Exhibit 99.1
FORM OF SUBSCRIPTION AGREEMENT
PLEASE CAREFULLY REVIEW THE INSTRUCTIONS
XXXXXX TECHNOLOGIES, INC. SUBSCRIPTION AGREEMENT
This Subscription Agreement represents a subscription to acquire the
number of shares of common stock of Xxxxxx Technologies, Inc. set forth below at
a subscription price of $___ per share for the total subscription price set
forth below. The registered owner named below is entitled to subscribe for full
shares of common stock pursuant to subscription rights granted to stockholders
upon the terms and conditions set forth in the related prospectus. For each
share of common stock subscribed for, the subscription price of $___ must be
forwarded to Xxxxxx Technologies, Inc.
THE SUBSCRIPTION RIGHTS EXPIRE AT 5:00 P.M. EASTERN TIME ON ___________,
2003. NO SUBSCRIPTION AGREEMENTS WILL BE ACCEPTED THEREAFTER.
Stockholder Name: ___________________________
Stockholder Address: ___________________________
Number of Shares of Xxxxxx Common Stock Owned by Stockholder on __________,
2003:
Number of Shares Subject To Basic Subscription Rights:
Section 1 -- SUBSCRIPTION AND SIGNATURE
I hereby irrevocably subscribe for the number of shares of Xxxxxx Common
Stock as indicated below, on the terms specified in the related Prospectus.
a. Subscription: ___________ Shares
b. Over-Subscription:
(no more than __________ less
the number subscribed for in (a)) ___________ Shares
c. Total Subscription (a + b): Shares ___________ Shares
d. Total Cost (c x $___ rounded up to
whole cents): $__________ Shares
Signature of Stockholder: ___________________ Telephone Number: (___)__________
Section 2 -- ADDRESS FOR DELIVERY OF STOCK CERTIFICATE IF DIFFERENT FROM ABOVE
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INSTRUCTIONS FOR USE OF SUBSCRIPTION AGREEMENT
Each stockholder of Xxxxxx Technologies, Inc. has the right to subscribe
for _________ shares of common stock for each full share of common stock of
Xxxxxx Technologies, Inc. (the "Rights") owned of record at the close of
business on __________, 2003 (the "Record Date"). The number of shares of common
stock you are entitled to subscribe for appears on the front of the Subscription
Agreement or can be calculated by multiplying the number of shares of common
stock owned of record on the Record Date by _________ [and rounding up to the
nearest whole number]. The Subscription Price of $___ is needed to subscribe for
each share of common stock. There is a minimum purchase requirement of 1,000
shares. See the prospectus for more detailed information. You may also subscribe
for shares of common stock pursuant to an Over-Subscription Privilege. To
exercise your Rights, you must complete the appropriate sections on the
Subscription Agreement. If you wish to exercise your Rights or the
Over-Subscription Privilege, you must do so by no later than 5:00 P.M. Eastern
Time on ___________, 2003. Rights may be exercised only through Xxxxxx
Technologies, Inc. As described below, Rights are not transferable.
TO EXERCISE YOUR RIGHTS-PLEASE COMPLETE AND RETURN
THE SUBSCRIPTION AGREEMENT
1. Complete "SECTION 1-SUBSCRIPTION AND SIGNATURE."
a. Basic Subscription Rights. Enter the number of shares you intend to
purchase under your Basic Subscription Rights. The maximum number of
shares you may purchase on Basic Subscription appears on the front
of the Subscription Agreement or can be calculated by multiplying
the number of shares of common stock owned of record on the Record
Date by _________ [and rounding up to the nearest whole number].
There is a minimum purchase requirement of 1,000 shares. Therefore,
if your Basic Subscription is for less than 1,000 shares, you may
still participate by exercising all of your Basic Subscription as
well as sufficient amount of your Over-Subscription Rights to
subscribe for at least the minimum 1,000 shares. Please note however
that a sufficient number of shares may not be available to satisfy
your Over-Subscription exercise or due to an Over-Subscription of
the offering we may be forced to proportionately reduce all
Over-Subscription exercises.
b. Over-Subscription. Enter the number of shares you desire to purchase
under your Over-Subscription Privilege. The Over-Subscription
Privilege is available only if you exercised all of your Basic
Subscription Rights. The maximum number of shares that you can
purchase on Over-Subscription is [___________ shares] less the
number of shares you purchased on Basic Subscription Rights. The
number of shares that will actually be purchased by you will be
subject to a pro rata allocation, based on the number of shares you
purchased through the Basic Subscription Privilege in proportion to
the total number of shares that you and other over-subscribing
stockholder purchased through the Basic Subscription Privilege, if
there are not enough shares remaining after the Basic Subscription
Rights to completely fill all requests for purchases on
Over-Subscription. However, if your pro rata allocation exceeds the
number of shares you requested in the Over-Subscription, then you
will receive only the number of shares that you requested, and the
remaining shares from your pro rata allocation will be divided among
other stockholders exercising their Over-Subscription Privileges.
When you send in your Subscription Agreement, you must also send the full
purchase price for the number of additional shares that you have requested to
purchase (in addition to the payment due for shares purchased through your Basic
Subscription Privilege). Xxxxxx has the discretion to issue less than the total
number of shares that may be available for Over-Subscription requests in order
to comply with state securities laws.
c. Total Subscription. Enter the total number of shares you want to
purchase in the offer. This number is the sum of the number of shares you are
purchasing on Basic Subscription Rights plus the number of shares you desire to
purchase on Over-Subscription.
d. Total Cost. Enter the total cost of your subscription. Your total cost
is the dollar number obtained when you multiply the number of shares shown under
Total Subscription by $____, the Subscription Price per share and rounding up to
the nearest whole cent.
2. Sign the Subscription Agreement in the space provide at the bottom of Section
1. Include your daytime telephone number in the space provided.
3. Enclose the executed Subscription Agreement, together with a certified check,
bank draft (cashier's check) drawn on a U.S. bank, or money order made payable
to "Xxxxxx Technologies, Inc." in the amount of the Total Cost (Item d. of
Section 1) [in the envelope provided]. If you use your own envelope, address it
to Xxxxxx Technologies,
Inc., 000 Xxxxxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000. You may also personally
deliver your Subscription Agreement and payment to Xxxxxx Technologies, Inc.,
000 Xxxxxxxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000.
4. Mail or deliver your executed Subscription Agreement and payment for the
Total Cost on a timely basis so that it is received by Xxxxxx Technologies, Inc.
by no later than 5:00 P.M. Eastern Time on _______________, 2003 (the
"Expiration Date"). If Xxxxxx Technologies, Inc. has not received your
Subscription Agreement and payment for the Total Cost by 5:00 p.m. Eastern Time
on the Expiration Date, you will not be entitled to purchase shares pursuant to
the Rights. Accordingly, if you are sending your executed Subscription Agreement
and payment by mail, please allow sufficient time for them to be received by
Xxxxxx Technologies, Inc. prior to 5:00 p.m. on the Expiration Date.
No Minimum Any or All Offering
The Rights Offering is being made on an any or all basis, which means that
Xxxxxx Technologies, Inc. may accept any subscription received even if all
_____________ shares of common stock offered are not subscribed for in the
Rights Offering.
No Recommendation
Xxxxxx Technologies, Inc. is not making any recommendation as to whether
or not you should exercise your Rights. You should make your decision based on
your own assessment of your best interests.
Cancellation Right
The Board of Directors of Xxxxxx Technologies, Inc. may cancel the rights
offering in its sole discretion at any time prior to or on the Expiration Date
for any reason (including a change in the market price of the common stock). If
Xxxxxx Technologies, Inc. cancels the Rights offering, any funds you paid will
be refunded to you, without interest.
Non-transferability of Subscription Rights
Except in the limited circumstance described below, only you may exercise
the Basic Subscription Privilege and the Over-Subscription Privilege. You may
not sell, give away or otherwise transfer the Basic Subscription Privilege or
the Over-Subscription Privilege.
Notwithstanding the foregoing, your Rights may be transferred by operation
of law or through involuntary transfers. For example, a transfer of rights to
the estate of the recipient upon the death of the recipient would be permitted.
If the Rights are transferred as permitted, evidence satisfactory to us that the
transfer was proper must be received by us prior to the expiration date of the
rights offering.
Shares Held for Others
If you are a broker, a trustee or a depository for securities, or you
otherwise hold shares of common stock for the account of others as a nominee
holder, you should notify the beneficial owner of such shares as soon as
possible to obtain instructions with respect to their subscription rights, as
set forth in the instructions we have provided to you for your distribution to
beneficial owners. If the beneficial owner so instructs, you should complete the
Subscription Agreement and submit it to us with the proper payment.
If you are a beneficial owner of common stock held by a nominee holder,
such as a broker, trustee or a depository for securities, we will ask your
broker, dealer or other nominee to notify you of this rights offering. If you
wish to purchase shares through this rights offering, you should contact the
holder and ask him or her to effect transactions in accordance with your
instructions.
Ambiguities in Exercise of Subscription Rights
If you do not specify the number of shares of common stock being
subscribed for in your Subscription Agreement, or if your payment is not
sufficient to pay the total purchase price for all of the shares that you
indicated you wished to purchase, you will be deemed to have subscribed for the
maximum number of shares of common
stock that could be subscribed for with the payment received from you. If your
payment exceeds the total purchase price for all of the shares of common stock
shown in your subscription agreement, your payment will be applied, until
depleted, to subscribe for shares of common stock in the following order:
(1) to subscribe for the number of shares, if any, that you
indicated on the subscription certificate that you wished to
purchase through your Basic Subscription Privilege;
(2) to subscribe for shares of common stock until your Basic
Subscription Privilege has been fully exercised;
(3) to subscribe for additional shares of common stock pursuant to
the Over-Subscription Privilege (subject to any applicable
proration). Any excess payment remaining after the foregoing
allocation will be returned to you as soon as practicable by
mail, without interest or deduction.
Regulatory Limitation
Xxxxxx Technologies, Inc. will not issue shares of common stock in the
rights offering to residents in states whose securities laws prohibits such
sales who do not meet the suitability requirements described in the Prospectus.
State securities laws require an offering to be registered or exempt in each
state where the offering is made. Xxxxxx Technologies, Inc. believes it has
complied with the registration or exemption requirements in all states where it
knows stockholders reside [except for ________]. If you are resident in another
jurisdiction, Xxxxxx Technologies, Inc. will not be required to issue common
stock to you pursuant to the rights offering if it is advised by counsel that
the cost of compliance with the local securities laws will substantially exceed
your subscription amount.
Xxxxxx Technologies, Inc.'s Decision Binding
All questions concerning the timeliness, validity, form and eligibility of
any exercise of subscription will be determined by Xxxxxx Technologies, Inc.,
and its determinations will be final and binding. In its sole discretion, Xxxxxx
Technologies, Inc. may waive any defect or irregularity, or permit a defect or
irregularity to be corrected within such time as it may determine, or reject the
purported exercise of any subscription right by reason of any defect or
irregularity in such exercise. Subscriptions will not be deemed to have been
received or accepted until all irregularities have been waived or cured within
such time as Xxxxxx Technologies, Inc. determines in its sole discretion. Xxxxxx
Technologies, Inc. will not be under any duty to notify you of any defect or
irregularity in connection with the submission of a subscription agreement or
incur any liability for failure to give such notification.
No Revocation
Once you have exercised your basic subscription privilege or
over-subscription privilege, YOU MAY NOT REVOKE THAT EXERCISE EVEN IF THE
SUBSCRIPTION PERIOD HAS NOT YET ENDED. You should not exercise your subscription
rights unless you are certain that you wish to purchase additional shares of
common stock at the subscription price of $____ per share.
Shares of Common Stock Outstanding after the Rights Offering
Assuming Xxxxxx Technologies, Inc. issues all of the shares of common
stock offered in the rights offering, approximately __________ shares of common
stock will be issued and outstanding. This would represent an approximate ___%
increase in the number of outstanding shares of common stock. IF YOU DO NOT
FULLY EXERCISE YOUR BASIC SUBSCRIPTION PRIVILEGE BUT OTHERS DO, THE PERCENTAGE
OF COMMON STOCK THAT YOU HOLD WILL DECREASE.
Fees and Expenses
You are responsible for paying commissions, fees, taxes or other expenses
incurred in connection with the exercise of the subscription rights. Xxxxxx
Technologies, Inc. will not pay these expenses.
Rejection Right
Xxxxxx Technologies, Inc. reserves the right to reject any Subscription
Agreement and payment not properly submitted. Xxxxxx Technologies, Inc. has no
duty to give notification of defects in any Subscription Agreement or payment
and will have no liability for failure to give such notification. Xxxxxx
Technologies, Inc. will return any Subscription Agreement or payment not
properly submitted.
STOCKHOLDERS SHOULD CAREFULLY REVIEW THE RELATED PROSPECTUS PRIOR TO
MAKING AN INVESTMENT DECISION WITH RESPECT TO THE RIGHTS REFERRED TO IN THIS
SUBSCRIPTION AGREEMENT.
Governing Law. This Subscription Agreement is governed by the laws of the
State of New York.
