SUBSCRIPTION AGREEMENT
EXHIBIT
10.42
Winner
Group Limited
Winner
Industrial Park, Bulong Road
Longhua,
Shenzhen City, 518109
People’s
Republic of China
Ladies
and Gentlemen:
The
undersigned subscriber (“Subscriber”)
hereby
tenders this Subscription Agreement (this “Agreement”)
in
accordance with and subject to the terms and conditions set forth
herein:
1.1 Subscriber
hereby subscribes for and agrees to purchase the number of Ordinary Shares
(the
“Shares”),
of
Winner Group Limited, a Cayman Islands corporation (the “Company”),
indicated on the signature page attached hereto at the purchase price set forth
on such signature page (the “Purchase
Price”).
Subscriber has made payment by wire transfer of funds in accordance with
instructions from the Company in the full amount of the Purchase Price of the
Shares for which Subscriber is subscribing (the “Payment”).
1.2 This
Agreement is part of an offering of Ordinary Shares being conducted by the
Company (the “Offering”).
Under
the terms of the Offering, the Company seeks to raise $10,400,000 (USD)
(proceeds from the Offering being referred to herein as the “Gross
Offering Proceeds”)
based
on an Offering price of $74.616 per
share, which represents 12.20% of the equity ownership in the Company.
Immediately following the closing of the Offering, such Shares shall be
exchanged for shares of the common stock (the “Public
Company Shares”)
of a US
domiciled company that is obligated to file periodic reports with the US
Securities and Exchange Commission and whose shares are eligible for quotation
on the NASD Over-the Counter Bulletin Board (the “Public
Company”)
upon
the closing of a stock exchange transaction (the “Exchange
Transaction”)
between
the Company and the Public Company. Upon consummation of the Exchange
Transaction and certain private placements occurring at the time of, or
immediately following, the Exchange Transaction (the “Concurrent
Placements”),
it is
anticipated that Subscribers in the Offering will own 11.55% of the issued
and
outstanding common stock of the Public Company.
1.3 The
Company agrees that neither it nor the Public Company shall undertake any other
financings (other than acquisitions utilizing capital stock of the Company
or
the Public Company, it being understood that the shares issuable in such
transaction shall not be registered until the Registration Statement is deemed
effective by the SEC) involving Equity Common Shares (as defined below) on
terms
more favorable than those in the Offering until thirty (30) days after the
effectiveness of the Registration Statement (as that term is defined below)
covering all of the Public Company Shares, without the prior written approval
of
the holders of a majority of the Public Company Shares. The Company and the
Public Company may complete a financing on terms that are equivalent or less
favorable than those in the Offering at their discretion; however, the Company
acknowledges that the Equity Common Shares sold in such an offering can not
be
registered for resale until after the date the Registration Statement is
declared effective by the SEC. The term “Equity Common
Shares”
as
used
herein shall mean all capital
stock of the Company or the Public Company, plus all rights, warrants, options,
convertible preferred shares, indebtedness, exchangeable securities or other
rights, exercisable for or convertible into, directly or indirectly, capital
stock of the Company or the Public Company. Notwithstanding the above, “Equity
Common Shares” shall not include any common shares of the Public Company issued
pursuant to any incentive or stock option plan of the Public Company approved
by
the shareholders or the board of directors of the Public Company. For the
avoidance of doubt, the Subscribers acknowledge and agree that immediately
after
the Exchange Transaction, the Public Company intends to effect the Concurrent
Placements in which the Public Company will raise $1,600,000 and issue 793,260
Public Company Shares and that such Public Company Shares are being included
in
the Registration Statement.
1.4 Subscriber
understands that it will not earn interest on any funds held by the Company.
The
funds and the Shares will be held in escrow pending the closing of the Offering.
Attached as Exhibit “A” hereto is the form of Escrow Agreement (the
“Escrow
Agreement”)
that
will govern the maintenance of funds and the Shares until the sooner of the
closing of the Offering or the expiration thereof. The Closing Date of the
Offering is referred to as the “Closing
Date.”
The
Closing shall occur on or before January 16, 2006. The Company shall have the
right to a one time 45 day extension of the Closing Date upon receipt of the
written consent of all Subscribers to the Offering . If the Offering is not
closed by said date all Gross Offering Proceeds then in escrow shall be returned
to the Subscriber and the certificates representing the Shares shall be
cancelled. The closing shall be deemed to have occurred upon the satisfaction
of
the following conditions and in the following sequence: (a) confirmation from
the Escrow Agent, as identified in the Escrow Agreement, that $10,400,000 is
on
deposit; (b) participation by each of the Subscribers to the Offering in the
Exchange Transaction; and (c) the Public Company files a registration statement
on a suitable form (the “Registration
Statement”)
with
the U.S. Securities and Exchange Commission to register the Public Company
Shares held by the Subscribers to the Offering and the Subscribers receive
an
opinion of counsel to the Company in form and substance reasonably satisfactory
to the Subscribers. Gross Offering Proceeds will not be released to either
the
Company or the Public Company until such time as each of the forgoing has been
completed. Certificates will be issued in the name of each such Subscriber,
and
the name of such Subscriber will be registered on the stock transfer books
of
the Public Company as the record owner of Public Company Shares. As of the
filing date of the Registration Statement, the Public Company will promptly
thereafter issue to each subscriber a stock certificate for the Public Company
Shares to which it is entitled.
1.5 Subscriber
hereby agrees to be bound hereby upon (i) execution and delivery to the Company
of the signature page to this Agreement and (ii) written acceptance on the
Closing Date by the Company of Subscriber’s subscription, which shall be
confirmed by faxing to the Subscriber the signature page to this Agreement
that
has been executed by the Company (the “Subscription”).
Subscriber
represents and warrants that it is in receipt of and that it has carefully
read
the following items:
(a) The
Company’s business plan, the form of which is attached hereto (the “Business
Plan”);
(b) The
audited consolidated financial statements of the Company and its
subsidiaries,
for the
fiscal years ended September 30, 2005 and 2004 (the “Financial
Statements”);
(c) The
Exchange Agreement;
(d) The
Escrow Agreement; and
(e) A
draft
of the Registration Statement.
The
documents listed in this Section 2 shall be referred to herein as the
“Disclosure
Documents.”
3.1 The
obligation of Subscriber to close the transaction contemplated by this Agreement
(the “Transaction”)
is
subject to the satisfaction on or prior to the Closing Date of the following
conditions set forth in Sections 3.2 through 3.8 hereof.
3.2 The
Company shall have executed this Agreement.
3.3 The
Board
of Directors of the Company shall have adopted resolutions consistent with
Section 4.1(d) below.
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3.4 Subscriber
shall have received copies of all documents and information which it may have
reasonably requested in connection with the Offering.
3.5 The
Exchange shall have been simultaneously consummated.
3.6 The
Registration Statement shall have been filed with the SEC and the Subscribers
shall have received an opinion of counsel to the Company in form and substance
reasonably satisfactory to the Subscribers. It being further acknowledged that
the effectiveness of the Registration Statement shall be maintained until the
earlier of the second anniversary of the declaration of its effectiveness by
the
SEC or the date all the shares of common stock registered therein have been
sold.
3.7 The
representations and warranties of the Company shall be true and correct on
and
as of the Closing Date as though made on and as of such date.
3.8 If
so
requested by Subscriber, the Company shall have delivered to the custodian
for
the Subscriber duly executed certificate(s), registered in the name of
Subscriber’s nominee, representing the Public Company Shares.
4.1 The
Company represents and warrants to Subscriber that, at the date of this
Agreement and as of the Closing Date:
(a) The
Company and each of its subsidiaries (other than Chongyang Wenqiang Medical
Treatment Materials Co., Ltd, which is being liquidated because its term has
expired) are corporations duly organized, validly existing and in good standing
under the laws of their jurisdiction of incorporation, with all requisite
corporate power and authority to carry on the business in which they are engaged
and to own the properties they own, and the Company has all requisite power
and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The Company and each of its subsidiaries
are
duly qualified and licensed to do business and are in good standing in all
jurisdictions where the nature of their business makes such qualification
necessary, except where the failure to be qualified or licensed would not have
a
material adverse effect on the business of the Company and its subsidiaries,
taken as a whole. The ownership of by the Company of its subsidiaries that
are
located in the People’s Republic of China complies with all applicable laws of
the People’s Republic of China.
(b) Except
as
otherwise described in the Disclosure Documents, there are no legal actions
or
administrative proceedings or investigations instituted, or to the best
knowledge of the Company threatened, against the Company or its subsidiaries,
that could reasonably be expected to have a material adverse effect on the
Company or any subsidiary, any of the Shares, or the business of the Company
and
its subsidiaries, or which concerns the transactions contemplated by this
Agreement.
(c) The
audited financial statements of the Company as of September 30, 2005 and 2004,
including the notes contained therein, fairly present the financial position
of
the Company at the respective dates thereof and the results of its operations
for the periods purported to be covered thereby. Such financial statements
have
been prepared in conformity with generally accepted accounting principles
consistently applied with prior periods subject to any comments and notes
contained therein. Since September 30, 2005, there has been no material adverse
change in the financial condition of the Company from the financial condition
stated in such financial statements.
(d) The
Company, by appropriate and required corporate action, has, or will have prior
to the date hereof, duly authorized the execution of this Agreement and duly
effected the issuance of the Shares. The Shares are not subject to preemptive
or
other rights of any stockholders of the Company and when issued in accordance
with the terms of this Agreement, the Shares will be validly issued, fully
paid
and non-assessable and free and clear of all pledges, liens and
encumbrances.
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(e) Performance
of this Agreement and compliance with the provisions hereof will not violate
any
provision of any applicable law or of the charter documents of the Company,
or
of any of its subsidiaries, and, will not conflict with or result in any breach
of any of the terms, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon,
any of the properties or assets of the Company, or of any of its subsidiaries,
pursuant to the terms of any indenture, mortgage, deed of trust or other
agreement or instrument binding upon the Company, or any of its subsidiaries,
other than such breaches, defaults or liens which would not have a material
adverse effect on the Company and its subsidiaries taken as a whole. The Company
is not in default under any provision of its organizational documents or under
any provision of any agreement or other instrument to which it is a party or
by
which it is bound or of any law, governmental order, rule or regulation so
as to
affect adversely in any material manner its business or assets or its condition,
financial or otherwise.
(f) The
Disclosure Documents, taken together, do not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein
to
make the statements contained therein not misleading.
(g) This
Agreement has been duly executed and delivered by the Company and constitutes
a
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms.
(h) No
registration, authorization, approval, qualification or consent of any court
or
governmental authority or agency is necessary in connection with the execution
and delivery of this Agreement or the offering, issuance or sale of the Shares
under this Agreement.
(i) The
Company is not now, and after the sale of the Shares under this Agreement and
under all other agreements and the application of the net proceeds from the
sale
of the Shares will not be, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(j) Subject
to the accuracy of the Subscribers’ representations and warranties in Section 7
of this Agreement, the offer, sale, and issuance of the Shares in conformity
with the terms of this Agreement constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as amended
(the “Securities Act”) and from the registration or qualification requirements
of the laws of any applicable state.
(k) Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales in any security
or
solicited any offers to buy any security under circumstances that would require
registration under the Securities Act of the issuance of the Shares to the
Subscriber.
(l) Immediately
following the Closing, but no later than 9:30am Eastern Time on the business
day
following the Closing Date, the Company shall issue a press release, in a form
suitable to the Subscribers, disclosing the material terms of the
Offering.
(m) The
Company agrees that all required documents related to the Offering will be
filed
as exhibits to the Current Report on form 8-K to be filed with the SEC by the
Public Company on the business day following the Closing Date.
(n) The
authorized capital of the Company consists of 360,000,000 Ordinary Shares of
HK$1.00 par value per share. A total of 1,000,000 Ordinary Shares are issued
and
outstanding as of the date hereof. Immediately after the Closing, there will
be
a total of 1,143,000 Ordinary Shares issued and outstanding.
4.2 The
Company shall indemnify and hold harmless the Subscribers from and against
all
fees, commissions or other payments owing by the Company to any other person
or
firm acting on behalf of the Company hereunder.
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5.1 Subscriber
acknowledges that it is acquiring the Shares for its own account and for the
purpose of investment and not with a view to any distribution or resale thereof
within the meaning of the Securities Act and any applicable state or other
securities laws (“State
Acts”).
Subscriber further agrees that, except in connection with the Exchange
Transaction, it will not sell, assign, transfer or otherwise dispose of any
of
the Shares in violation of the Securities Act or state blue sky laws and
acknowledges that, in taking unregistered Shares, it must continue to bear
economic risk in regard to its investment for an indefinite period of time
because of the fact that such securities have not been registered under the
Securities Act or state blue sky laws and further realizes that such securities
cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available. Subject to the foregoing, nothing
contained herein shall be deemed a representation or warranty by such Subscriber
to hold the Shares for any period of time.
5.2 The
Shares issued pursuant to this Agreement may not be transferred except in a
transaction which is in compliance with the Securities Act or pursuant to an
exemption therefrom.
6. Closing.
6.1 The
closing of the Offering shall take place at such time and at such place as
the
Company shall determine, provided that the Closing shall occur no later than
January 16, 2006, unless otherwise extended pursuant to the terms of this
Agreement. If the closing of the sale of Shares to Subscriber has not occurred
within the time frame provided in the previous sentence, then Subscriber may
terminate this Agreement by giving written notice to the Company.
7. Subscriber
Representations.
Subscriber hereby represents, warrants and acknowledges and agrees with the
Company as follows:
7.1 Subscriber
has been furnished with and has carefully read the Disclosure Documents as
set
forth in Section 2 hereto and is familiar with the terms of the Offering. With
respect to individual or partnership tax and other economic considerations
involved in this investment, Subscriber is not relying on the Company (or any
agent or representative of any of the Company). Subscriber has carefully
considered and has, to the extent Subscriber believes such discussion necessary,
discussed with Subscriber’s legal, tax, accounting and financial advisers the
suitability of an investment in the Shares for Subscriber’s particular tax and
financial situation.
7.2 Subscriber
has had an opportunity to inspect relevant documents relating to the
organization and operations of the Company. Subscriber acknowledges that all
documents, records and books pertaining to this investment which Subscriber
has
requested have been made available for inspection by Subscriber and Subscriber’s
attorney, accountant or other adviser(s).
7.3 Subscriber
and/or Subscriber’s advisor(s) has/have had a reasonable opportunity to ask
questions of and receive answers and to request additional relevant information
from a person or persons acting on behalf of the Company concerning the
Offering.
7.4 Subscriber
is not subscribing for the Shares as a result of or subsequent to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar.
7.5 Subscriber
is an “accredited investor,” within the meaning of Rule 501(a) of
Regulation D under the Securities Act (“Regulation
D”).
Subscriber, by reason of Subscriber’s business or financial experience or the
business or financial experience of Subscriber’s professional advisers who are
unaffiliated with and who are not compensated by the Company or any affiliate,
directly or indirectly, can be reasonably assumed to have the capacity to
protect Subscriber’s own interests in connection with the transaction.
Subscriber further acknowledges that he has read the written materials provided
by the Company.
7.6 Subscriber
has adequate means of providing for Subscriber’s current financial needs and
contingencies, is able to bear the substantial economic risks of an investment
in the Shares for an indefinite period of time, has no need for liquidity in
such investment and, at the present time, could afford a complete loss of such
investment.
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7.7 Subscriber
has such knowledge and experience in financial, tax and business matters so
as
to enable Subscriber to use the information made available to Subscriber in
connection with the Offering to evaluate the merits and risks of an investment
in the Shares and to make an informed investment decision with respect
thereto.
7.8 Subscriber
recognizes that investment in the Shares involves substantial risks. Subscriber
further recognizes that no Federal or state agencies have passed upon this
offering of the Shares or made any finding or determination as to the fairness
of this investment.
7.9 Subscriber
acknowledges that each certificate representing the Public Company Shares shall
contain a legend substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
“SECURITIES ACT”) OR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS
FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER DELIVERS TO THE COMPANY AN
OPINION OF COUNSEL (WHICH OPINION AND COUNSEL ARE REASONABLY SATISFACTORY TO
THE
COMPANY) CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
7.10 If
this
Agreement is executed and delivered on behalf of a partnership, corporation,
trust or estate: (i) such partnership, corporation, trust or estate has the
full
legal right and power and all authority and approval required (a) to execute
and
deliver, or authorize execution and delivery of, this Agreement and all other
instruments executed and delivered by or on behalf of such partnership,
corporation, trust or estate in connection with the purchase of the Shares,
(b)
to delegate authority pursuant to a power of attorney and (c) to purchase and
hold such Shares; (ii) the signature of the party signing on behalf of such
partnership, corporation, trust or estate is binding upon such partnership,
corporation, trust or estate; and (iii) such partnership, corporation or trust
has not been formed for the specific purpose of acquiring the Shares, unless
each beneficial owner of such entity is qualified as an “accredited investor”
within the meaning of Regulation D and has submitted information substantiating
such individual qualification.
7.11 If
Subscriber is a retirement plan or is investing on behalf of a retirement plan,
Subscriber acknowledges that investment in the Shares poses risks in addition
to
those associated with other investments, including the inability to use losses
generated by an investment in the Shares to offset taxable income.
7.12 The
Subscriber is not, nor is it acting as an agent, representative, intermediary
or
nominee for, a person identified on the list of blocked persons maintained
by
the Office of Foreign Assets Control, U.S. Department of Treasury. In addition,
the Subscriber has complied with all applicable U.S. laws, regulations,
directives, and executive orders relating to anti-money laundering , including
but not limited to the following laws: (1) the Sharing and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act
of 2001, Public Law 107-56; and (2) Executive Order 13224 (Blocking Property
and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism) of September 23, 2001. The Subscriber shall ensure that it obtains
a
representation similar to the foregoing from any transferee of the Shares of
the
Company’s Common Stock purchased by the Subscriber pursuant to this Agreement.
Further, this transaction and any resale of Shares by the Subscriber to
transferees shall not violate the statutes mentioned in this
representation.
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8. Understandings.
Subscriber
understands, acknowledges and agrees with the Company as follows:
8.1 Subscriber
hereby acknowledges and agrees that upon notice of acceptance from the Company
pursuant to Section 1.3, the Subscription hereunder is irrevocable by
Subscriber, that, except as required by law or as permitted under Section 6.1
above, Subscriber is not entitled to cancel, terminate or revoke this Agreement
or any agreements of Subscriber hereunder and that this Subscription Agreement
and such other agreements shall survive the death or disability of Subscriber
and shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors, legal
representatives and permitted assigns. If Subscriber is more than one person,
the obligations of Subscriber hereunder shall be joint and several and the
agreements, representations, warranties and acknowledgments herein contained
shall be deemed to be made by and be binding upon each such person and his
or
her heirs, executors, administrators, successors, legal representatives and
permitted assigns.
8.2 No
federal or state agency has made any findings or determination as to the
fairness of the terms of this Offering for investment, nor any recommendations
or endorsement of the Shares.
8.3 The
Offering is intended to be exempt from registration under the Securities Act
by
virtue of Section 4(2) of the Securities Act and the provisions of Rule 506
of
Regulation D thereunder, which is in part dependent upon the truth, completeness
and accuracy of the statements made by Subscriber herein.
8.4 It
is
understood that in order not to jeopardize the Offering’s exempt status under
Section 4(2) of the Securities Act and Regulation D, any transferee may, at
a
minimum, be required to fulfill the investor suitability requirements
thereunder.
8.5 No
person
or entity acting on behalf, or under the authority, of Subscriber is or will
be
entitled to any broker’s, finder’s or similar fee or commission in connection
with this Subscription. The Subscriber acknowledges and agrees, however, that
Global Hunter Securities, LLC is acting as the Placement Agent for this private
placement and will receive a cash fee that is equal to five percent (5%) of
the
total amount raised, such fee being payable by the Company.
8.6 Subscriber
acknowledges that the information furnished in this Agreement by the Company
to
Subscriber or its advisers in connection with the Offering, is confidential
and
nonpublic and agrees that all such written information which is material and
not
yet publicly disseminated by the Company shall be kept in confidence by
Subscriber and neither used by Subscriber for Subscriber’s personal benefit
(other than in connection with this Subscription), nor disclosed to any third
party, except Subscriber’s legal and other advisers who shall be advised of the
confidential nature of such information, for any reason; provided, however,
that
this obligation shall not apply to any such information that (i) is part of
the
public knowledge or literature and readily accessible at the date hereof, (ii)
becomes a part of the public knowledge or literature and readily accessible
by
publication (except as a result of a breach of this provision) or (iii) is
received from third parties (except third parties who, to the knowledge of
the
Subscriber, disclose such information in violation of any confidentiality
agreements or obligations, including, without limitation, any subscription
agreement entered into with the Company).
Following the filing of the Form 8-K pursuant to Section 4.1(m) herein, the
Subscriber will not be in possession of any non-public information with respect
to the Company.
8.7 The
representations, warranties and agreements of Subscriber and the Company
contained herein and in any other writing delivered in connection with the
Offering shall be true and correct in all material respects on and as of the
Closing Date of such Subscription as if made on and as of the date the Company
executes this Agreement and shall survive the execution and delivery of this
Agreement and the purchase of the Shares.
8.8 IN
MAKING
AN INVESTMENT DECISION, SUBSCRIBER MUST RELY ON ITS OWN EXAMINATION OF THE
COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED.
THE SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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9. Miscellaneous.
9.1 Except
as
set forth elsewhere herein, any notice or demand to be given or served in
connection herewith shall be deemed to be sufficiently given or served for
all
purposes by being sent as registered or certified mail, return receipt
requested, postage prepaid, in the case of the Company, addressed to it at
the
address set forth below:
|
Winner
Group Limited
Winner
Industrial Park, Bulong Road
Longhua,
Shenzhen City, 518109
People’s
Republic of China
|
and
in
the case of Subscriber to the address set forth on the Signature Page
hereto
9.2 This
Agreement shall be enforced, governed and construed in accordance with the
laws
of the State of New York without giving effect to choice of laws principles
or
conflict of laws provisions thereof.
9.3 The
parties hereby irrevocably consent and submit to the jurisdiction of the state
and federal courts located in the State of New York for all
purposes.
9.4 Subscriber
hereby waives, and agrees not to assert against the Company, or any successor
assignee thereof, by way of motion, as a defense, or otherwise, in any such
suit, action or proceeding, (i) any claim that the Subscriber is not personally
subject to the jurisdiction of the above-named courts, and (ii) to the extent
permitted by applicable law, any claim that such proceeding relating to the
enforcement of an award is in an inconvenient forum or that the venue of any
such proceeding is improper or that this Agreement may not be enforced or that
judgment may not be entered in any such courts.
9.5 In
any
action, proceeding or counterclaim brought to enforce any of the provisions
of
this Agreement or to recover damages, costs and expenses in connection with
any
breach of the Agreement, the prevailing party, as determined by the finder
of
fact, shall be entitled to be reimbursed by the opposing party for all of the
prevailing party’s reasonable outside attorneys’ fees, costs and other
out-of-pocket expenses incurred in connection with such action, proceeding
or
counterclaim.
9.6 This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. There are no restrictions, promises, warranties
or
undertakings, other than those set forth herein. The Company acknowledges that
all material facts upon which it has relied in forming its decision to enter
into this Agreement are expressly set forth herein and further acknowledges
that
the Subscriber has not made any representations, express or implied, which
are
not set expressly set forth herein. This Agreement supercedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
9.7 The
Company shall indemnify, defend and hold harmless Subscriber and each of its
agents, partners, members, officers, directors, representatives, or affiliates
(collectively, the “Subscriber
Indemnities”)
against any and all losses, liabilities, claims and expenses, including
reasonable attorneys’ fees (“Losses”),
sustained by Subscriber Indemnities resulting from, arising out of, or connected
with any material inaccuracy in, breach of, or nonfulfillment of any
representation, warranty, covenant or agreement made by or other obligation
of
the Company contained in this Agreement (including the Exhibits hereto) or
in
any document delivered in connection herewith.
9.8 Subscriber
shall indemnify, defend and hold harmless the Company and each of its agents,
partners, members, officers, directors, representatives, or affiliates
(collectively, the “Company
Indemnities”)
against any and all Losses sustained by the Company Indemnities resulting from,
arising out of, or connected with any material inaccuracy in, breach of, or
non-fulfillment of any representation, warranty, covenant or agreement made
by
or other obligation of Subscriber contained in this Agreement (including the
Exhibits hereto) or in any document delivered in connection
herewith.
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9.9 The
Company shall not issue any public statement or press release, or otherwise
disclose in any manner the identity of the Subscriber or that Subscriber has
purchased the Shares, without the prior written consent of the Subscriber,
except as may be required by applicable law; provided,
however,
that
the Company may disclose such information in the Registration Statement filed
with the SEC.
10. Signature.
The
signature page of this Agreement is contained as part of the applicable
Subscription Package, entitled “Signature Page.”
9
SUBSCRIPTION
AGREEMENT GENERAL INSTRUCTIONS
These
Subscription Documents contain all documents necessary to subscribe for Shares
(“Shares”),
of
Winner Group Limited, a Cayman Islands corporation (the “Company”).
You
may
subscribe for Shares by completing the Subscription Agreement in the following
manner:
1. On
line
(a) of the signature page state the number of Shares you wish to
purchase.
2. On
line
(b) of the signature page state the total cost of the Shares you wish to
purchase. To obtain the cost, multiply the number of Shares you desire to
purchase by the purchase price per Share set forth therein.
3. Sign
and
state your address, telephone number and social security or other taxpayer
identification number on the lines provided on the signature page to the
Subscription Agreement and deliver the completed Subscription Agreement with
payment of the entire purchase price of the Shares subscribed for as set forth
below. Payment should be made in United States Dollars by wire transfer
to:
|
Xxxxxx
Xxxx & Priest, LLP - Attorney Special Account
(Non-Interest
Bearing)
Account
# 00000000
ABA
#
000-000-000
SWIFT
CODE: Citi US33
Citibank,
N.A.
Citicorp
Center
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Client
Name: Winner Group
Attorney
Name: Xxxxx X. Xxxxxxxxxx,
Esq.
|
The
Subscription Agreement Signature Page must be completed and signed by each
investor. Send all documents to:
|
Xxxxxx
Xxxx & Priest LLP
000
Xxxxxx Xxxxxx, XX
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile
(000) 000-0000
|
THE
COMPLETED SUBSCRIPTION AGREEMENT SHOULD BE RETURNED IN ITS ENTIRETY TO THE
ESCROW AGENT DESIGNATED ABOVE.
All
questions as to the validity, form, eligibility (including time of receipt)
and
acceptance of the completed Subscription Agreement will be reasonably determined
by the Company. The Company reserves the absolute right to reject any completed
Subscription Agreement, in its sole and absolute discretion. The Company also
reserves the right to waive any irregularities in, or conditions of, the
submission of completed Subscription Agreements. The Company shall be under
no
duty to give any notification of irregularities in connection with any attempted
subscription for Shares or incur any liability for failure to give such
notification. Until such irregularities have been cured or waived, no
subscription for Shares shall be deemed to have been made. Any Subscription
Agreement that is not properly completed and as to which defects have not been
cured or waived will be returned by the Company to the Subscriber as soon as
practicable.
10
SUBSCRIPTION
AGREEMENT SIGNATURE PAGE
The
undersigned investor hereby certifies that he or she (i) has received and relied
solely upon information provided by the Company, (ii) agrees to all the terms
and conditions of this Subscription Agreement, (iii) meets the suitability
standards set forth in this Subscription Agreement and (iv) is a resident of
the
state indicated below.
| (a) |
The
undersigned subscribes for _______________
Shares.
|
| (b) |
The
total cost of the Shares subscribed for, at $74.616 per Share, is
$_______________ (the “Purchase
Price”).
|
|
Name
of Subscriber (Print)
|
If
other than Individual check one and indicate capacity of
signatory
under the signature:
o
Trust
o
Estate
o
Uniform Gifts to Minors Act of
State of ____________
o
Attorney-in-fact
o
Corporation
o
Other
_____________________________________
|
|
Name
of Joint Subscriber (if any) (Print)
Signature
of Subscriber
|
|
|
Signature
of Joint Subscriber (if any)
Capacity of Signatory (if applicable) |
If
Joint Ownership, check one:
o
Joint Tenants with Right of
Survivorship
o
Tenants in Common
o
Tenants by Entirety
o
Community
Property
|
|
Social
Security or Taxpayer Identification Number
Residence Address City State Zip Code Telephone
( ) _________________________________________
Telecopy
No. __________________________________________
|
Backup
Withholding Statement:
Please
check this box only if the investor is subject to:
o
backup withholding.
Foreign
Person:
Please
check this box only if the investor is a:
o
non-resident alien, foreign
corporation, foreign partnership,
foreign
trust or foreign estate.
|
The
investor agrees to the terms of this Subscription Agreement and, as required
by
the Regulations pursuant to the Internal Revenue Code, certifies under penalty
of perjury that (1) the Social Security Number or Taxpayer Identification Number
and address provided above is correct, (2) the investor is not subject to backup
withholding (unless the Backup Withholding Statement box is checked) either
because he has not been notified that he is subject to backup withholding as
a
result of a failure to report all interest or dividends or because the Internal
Revenue Service has notified him that he is no longer subject to backup
withholding and (3) the investor (unless the Foreign Person box above is
checked) is not a nonresident alien, foreign partnership, foreign trust or
foreign estate.
THE
SUBSCRIPTION FOR _______________ SHARES OF WINNER GROUP LIMITED BY THE ABOVE
NAMED SUBSCRIBER(S) IS ACCEPTED AS OF December 16, 2005.
|
WINNER
GROUP LIMITED
By:
______________________________________
Title:
_____________________________________
|