Print Name of Subscriber: Xxxx X. Xxxxxxxx
SUBSCRIPTION AGREEMENT
X.X. XXXXXXXX & CO., INC.
Newport Xxxxxx Xxxxx
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Gentlemen:
1. SUBSCRIPTION. I (sometimes referred to herein as the "Investor")
hereby subscibe for and agree to purchase 100,000 shares ("Shares") of common
stock, par value $ .01 per share ("Common Stock"), of X.X. XXXXXXXX & CO., INC.
("Company"), a New Jersey corporation, at a purchase price of $0.90 per Share on
the terms and conditions described herein. The total purchase price for the
Shares submitted herewith is $90,000.
2. PURCHASE. I hereby tender to the Company cash or a check made payable
to the order of X.X. XXXXXXXX & CO., INC. in the amount indicated above. I
hereby tender two manually executed copies of this Subscription Agreement and my
completed and executed Confidential Purchaser Questionnaire.
3. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. The Company has the right to
reject this subscription for the Shares, in whole or in part for any reason. In
the event of the rejection of this subscription, my subscription payment will be
promptly returned to me without interest or deduction and this Subscription
Agreement shall have no force or effect. If my subscription is accepted, my
subscription proceeds will be released to the Company and the certificates
representing the Shares for which I have subscribed will be sent to me.
4. CLOSING AND DELIVERY OF SHARES. The Company may close on these funds
at any time at its discretion and use such funds for any use connected with the
furtherance of the Company's business. The Shares subscribed for herein shall
not be deemed issued to or owned by me until two copies of this Subscription
Agreement have been executed by me and countersigned by the Company.
5. DISCLOSURE. This offering is limited to accredited investors as
defined in Section 2(15) of the Securities Act of 1933, as amended ("Securities
Act"), and Rule 501 promulgated thereunder, in reliance upon the exemption
contained in Sections 3(b), 4(2) or 4(6) of the Securities Act and applicable
state securities laws. Accordingly, the Shares are being sold without
registration under the Securities Act. I acknowledge receipt of the Company's
Annual Report on Form 10-K for the year ended January 31, 2002 and all Quarterly
Reports on Form 10-Q filed thereafter with the Securities and Exchange
Commission ("SEC") (collectively, "Documents") and represent that I have
carefully reviewed and understand the Documents and their respective exhibits. I
have received all information and materials regarding the Company that I have
requested.
I fully understand that the Shares are speculative investments that involve
a high degree of risk of loss of my entire investment. I fully understand the
nature of the risks involved in purchasing the Shares and I am qualified by my
knowledge and experience to evaluate investments of this type. I have carefully
considered the potential risks relating to the Company and purchase of its
Shares. Both my advisors, if any, and I have had the opportunity to ask
questions of and receive answers from representatives of the Company or persons
acting on its
behalf concerning the Company and the terms and conditions of a proposed
investment in the Company and my advisors, if any, and I have also had the
opportunity to obtain additional information necessary to verify the accuracy of
information furnished about the Company. Accordingly, I have independently
evaluated the risks of purchasing the Shares.
6. INVESTOR REPRESENTATIONS AND WARRANTIES. I acknowledge, represent and
warrant to, and agree with, the Company as follows:
(a) I am aware that my investment involves a high degree of risk, and
I have read and fully understand the Documents.
(b) I acknowledge and am aware that there is no assurance as to the
future performance of the Company.
(c) I am purchasing the Shares for my own account for investment and
not with a view to or for sale in connection with the distribution of the
Shares, nor with any present intention of selling or otherwise disposing of all
or any part of the Shares. I agree that: (i) the purchase of the Shares is a
long-term investment; and (ii) I may have to bear the economic risk of
investment for an indefinite period of time because the Shares have not been
registered under the Securities Act, the Shares may never by registered and
cannot be resold, pledged, assigned, or otherwise disposed of unless they are
subsequently registered under said Securities Act and under applicable
securities laws of certain states or an exemption from such registration under
the Securities Act or any state securities laws. I hereby authorize the Company
to place a legend denoting the restrictions on the Shares.
(d) I recognize that the Shares, as an investment, involve a high
degree of risk including, but not limited to, the risk of economic losses from
operations of the Company and the total loss of my investment. I believe that
the investment in the Shares is suitable for me based upon my investment
objectives and financial needs, and I have adequate means for providing for my
current financial needs and contingencies and have no need for liquidity with
respect to my investment in the Company.
(e) I have been given access to full and complete information
regarding the Company and have utilized such access to my satisfaction for the
purpose of obtaining additional information. Furthermore, I have either met with
or been given reasonable opportunity to meet with officers of the Company for
the purpose of asking questions of, and receiving answers from, such officers
concerning the terms and conditions of the offering of the Shares and the
business and operations of the Company and to obtain any additional information,
to the extent reasonably available.
(f) I have such knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of an investment
in the Shares and have obtained, in my judgment, sufficient information from the
Company to evaluate the merits and risks of an investment in the Company. I have
not utilized any person as my purchaser representative as defined in Regulation
D promulgated by the SEC pursuant to the Securities Act in connection with
evaluating such merits and risks.
(g) I have relied solely upon my own investigation in making a
decision to invest in the Company.
(h) I have received no representation or warranty from the Company or
any of its
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respective officers, directors, employees or agents in respect of my investment
in the Company and I have received no information (written or otherwise) from
them relating to the Company or its business other than as set forth in the
Documents. I am not purchasing the Shares as a result of or subsequent to: (i)
any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television, radio or the
Internet; or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising.
(i) I have had full opportunity to ask questions and to receive
satisfactory answers pertaining to my investment and all such questions have
been answered to my full satisfaction.
(j) I have been provided an opportunity to obtain any additional
information concerning the Company and all other information to the extent the
Company possesses such information or can acquire it without unreasonable effort
or expense.
(k) I am an "accredited investor" as defined in Section 2(15) of the
Securities Act and in Rule 501 promulgated thereunder.
(l) I understand that (i) the Shares have not been registered under
the Securities Act or the securities laws of certain states in reliance on
specific exemptions from registration; (ii) no securities administrator of any
state or the federal government has recommended or endorsed the Shares or made
any finding or determination relating to the fairness of an investment in the
Company; and (iii) the Company is relying on my representations and agreements
for the purpose of determining whether this transaction meets the requirements
of the exemptions afforded by the Securities Act and certain state securities
laws.
(m) I have been urged to seek independent advice from my professional
advisors relating to the suitability of an investment in the Company in view of
my overall financial needs and with respect to the legal and tax implications of
such investment.
(n) If the Investor is a corporation, company, trust, employee benefit
plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it
is authorized and qualified to become an investor in the Company and the person
signing this Subscription Agreement on behalf of such entity has been duly
authorized by such entity to do so.
(o) I hereby acknowledge and am aware that except for any rescission
rights that may be provided under applicable laws, I am not entitled to cancel,
terminate or revoke this subscription, and any agreements made in connection
herewith shall survive my death or disability.
7. INDEMNIFICATION. I hereby agree to indemnify and hold harmless the
Company, its respective officers, directors, stockholders, employees, agents and
attorneys against any and all losses, claims, demands, liabilities, and expenses
(including reasonable legal or other expenses, including reasonable attorneys'
fees and other expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever incurred by the indemnified party in any
action or proceeding between the indemnitor and indemnified party or between the
indemnified party and any third party or otherwise) incurred by each such person
in connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person, to which any such
indemnified party may become subject under the Securities Act, under any other
statute, at common law or otherwise, insofar as such losses, claims, demands,
liabilities and expenses (a) arise out of or are based upon any
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untrue statement or alleged untrue statement of a material fact made by me and
contained in this Subscription Agreement, or (b) arise out of or are based upon
any breach by me of any representation, warranty, or agreement made by me
contained herein.
8. MISCELLANEOUS.
8.1. SEVERABILITY; REMEDIES. If any part of this Subscription
Agreement is found to be void, the remaining provisions of this Subscription
Agreement shall nevertheless be binding with the same effect as though the void
parts were deleted.
8.2. COUNTERPARTS. This Subscription Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Subscription Agreement may be by actual or facsimile signature.
8.3. BENEFIT. This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and assigns.
8.4. GOVERNING LAW AND JURISDICTION. This Subscription Agreement will
be deemed to have been made and delivered in New Jersey and will be governed as
to validity, interpretation, construction, effect and in all other respects by
the internal laws of the State of New Jersey. The Company and the Investor each
hereby: (i) agrees that any legal suit, action or proceeding arising out of or
relating to this Subscription Agreement shall be instituted exclusively in the
arbitration program sponsored by the National Association of Securities Dealers,
Inc.; (ii) waives any objection to the venue of any such suit, action or
proceeding; and (iii) irrevocably consents to the jurisdiction of the National
Association of Securities Dealers, Inc. in any such suit, action or proceeding.
The Company further agrees to accept and acknowledge service or any and all
process that may be served in any such suit, action or proceeding in
arbitration.
8.5. NOTICES. All notices, offers, acceptance and any other acts
under this Subscription Agreement (except payment) shall be in writing, and
shall be sufficiently given if delivered to the addressees in person, by
overnight courier service, or, if mailed, postage prepaid, by certified mail,
(return receipt requested), and shall be effective five days after being placed
in the mail if mailed, or upon receipt or refusal of receipt, if delivered
personally or by courier, in each case addressed to a party. The addresses for
such communications shall be:
Investor: Xxxx X. Xxxxxxxx
000 Xxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
The Company: X.X. XXXXXXXX & CO., INC.
000 Xxxxxxxxxx Xxxxxxxxx, 00xx xxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
or to such other addresses as any of them, by notice to the others, may
designate from time to time in accordance with this Section 8.5.
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8.6. ORAL EVIDENCE. This Subscription Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior oral and written agreements between the parties hereto
with respect to the subject matter hereof. This Subscription Agreement may not
be changed, waived, discharged, or terminated orally but, rather, only by a
statement in writing signed by the party or parties against whom enforcement or
the change, waiver, discharge or termination is sought.
8.7. SECTION HEADINGS. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part, any of the terms or
provisions of this Subscription Agreement.
8.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements contained herein shall survive the
delivery of, and the payment for, the Shares.
8.9. ACCEPTANCE OR SUBSCRIPTION. The Company may accept this
Subscription Agreement at any time for all or any portion of the Shares
subscribed for by executing a copy hereof as provided.
[Remainder of page intentionally left blank]
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Manner in Which Title is to be Held (check one)
-----------------------------------
X Individual Ownership
------
Community Property
------
Joint Tenant with Right of Survivorship
------ (both parties must sign)
Partnership
------
Tenants in common
------
Corporation
------
Trust
------
Other (please indicate)
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INDIVIDUAL INVESTORS
/s/ Xxxx X. Xxxxxxxx
Signature (individual)
------------------------------------------
Signature (all record holders should sign)
Xxxx X. Xxxxxxxx
Name(s) Typed or Printed
Address to Which Correspondence
Should be Directed:
000 Xxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
City, State and Zip Code
------------------------------------------
Social Security Number
--------------------------------------------------------------------------------
The foregoing is accepted and the Company hereby agrees to be bound by its
terms.
X.X. XXXXXXXX & CO., INC.
Dated: February 18, 2003 By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Executive Vice President
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