Exhibit 10.1
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made as of the 20th
day of July, 2006, by and between XXXXXXXX XXXXXXX ACQUISITION CORPORATION, a
Delaware corporation (the "Company"), and XXXXX X. XXXXXXX ("Purchaser").
WHEREAS, the Company desires to issue, and Purchaser desires to
acquire, stock of the Company as herein described, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. PURCHASE AND SALE OF STOCK. Purchaser hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to Purchaser, an aggregate of
three million, nine hundred thirty-nine thousand, six hundred eighty-eight
(4,162,188) shares of the Common Stock of the Company (the "Stock") at $0.000445
per share, for an aggregate purchase price of $1,852.17. The closing hereunder,
including payment for and delivery of the Stock, shall occur at the offices of
the Company immediately following the execution of this Agreement, or at such
other time and place as the parties may mutually agree.
2. LIMITATIONS ON TRANSFER. Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Stock except in
compliance with applicable securities laws.
3. RESTRICTIVE LEGENDS. All certificates representing the Stock shall
have endorsed thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements between the
parties hereto):
(a) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO TRANSFER, SALE OR
OTHER DISPOSITION OF THESE SHARES MAY BE MADE UNLESS A REGISTRATION STATEMENT
WITH RESPECT TO THESE SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
(b) Any legend required by appropriate blue sky officials.
4. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Stock, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Stock. Purchaser is
purchasing the Stock for investment for Purchaser's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Act").
(b) Purchaser understands that the Stock has not been registered
under the Act by reason of a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of Purchaser's investment
intent as expressed herein.
(c) Purchaser further acknowledges and understands that the Stock
must be held indefinitely unless the Stock is subsequently registered under the
Act or an exemption from such registration is available. Purchaser understands
that the certificate evidencing the Stock will be imprinted with a legend which
prohibits the transfer of the Stock unless the Stock is registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rule 144, under the
Act, as in effect from time to time, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions. Unless the Company registers
the stock under the Act, the Stock may be resold by Purchaser only in certain
limited circumstances subject to the provisions of Rule 144, which requires,
among other things: (i) the availability of certain public information about the
Company and (ii) the resale occurring following the required holding period
under Rule 144 after the Purchaser has purchased, and made full payment of
(within the meaning of Rule 144), the securities to be sold.
(e) Purchaser further understands that, at the time Purchaser wishes
to sell the Stock, there may be no public market upon which to make such a sale,
and that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, Purchaser would be precluded from selling the Stock under Rule 144
even if the minimum holding period requirement had been satisfied.
Notwithstanding Sections 4(d) and (e) hereof, Purchaser understands that he may
be considered a promoter of the Company and understands that it is the position
of the Securities and Exchange Commission ("SEC") that promoters or affiliates
of a blank check company and their transferees, both before and after a business
combination, would act as an "underwriter" under the Securities Act of 1933 when
reselling the securities of a blank check company. Accordingly, the SEC believes
that those securities can be resold only through a registered offering and that
Rule 144 would not be available for those resale transactions despite technical
compliance with the requirements of Rule 144.
(f) Purchaser represents that Purchaser is an "accredited investor"
as that term is defined in Rule 501 of Regulation D promulgated by the
Securities and Exchange Commission under the Act.
5. NO EMPLOYMENT RIGHTS. This Agreement is not an employment contract
and nothing in this Agreement shall affect in any manner whatsoever the right or
power of the Company (or a parent or subsidiary of the Company) to terminate
Purchaser's employment or other relationship with the company for any reason at
any time, with or without cause and with or without notice.
-2-
6. MISCELLANEOUS.
(a) NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, and if not sent during normal business
hours of the recipient, then on the next business day, (iii) five (5) calendar
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one (1) business day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the other
party hereto at such party's address hereinafter set forth on the signature page
hereof, or at such other address as such party may designate by ten (10) days
advance written notice to the other party hereto.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer herein set forth, be binding upon Purchaser,
Purchaser's successors, and assigns.
(c) ATTORNEYS' FEES; SPECIFIC PERFORMANCE. Purchaser shall reimburse
the Company for all costs incurred by the Company in enforcing the performance
by Purchaser of, or protecting the Company's rights under, any part of this
Agreement, including reasonable costs of investigation and attorneys' fees.
(d) GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of law thereof. The parties agree that any action brought by either
party to interpret or enforce any provision of this Agreement shall be brought
in, and each party agrees to, and does hereby, submit to the jurisdiction and
venue of, the appropriate state or federal court for the district encompassing
the Company's principal place of business.
(e) FURTHER EXECUTION. The parties agree to take all such further
action(s) as may be reasonably necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary to
obtain any governmental approval in connection with, or otherwise qualify the
issuance of the securities that are the subject of, this Agreement.
(f) INDEPENDENT COUNSEL. Purchaser acknowledges that this Agreement
has been prepared on behalf of the Company by Xxxxxxx XxXxxxxxx LLP, counsel to
the Company and that Xxxxxxx XxXxxxxxx LLP does not represent, and is not acting
on behalf of, Purchaser. Purchaser has been provided with an opportunity to
consult with Purchaser's own counsel with respect to this Agreement.
(g) ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes and merges all prior agreements or understandings, whether
written or oral. This Agreement may not be amended, modified or revoked, in
whole or in part, except by an agreement in writing signed by each of the
parties hereto.
(h) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith.
-3-
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
By: /s/ Xxxxx X. XxXxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
PURCHASER:
/s/ Xxxxx X. XxXxxxx
--------------------------------------------
Name: Xxxxx X. XxXxxxx
Address:
-5-
