ii)
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.
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(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to the accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing Date, including without limitation, those contained in the Placement Agreement, and 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 the closing in the Placement
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Shares that they have agreed to purchase from
the Company.
3.3 Delivery of Funds.
(a) DWAC Delivery. If the Investor elects to settle the Shares purchased by such
Investor through DTC’s Deposit/Withdrawal at Custodian (“DWAC”) delivery system, no later than
one (1) business day after the execution of this Agreement by the Investor and the Company, the
Investor shall 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 designated by the Company and
the Placement Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow
Agreement”), dated the date hereof, by and among the Company, the Placement Agent and JPMorgan
Chase Bank, N.A. (the “Escrow Agent”):
JPMorgan Chase Bank, N.A.
ABA # XXXXXX
Account Name: H&R Block, Inc.
Account Number: XXXXXX
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # XXXXXX
Account Name: H&R Block, Inc.
Account Number: XXXXXX
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the sole judgment of the Placement
Agent, of the conditions set forth in Section 3.2(b) hereof. The Placement Agent shall have
no rights in or to any of the escrowed funds, unless the Placement Agent and the Escrow Agent are
notified in writing by the Company in connection with the Closing that a portion of the escrowed
funds shall be applied to the Placement Fee. The Company agrees 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”) arising under this
Section 3.3 or otherwise 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
Agreement 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.
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(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall confirm that the account or accounts at Lazard Capital Markets
LLC (“LCM”) to be credited with the Shares being purchased by the Investor have a minimum balance
equal to the aggregate purchase price for the Shares being purchased by the Investor.
3.4 Delivery of Shares.
(a) DWAC Delivery. If the Investor elects to settle the Shares purchased by such
Investor through DTC’s DWAC delivery system, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares being purchased by
such Investor are maintained, which broker/dealer shall be a DTC participant, to set up a DWAC
instructing its Transfer Agent to credit such account or accounts with the Shares. Such DWAC
instruction shall indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by the Placement Agent. Simultaneously with the delivery to the Company by
the Escrow Agent of the funds held in escrow pursuant to Section 3.3 above, the Company
shall direct its Transfer Agent to credit the Investor’s account or accounts with the Shares
pursuant to the information contained in the DWAC.
(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall notify LCM of the account or accounts at LCM to be credited
with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver
the Shares to the Investor through DTC directly to the account or accounts at LCM identified by
Investor and simultaneously therewith payment shall be made by LCM by wire transfer to the Company.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as
of the date hereof and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Shares set forth on the Signature Page, has received and is
relying solely upon the Disclosure Package and the documents incorporated by reference therein and
(ii) the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agent that would permit an offering of the Shares, or
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possession or distribution of offering materials in connection with the issue of the Shares in
any jurisdiction outside the United States where action for that purpose is required, (b) if the
Investor is outside the United States, it 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 and (c) the
Placement Agent is not authorized to make and has not made any representation, disclosure or use of
any information in connection with the issue, placement, purchase and sale of the Shares, except as
set forth in the Company’s public filings (which are available via XXXXX) or incorporated by
reference in the Base Prospectus or the Prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as 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) and except as to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Disclosure Package, the
Prospectus 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.
4.5 Since the date on which the Company or the Placement Agent first contacted such Investor
about the Offering, the Investor has not engaged in any transactions in the securities of the
Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s
securities). The Investor covenants that it will not engage in any transactions in the securities
of the Company (including Short Sales) prior to the time that the transactions contemplated by this
Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares
acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so
would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct and indirect stock
pledges, forward sales 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-US broker dealers or foreign
regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the
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Company and the Investor herein will survive the execution of this Agreement, the delivery to
the Investor of the Shares being purchased and the payment therefor. The Placement Agent and Lazard
Fréres & Co. shall be third party beneficiaries with respect to the representations, warranties and
agreements of the Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation of
receipt and will be delivered and addressed as follows:
(a) if to the Company, to:
H&R Block, Inc.
Xxx X&X Xxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, SVP & CFO
Facsimile: (000) 000-0000
Xxx X&X Xxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, SVP & CFO
Facsimile: (000) 000-0000
with copies to:
Husch Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement 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.
10. Governing Law. This Agreement 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.
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11. Counterparts. This Agreement may be executed in two 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. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt of
the Company’s counterpart to this Agreement, together with the Prospectus Supplement (or the filing
by the Company of an electronic version thereof with the Commission), shall constitute written
confirmation of the Company’s sale of Shares to such Investor.
13. Press Release. The Company and the Investor agree that the Company shall issue a press
release announcing the Offering prior to the opening of the financial markets in New York City on
the business day immediately after the date hereof.
14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.
Prior to accepting this Subscription Agreement, H&R Block, Inc. (the
“Company”) will file a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration statement and other
documents the Company has filed with the SEC for more complete information about the Company
and this offering. You may get these documents for free by visiting XXXXX on the SEC website
at xxx.xxx.xxx. Alternatively, the Company will arrange to send you the prospectus after filing if you
request it by calling toll-free 1-800-869-9220 ext. 4513.
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EXHIBIT A
H&R BLOCK, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in. You may
use a nominee name if appropriate: |
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2. The relationship between the Investor and the registered holder
listed in response to item 1 above: |
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3. The mailing address of the registered holder listed in response to
item 1 above: |
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4. The Social Security Number or Tax Identification Number of the
registered holder listed in the response to item 1 above: |
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5. Name of DTC Participant (broker-dealer at which the account or
accounts to be credited with the Shares are maintained): |
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6. DTC Participant Number: |
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7. Name of Account at DTC Participant being credited with the Shares: |
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8. Account Number at DTC Participant being credited with the Shares: |
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