FORM OF SUBSCRIPTION AGREEMENT
FORM
OF
0xx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxx 00,
Xxxxxxxx
Software Park,
Zhongke
2nd Road,
Nanshan
District, Shenzhen,
China,
518000
Gentlemen:
The
undersigned on behalf of its clients (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 and the delivery
instructions attached hereto as Annex II, (collectively, this
“Agreement”), is made
as of the date set forth below between Universal Travel Group, a Nevada
corporation (the “Company”), and the
Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to an
aggregate of 2,222,222 shares (each a “Share,” collectively the
“Shares”) of its common
stock, par value $0.001 per share (the “Common Stock”) for a purchase
price of $9.00 per Share (the “Purchase
Price”). The Shares are sometimes referred to herein as the
“Securities.”
3. The
offering and sale of the Securities (the “Offering”) are being made
pursuant to (1) an effective Registration Statement on Form S-3 (including the
Prospectus contained therein (the “Base Prospectus”), the “Registration Statement”)
filed by the Company with the Securities and Exchange Commission (the “Commission”), (2) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule
405 under the Securities Act of 1933, as amended (the “Act”)), that have or will be
filed with the Commission and delivered to the Investor on or prior to the date
hereof and (3) a Prospectus Supplement (the “Prospectus Supplement” and
together with the Base Prospectus, the “Prospectus”) 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 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 the placement agent (the “Placement Agent”) named in
the Prospectus Supplement and that there is no minimum offering
amount.
5. The
manner of settlement of the Shares purchased by the Investor shall be as
follows:
Delivery
versus payment (“DVP”)
through DTC (i.e., the Company’s Transfer Agent shall deliver Shares to
Investor’s account(s) as designated on Annex II attached
hereto versus the aggregate purchase price(s) set forth below) at the Closing.
6. [RESERVED]
7. The
Investor represents that it (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
Investor Questionnaire for use in preparation of the Prospectus Supplement 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 Annex I, has received
and is relying solely upon (i) the Disclosure Package and the documents
incorporated by reference therein and (ii) the Offering
Information.
8. The
Investor (a) acknowledges that 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 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) represents that 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 securities or has
in its possession or distributes any offering material, in all cases at its own
expense and (c) acknowledges that 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 or incorporated by reference in the Base Prospectus or the Prospectus
Supplement.
9. The
Investor represents that (a) the Investor is acting for and on behalf of its
clients pursuant to valid and effective powers of attorney, (b) the Investor has
full right, power, authority and capacity to enter into this Agreement on behalf
of its clients and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement, and (c) this Agreement constitutes a valid and binding
obligation enforceable against the Investor’s clients 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).
-2-
10. The
Investor acknowledges that nothing in this Agreement, 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.
11. The
Investor represents that since the date on which the Placement Agent first
contacted such Investor about the Offering, Investor has not engaged in any
purchases or sales of the securities of the Company (including, without
limitation, any Short Sales (as defined below) involving the Company’s
securities). The Investor covenants that it will not engage in any
purchases or sales of 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.
12. 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
FINRAmember 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:
None
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
-3-
13. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, the documents incorporated by reference therein
and any free writing prospectus (collectively, the “General Disclosure Package”),
prior to or in connection with the receipt of this Agreement. The
Investor acknowledges that, prior to the delivery of this Agreement to the
Company, the Investor will receive certain additional information regarding the
Offering, including pricing information (the “Offering Information”). Such
information may be provided to the Investor by any means permitted under the
Act, including in the Prospectus Supplement, a free writing prospectus or oral
communications.
14. The
Investor represents that 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, as of the date of this
Subscription Agreement, violated its obligations of confidentiality with respect
to the Offering since the time that the Investor was first contacted by the
Company or its agents with respect to the transactions contemplated
hereby.
15. The
Company represents and warrants to the Investor, that (i) the Company 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 (ii) this Agreement constitutes a valid and binding obligation of the
Company enforceable against the Company 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).
16. The
Company covenants that it will not, for a period of sixty (60) days from the
date hereof (the “Lock-Up
Period”) without the prior written consent of Xxxxx Xxxxxx, Carret &
Co., LLC (“BMC” or
“Placement Agent”), as
placement agent, directly or indirectly offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock,
other than the Company’s sale of the Shares hereunder and the issuance of
restricted Common Stock or options to acquire Common Stock pursuant to the
Company’s employee benefit plans, qualified stock option plans or other employee
compensation plans as such plans are in existence on the date hereof and
described in the Prospectus and the issuance of Common Stock pursuant to the
valid exercises of options, warrants or rights outstanding on the date
hereof. The Company will cause Xx. Xxxxxxxxx Xxxxx, the Company’s
Chief Executive Officer, to furnish to BMC, on or prior to the date hereof, a
letter pursuant to which she shall agree, among other things, not to directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of, or announce the intention to otherwise dispose of, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, not to engage in any swap, hedge or similar agreement or
arrangement that transfers, in whole or in part, directly or indirectly, the
economic risk of ownership of Common Stock or any such securities and not to
engage in any short selling of any Common Stock or any such securities, during
the Lock-Up Period, without the prior written consent of BMC. The
Company also agrees that during such period, other than for the sale of the
Shares hereunder, the Company will not file any registration statement,
preliminary prospectus or prospectus, or any amendment or supplement thereto,
under the Securities Act for any such transaction or which registers, or offers
for sale, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, except for a registration statement on Form S-8
relating to employee benefit plans.
-4-
17. All
covenants, agreements, representations and warranties made by the 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.
18. 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 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 BMC
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.
19. The
Company acknowledges that the only material, non-public information relating to
the Company or its subsidiaries that the Company, its employees or agents has
provided to the Investor in connection with the Offering prior to the date
hereof is the existence of the Offering and that neither the Company nor any
other person acting on its behalf has provided the Investor or any other
investor or its respective agents or counsel with any information that the
Company believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Press Release.
20. In
the event the Lock-Up Period is waived by BMC pursuant to Section 16 hereof, the
Company agrees that it will not issue or sell any Common Stock or other equity
or equity-linked securities (other than under existing equity incentive plans or
as a result of the exercise, exchange or conversion of outstanding Company
securities that are exercisable or exchangeable for, or convertible into Common
Stock) for sixty calendar days from the date of this Subscription Agreement at
less than the per share Purchase Price or equivalent.
21. The
Company and the Investor agree that the Company shall, (i) prior to the opening
of the financial markets in New York City on the business day immediately after
the date hereof issue a press release announcing the Offering and disclosing all
material information regarding the Offering (the “Press Release”) and (ii)
within the timeframe required, file a current report on Form 8-K with the
Securities and Exchange Commission including, but not limited to, a form of this
Agreement as an exhibit thereto (the “8-K”). From and
after the issuance of the Press Release and the 8-K, the Company shall have
publicly disclosed all material, non-public information delivered to the
Investor by the Company, if any, or any of its officers or directors in
connection with the transactions contemplated hereby. The Company
shall not identify any Investor by name in any press release or public filing,
or otherwise publicly disclose any Investor’s name, without such Investor’s
prior written consent, unless required by law or the rules and regulations of a
national securities exchange, provided, however, that promptly after becoming
aware of any request or requirement to so disclose (a “Disclosure Requirement”), and
in any event prior to any such disclosure, the Company will provide such
Investor with notice of such request or requirement so that such Investor may at
its election seek a protective order or other appropriate remedy and the Company
will fully cooperate with such Investor’s efforts to obtain the same; provided,
further, however, if, absent the entry of such a protective order or other
remedy, the Company is compelled by applicable law, rule or regulation or a
court order, subpoena, similar judicial process, regulatory agency or stock
exchange rule to disclose such Investor’s name, the Company may disclose only
that portion of such information that the Company is so compelled to disclose
and will use its reasonable best efforts to obtain assurance that confidential
treatment will be accorded to that portion of such information that is being
disclosed. As of the date hereof, the Company is not aware of any
Disclosure Requirement
-5-
22. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor. This Agreement will be governed
by the internal laws of the State of New York, without giving effect to the
principles of conflicts of law. This Subscription Agreement 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 signatures
may be delivered by facsimile or by e-mail delivery of a “.pdf” format data
file.
[Signature
page follows]
-6-
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: December 10, 2009
|
|
INVESTOR
By: __________________________
Name:
__________________________
Title: __________________________
|
Agreed
and Accepted
this
10th
day of December, 2009:
|
________________________________
|
|
By: __________________________
Name: __________________________
Title: __________________________
|
|
Address
for Notice of Purchaser:
|
|
|
|
Address
for Delivery of Securities
|
|
|
|
for
Purchaser (if different):
|
|
|
|
Email
Address of Purchaser
|
|
|
|
Fax
Number of Purchaser:
|
|
|
|
Subscription
Amount: $
|
|
|
|
Shares:
|
|
|
|
EIN
Number:
|
|
[PURCHASER
SIGNATURE PAGE TO
-7-
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF SHARES
OF
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 at
the purchase price set forth on the signature page of this
Agreement.
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 Xxxxx Xxxxxx, Carret
& Co., LLC (“BMC” or the “Placement Agent”) a fee in
respect of the sale of Shares to the Investor.
2.4 The
Company has entered into a Placement Agent Agreement, dated December 10, 2009
(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 The
completion of the purchase and sale of the Shares (the “Closing”) shall occur via
delivery versus payment through DTC at a 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, the Company shall cause the Transfer Agent to deliver to the
Investor the number of Shares set forth above as instructed on Annex II to the
Investor’s Subscription Agreement versus the aggregate purchase price for the
Shares being purchased by the Investor.
3.2 The
Company’s obligation to issue and sell the Shares to the Investor shall be
subject to: (a) the receipt by the Company of the purchase price for the Shares
being purchased hereunder as set forth above and (b) 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.
-8-
3.3 The
Investor’s obligation to purchase the Shares will be subject to the satisfaction
(or waiver by the Investor) of the following: (i) the delivery by the Company of
the Shares in accordance with the provisions of this Agreement, (ii) 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, (iii) the satisfaction of the conditions to the closing set forth in
the Placement Agreement. 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; provided, however, that the
right of the Investor to waive any of such condition to closing shall be
conditioned upon a duly authorized, executed and delivered and legally binding
and unconditional written commitment of the Investor, in form and substance
reasonably acceptable to the Placement Agent, (a) not to assert or pursue any
claim or seek any remedy against the Placement Agent related or in connection
with the failure by the Company to perform any such condition waived by the
Investor and (b) to hold harmless and indemnify the Placement Agent against any
loss, expense (including without limitation the reasonable fees and expenses of
its counsel), damages or other obligation incurred as a result of the assertion
or pursuit by the Investor of any claim or the seeking by the Investor of any
remedy in violation of clause (a) of this Section 3.3.
3.4 [Intentionally
Omitted]
3.5 No later than one (1) business day
after the execution of this Agreement by the Investor and the Company,
the Investor shall notify BMC of the account or accounts to be credited with the
Shares being purchased by such Investor. On the Closing Date, the
Company shall deliver the Shares to the Investor versus payment for the Shares
through DTC directly to the account or accounts identified by Investor on Annex
II to the Subscription Agreement.
4. 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:
-9-
if to the
Company, to:
0xx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxx 00,
Xxxxxxxx
Software Park,
Zhongke
2nd Road,
Nanshan
District, Shenzhen,
China,
518000
Attention:
Chief Financial Officer
with
copies to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx, Esq. & Xxxxxxxx Xxx, Esq.
if to the
Investor, to the address on the signature page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
5. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
6. 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.
7. 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.
8. 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.
9. 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).
10. 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.
11. Termination. In the
event that the Placement Agent 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.
-10-
ANNEX II
DELIVERY
INSTRUCTIONS FOR PURCHASE OF SHARES
OF
-11-
