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Xxxxxx Financial Corp.
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This offering consists of $220,000 of the Company's 5 Year Convertible
Debentures convertible into the
Company's Common Stock.
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SUBSCRIPTION AGREEMENT
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SUBSCRIPTION PROCEDURES
Convertible Debentures of Xxxxxx Financial Corp. (the "Company") are being
offered (the "Debentures"). This offering is being made in accordance with the
exemptions from registration provided for under Section 4(2) of the Securities
Act of 1933, as amended (the "1933 Act") and Rule 506 of Regulation D
promulgated under the 1933 Act.
In order to purchase Debentures, each subscriber must complete and execute
a questionnaire (the "Questionnaire") and a subscription agreement (the
"Subscription Agreement"). In addition, the subscriber must make a payment
pursuant to the Funds Authorization Distribution Agreement, for the amount being
purchased or directly by the Holder. All subscriptions are subject to acceptance
by the Company, which shall not occur until the Company has returned the signed
Company Signature Page.
The Questionnaire is designed to enable the Holder to demonstrate the
minimum legal requirements under federal and state securities laws to purchase
the Debentures. The Signature Page for the Questionnaire and the Subscription
Agreement contain representations relating to the subscription and should be
reviewed carefully by each subscriber.
If you are a foreign person or foreign entity, you may be subject to a
withholding tax equal to thirty percent (30%) of any dividends paid by the
Company. In order to eliminate or reduce such withholding tax you must submit a
properly executed I.R.S. Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the United
States) or I.R.S. Form 1001 (Ownership Exemption or Reduced Trade Certificate),
claiming exemption from withholding or eligibility for treaty benefits in the
form of a lower rate of withholding tax on interest or dividends.
Payment of the full subscription amount will be made by wire transfer by
Dutchess Private Equities Fund, II, LP (the "Holder") on or prior to the closing
per the wire instructions that will be established. In the event of a
termination of the offering or the rejection of a subscription, subscription
funds will be returned by the Company without interest or charges.
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THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND ARE BEING OFFERED AND SOLD
IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS. THE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SUCH LAWS PURSUANT TO
REGISTRATION OR AN EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER REGULATORY
AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE
MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE OFFERING MATERIALS.
ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
SUBSCRIPTION AGREEMENT
To: Xxxxxx Financial Corp.
This Subscription Agreement is made between Xxxxxx Financial Corp., a
Delaware corporation, (the "Company"), and the undersigned prospective Holder
("Holder") who is subscribing hereby for the Company's convertible debentures
(the "Debentures") on December 23, 2005. This subscription is submitted to you
in accordance with and subject to the terms and conditions described in this
Subscription Agreement, together with any Exhibits thereto, relating to an
offering (the "Offering") of Two Hundred and Twenty Thousand dollars ($220,000)
of Debentures. The Offering is limited to accredited Investors and is made in
accordance with the exemptions from registration provided for under Section 4(2)
of the 1933 Act and Rule 506 of Regulation D promulgated under the 1933 Act
("Regulation D").
Whereas, contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Debenture
Registration Rights Agreement, the Debenture Agreement, the Irrevocable Transfer
Agent Agreement between the Company and Dutchess Capital Management, LLC,
Security Agreement and Warrant Agreement (collectively, the "Transaction
Documents").
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1. SUBSCRIPTION.
(a) The closing shall be deemed to have occurred on the date in the
preamble of this document (the "Closing Date" or a "Closing"). The Company shall
pay twelve percent (12%) annual coupon on the unpaid principal amount of this
Debenture (the "Debenture") at such times and in such amounts as outlined in the
Debenture Agreement.
(b) Upon receipt by the Company of the requisite payment for the
Debentures being purchased, the Debentures so purchased will be forwarded by the
Company to the Holder or its broker, as listed on the signature page, and the
name of such Holder will be registered on the Debenture transfer books of the
Company as the record owner of such Debentures.
(c) As long as the Holder owns the Debenture, the Holder shall have
the right to change the terms for the balance of the Debenture it then holds, to
match the terms of any other offering of securities made by the Company.
(d) The Holders shall fund ninety-five thousand dollars ($95,000)
upon the initial closing and an additional one hundred twenty-five thousand
dollars ($125,000) simultaneously on the date the registration statement
covering this Offering is filed with the United States Securities and Exchange
Commission ("SEC").
2. REPRESENTATIONS AND WARRANTIES OF THE HOLDER.
The Holder hereby represents and warrants to, and agrees with, the Company
as follows:
(a) The Holder has been furnished with, and has carefully read
the applicable form of Debenture Registration Rights Agreement, and
the Debenture and is familiar with and understands the terms of the
Offering. With respect to tax and other economic considerations
involved in his investment, the Holder is not relying on the
Company. The Holder has carefully considered and has, to the extent
the Holder believes such discussion necessary, discussed with the
Holder 's professional legal, tax, accounting and financial advisors
the suitability of an investment in the Company, by purchasing the
Debentures, for the Holder 's particular tax and financial situation
and has determined that the investment being made by the Holder is a
suitable investment for the Holder.
(b) The Holder acknowledges that all documents, records, and
books pertaining to this investment which the Holder has requested
have been made available for inspection or the Holder has had access
thereto.
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(c) The Holder has had a reasonable opportunity to ask
questions of and receive answers from a person or persons acting on
behalf of the Company concerning the Offering and if such
opportunity was taken then all such questions have been answered to
the full satisfaction of the Holder.
(d) The Holder will not sell, or otherwise dispose of the
Debentures or the Common Stock issued upon conversion of the
Debentures without registration under the 1933 Act or applicable
state securities laws or compliance with an exemption therefrom
including but not limited to: Rule 144A, 144 (k) (herein after
referred to as an "Exemption"). The Debentures have not been
registered under the 1933 Act or under the securities laws of any
state. Resales of the Common Stock underlying the Debentures or
issued in payment of accrued interest on the Debentures are to be
registered by the Company pursuant to the terms of the Debenture
Registration Rights Agreement incorporated herein and made a part
hereof.
(e) The Holder recognizes that an investment in the Debentures
involves substantial risks, including loss of the entire amount of
such investment. Further, the Holder has carefully read and
considered the schedules attached hereto.
(f) The Holder acknowledges that each certificate representing
the Debentures (and the shares of Common Stock issued upon
conversion of the Debentures, unless registered or with an
Exemption) or in payment of interest on the Debentures shall be
stamped or otherwise imprinted with a legend substantially in the
following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH
ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) PURSUANT TO
AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
If Holder sends a Notice of Conversion (See Exhibit A attached hereto),
and provided a registration statement under the Securities Act of 1933 is in
effect as to the sale, then in such event the Company shall have its transfer
agent send Holder the appropriate number of shares of Common Stock without
restrictive legends (other than a legend referring to the resale registration
and prospectus delivery requirements) and the Company is not subject to stop
transfer instructions.
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(g) If this Subscription Agreement is executed and delivered
on behalf of a corporation or legal entity other than a natural
person: (i) such corporation or other entity 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
Subscription Agreement and all other instruments (including, without
limitation, the Debenture Registration Rights Agreement, Irrevocable
Transfer Agent Agreement, Security Agreement, Warrant Agreement and
Debenture Agreements) executed and delivered by or on behalf of such
corporation in connection with the purchase of the Debentures and
(b) to purchase and hold the Debentures; and (ii) the signature of
the party signing on behalf of such corporation or entity is binding
upon such corporation.
(h) The Holder is not subscribing for the Debentures as a
result of, or pursuant 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 or meeting.
(i) The Holder is purchasing the Debentures for its own
account for investment, and not with a view toward the resale or
distribution thereof, except pursuant to sales registered or
exempted from registration under the 1933 Act. The Holder has not
offered or sold any portion of the Debentures being acquired nor
does the Holder have any present intention of dividing the
Debentures with others or of selling, distributing or otherwise
disposing of any portion of the Debentures either currently or after
the passage of a fixed or determinable period of time or upon the
occurrence or non-occurrence of any predetermined event or
circumstance in violation of the 1933 Act provided, however, that by
making the representations herein, Holder does not agree to hold any
of the Debentures for any minimum or other specific term and
reserves the right to dispose of the Debentures at any time in
accordance with or pursuant to a registration statement or an
exemption under the 1933 Act. Holder is neither an underwriter of,
nor a dealer in, the Debentures or the Common Stock issuable upon
conversion thereof or upon the payment of interest thereon and is
not participating in the distribution or resale of the Debentures or
the Common Stock issuable upon conversion or exercise thereof.
(j) The Holder or the Holder's representatives, as the case
may be, has such knowledge and experience in financial, tax and
business matters so as to enable the Holder to utilize the
information made available to the Holder in connection with the
Offering to evaluate the merits and risks of an investment in the
Debentures and to make an informed investment decision with respect
thereto.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the Schedules attached hereto, the Company
represents and warrants to the Holder that:
a. Organization and Qualification. The Company and its "SUBSIDIARIES"
(which for purposes of this Subscription Agreement means any entity in which the
Company, directly or indirectly, owns capital stock or holds an equity or
similar interest) (a complete list of which is set forth in Schedule 3(a)) are
corporations duly organized and validly existing in good standing under the laws
of the respective jurisdictions of their incorporation, and have the requisite
corporate power and authorization to own their properties and to carry on their
business as now being conducted. Both the Company and its Subsidiaries are duly
qualified to do business and are in good standing in every jurisdiction in which
their ownership of property or the nature of the business conducted by them
makes such qualification necessary, except to the extent that the failure to be
so qualified or be in good standing would not have a Material Adverse Effect. As
used in this Subscription Agreement, "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, properties, assets, operations, results
of operations, financial condition or prospects of the Company and its
Subsidiaries, if any, taken as a whole, or on the transactions contemplated
hereby or by the agreements and instruments to be entered into in connection
herewith, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents (as defined in Section 3(b)below).
b. Authorization; Enforcement; Compliance with Other Instruments. (i) The
Company has the requisite corporate power and authority to enter into and
perform this Subscription Agreement, the Debenture Registration Rights
Agreement, Warrant Agreement, Security Agreement, and the Irrevocable Transfer
Agent Instructions among the Company, the Holder, Transfer Agent, and Dutchess
Capital Management, LLC and the Debenture Agreement, and each of the other
agreements entered into by the parties hereto in connection with the
transactions contemplated by this Subscription Agreement (collectively, the
"TRANSACTION DOCUMENTS"), and to issue the Debentures in accordance with the
terms hereof and thereof, (ii) the execution and delivery of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including without limitation the reservation
for issuance and the issuance of the Debentures pursuant to this Subscription
Agreement, have been duly and validly authorized by the Company's Board of
Directors and no further consent or authorization is required by the Company,
its Board of Directors, or its shareholders, (iii) the Transaction Documents
have been duly and validly executed and delivered by the Company, and (iv) the
Transaction Documents constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
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c. Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of 100,000,000 shares of Common Stock, of which as of the
date hereof, approximately 13,837,220 shares are issued and outstanding. All of
such outstanding shares have been, or upon issuance will be, validly issued and
are fully paid and nonassessable. Except as disclosed in Schedule 3(c) which is
attached hereto and made a part hereof, (i) no shares of the Company's capital
stock are subject to preemptive rights or any other similar rights or any liens
or encumbrances suffered or permitted by the Company, (ii) there are no
outstanding debt securities, (iii) there are no outstanding shares of capital
stock, options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional shares of
capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, (iv) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to
register the sale of any of their securities under the 1933 Act (except the
Debenture Registration Rights Agreement), (v) there are no outstanding
securities of the Company or any of its Subsidiaries which contain any
redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to redeem a security of the Company or any of its
Subsidiaries, (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Securities as described in this Subscription Agreement, (vii) the Company
does not have any stock appreciation rights or "phantom stock" plans or
agreements or any similar plan or agreement and (viii) there is no dispute as to
the class of any shares of the Company's capital stock. The Company has
furnished to the Holder, or the Holder has had access through XXXXX to, true and
correct copies of the Company's Articles of Incorporation, as in effect on the
date hereof (the "ARTICLES OF INCORPORATION"), and the Company's By-laws, as in
effect on the date hereof (the "BY-LAWS `).
d. Issuance of Debentures. A sufficient number of Debentures issuable
pursuant to this Subscription Agreement, but not more than 4.99% of the shares
of Common Stock outstanding as of the date hereof (if the Company becomes listed
on Nasdaq or the American Stock Exchange), has been duly authorized and reserved
for issuance pursuant to this Subscription Agreement. Upon issuance in
accordance with this Subscription Agreement, the Debentures will be validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof. In the event the Company cannot register a
sufficient number of shares of Common Stock, due to the remaining number of
authorized shares of Common Stock being insufficient, the Company will use its
best efforts to register the maximum number of shares it can based on the
remaining balance of authorized shares and will use its best efforts to increase
the number of its authorized shares as soon as reasonably practicable.
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e. No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby will not (i) result in a violation
of the Articles of Incorporation, any Certificate of Designations, Preferences
and Rights of any outstanding series of preferred stock of the Company or the
By-laws or (ii) conflict with, or constitute a material default (or an event
which with notice or lapse of time or both would become a material default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, contract, indenture mortgage,
indebtedness or instrument to which the Company or any of its Subsidiaries is a
party, or result in a violation of any law, rule, regulation, order, judgment or
decree, including United States federal and state securities laws and
regulations and the rules and regulations of the principal securities exchange
or trading market on which the Common Stock is traded or listed (the "Principal
Market"), applicable to the Company or any of its Subsidiaries or by which any
property or asset of the Company or any of its Subsidiaries is bound or
affected. Except as disclosed in Schedule 3(e), neither the Company nor its
Subsidiaries is in violation of any term of, or in default under, the Articles
of Incorporation, any Certificate of Designations, Preferences and Rights of any
outstanding series of preferred stock of the Company or the By-laws or their
organizational charter or by-laws, respectively, or any contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment, decree or order or any
statute, rule or regulation applicable to the Company or its Subsidiaries,
except for possible conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations that would not individually or in
the aggregate have a Material Adverse Effect. The business of the Company and
its Subsidiaries is not being conducted, and shall not be conducted, in
violation of any law, statute, ordinance, rule, order or regulation of any
governmental authority or agency, regulatory or self-regulatory agency, or
court, except for possible violations the sanctions for which either
individually or in the aggregate would not have a Material Adverse Effect.
Except as specifically contemplated by this Subscription Agreement and as
required under the 1933 Act, the Company is not required to obtain any consent,
authorization, permit or order of, or make any filing or registration (except
the filing of a registration statement) with, any court, governmental authority
or agency, regulatory or self-regulatory agency or other third party in order
for it to execute, deliver or perform any of its obligations under, or
contemplated by, the Transaction Documents in accordance with the terms hereof
or thereof. All consents, authorizations, permits, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof and are
in full force and effect as of the date hereof. Except as disclosed in Schedule
3(e), the Company and its Subsidiaries are unaware of any facts or circumstances
which might give rise to any of the foregoing. The Company is not, and will not
be, in violation of the listing requirements of the Principal Market as in
effect on the date hereof and on each of the Closing Dates and is not aware of
any facts which would reasonably lead to delisting of the Common Stock by the
Principal Market in the foreseeable future.
9
f. SEC Documents; Financial Statements. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Securities and Exchange Commission ("SEC") pursuant to the reporting
requirements of the Securities and Exchange Act of 1934 ("1934 Act") (all of the
foregoing filed since the hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the "SEC DOCUMENTS"). The Company has delivered
to the Holder or its representatives, or they have had access through XXXXX, to
true and complete copies of the SEC Documents. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. As of their respective dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other written information provided by or on behalf of the
Company to the Holder which is not included in the SEC Documents, including,
without limitation, information referred to in Section 3(d) of this Subscription
Agreement, contains any untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstance under which they are or were made, not misleading.
g. Absence of Certain Changes. Except as disclosed in Schedule 3(g) or the
SEC Documents filed at least thirty (30) days prior to the date hereof, there
has been no change or development in the business, properties, assets,
operations, financial condition, results of operations or prospects of the
Company or its Subsidiaries which has had or reasonably could have a Material
Adverse Effect. The Company has not taken any steps, and does not currently
expect to take any steps, to seek protection pursuant to any bankruptcy law nor
does the Company or its Subsidiaries have any knowledge or reason to believe
that its creditors intend to initiate involuntary bankruptcy proceedings.
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h. Absence of Litigation. Except as set forth in the Company's SEC
filings, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the executive officers of Company or any
of its Subsidiaries, threatened against or affecting the Company, the Common
Stock or any of the Company's Subsidiaries or any of the Company's or the
Company's Subsidiaries' officers or directors in their capacities as such, in
which an adverse decision could have a Material Adverse Effect.
i. Acknowledgment Regarding the Purchase of Debentures. The Company
acknowledges and agrees that the Holder is acting solely in the capacity of an
arm's length investor with respect to the Transaction Documents and the
transactions contemplated hereby and thereby. The Company further acknowledges
that the Holder is not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the
transactions contemplated hereby and thereby and any advice given by the Holder
or any of its respective representatives or agents in connection with the
Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to the Holder's purchase of the Debentures. The Company
further represents to the Holder that the Company's decision to enter into the
Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives.
j. Intentionally omitted.
k. Employee Relations. Neither the Company nor any of its Subsidiaries is
involved in any union labor dispute nor, to the knowledge of the Company or any
of its Subsidiaries, is any such dispute threatened. Neither the Company nor any
of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that relations with their employees are
good. No executive officer (as defined in Rule 501(f) of the 0000 Xxx) has
notified the Company that such officer intends to leave the Company's employ or
otherwise terminate such officer's employment with the Company.
l. Intellectual Property Rights. All patents, patent applications,
trademark registrations and applications for trademark registration held by the
Company are owned free and clear of all mortgages, liens, charges or
encumbrances whatsoever. No licenses have been granted with respect to these
items and the Company and its Subsidiaries do not have any knowledge of any
infringement by the Company or its Subsidiaries of trademark, trade name rights,
patents, patent rights, copyrights, inventions, licenses, service names, service
marks, service xxxx registrations, trade secret or other similar rights of
others, and, except as set forth on Schedule 3(l), there is no claim, action or
proceeding being made or brought against, or to the Company's knowledge, being
threatened against, the Company or its Subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names,
service marks, service xxxx registrations, trade secret or other infringement;
and the Company and its Subsidiaries are unaware of any facts or circumstances
which might give rise to any of the foregoing. The Company and its Subsidiaries
have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their intellectual properties.
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m. Environmental Laws. The Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval where, in each of the three
foregoing cases, the failure to so comply would have, individually or in the
aggregate, a Material Adverse Effect.
n. Title. The Company and its Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
Subsidiaries, in each case free and clear of all liens, encumbrances and defects
except such as are described in Schedule 3(n) or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its Subsidiaries.
Any real property and facilities held under lease by the Company or any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
Subsidiaries.
o. Insurance. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. Neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
p. Regulatory Permits. The Company and its Subsidiaries have in full force
and effect all certificates, approvals, authorizations and permits from the
appropriate federal, state, local or foreign regulatory authorities and
comparable foreign regulatory agencies, necessary to own, lease or operate their
respective properties and assets and conduct their respective businesses, and
neither the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
approval, authorization or permit, except for such certificates, approvals,
authorizations or permits which if not obtained, or such revocations or
modifications which, would not have a Material Adverse Effect.
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q. Internal Accounting Controls. The Company and each of its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. However, the Company's auditors have
recognized a material weakness in the Company's internal control.
r. No Materially Adverse Contracts, Etc. Neither the Company nor any of
its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Company's officers has or is expected in the future to have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a
party to any contract or agreement which in the judgment of the Company's
officers has or is expected to have a Material Adverse Effect.
s. Tax Status. The Company's consolidated 2004 federal income tax return,
the Company and each of its Subsidiaries has made or filed all United States
federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject (unless and only to the
extent that the Company and each of its Subsidiaries has set aside on its books
provisions reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and has set
aside on its books provision reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
t. Certain Transactions. Except as set forth in the SEC Documents filed at
least ten days prior to the date hereof and except for arm's length transactions
pursuant to which the Company makes payments in the ordinary course of business
upon terms no less favorable than the Company could obtain from third parties
and other than the grant of stock options disclosed on Schedule 3(c), none of
the officers, directors, or employees of the Company is presently a party to any
transaction with the Company or any of its Subsidiaries (other than for services
as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge
of the Company, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
13
u. Dilutive Effect. The Company understands and acknowledges that the
number of shares of Common Stock issuable upon purchases pursuant to this
Subscription Agreement will increase in certain circumstances including, but not
necessarily limited to, the circumstance wherein the trading price of the Common
Stock declines following the effective date of the registration statement
covering the Common Stock underlying the Debentures (the "Effective Date"). The
Company's executive officers and directors have studied and fully understand the
nature of the transactions contemplated by this Subscription Agreement and
recognize that they have a potential dilutive effect. The board of directors of
the Company has concluded, in its good faith business judgment that such
issuance is in the best interests of the Company. The Company specifically
acknowledges that, subject to such limitations as are expressly set forth in the
Transaction Documents, its obligation to issue shares of Common Stock upon
purchases pursuant to this Subscription Agreement is absolute and unconditional
regardless of the dilutive effect that such issuance may have on the ownership
interests of other shareholders of the Company.
v. Additional Financings. The Company shall not, directly nor indirectly,
without the prior written consent of Holder which shall not be unreasonably
withheld, offer, sell, grant any option to purchase, or otherwise dispose of (or
announce any offer, sale, grant or any option to purchase or other disposition)
any of its Common Stock or securities convertible into Common Stock, or file any
registration statement, including those on Form S-8 for any securities, except
for a bona fide employee benefit plan (a "SUBSEQUENT FINANCING"), in either case
ending on the earlier to occur of (i) 360 (three hundred and sixty ) days after
the effective date of the registration statement covering resale of the shares
of Common Stock underlying the Debentures (the "Effective Date") and (ii) the
date on which the full Face Amount, accrued interest and penalties, if any, on
the Debentures have been paid ("Lock Up Period").
During the twelve (12) month period following Closing, or if there is any
outstanding balance on the Debentures, the Holder shall retain a first right of
refusal for any additional financings. The Company must submit to the Holder a
duly authorized term sheet of the financing and the Holder may elect, in writing
within five (5) days, to exercise its right to finance the Company upon the same
terms and conditions. In the event the Holder does not elect to complete such
financing within such period, the Company may proceed with the proposed
third-party financing on the same terms and conditions as contained in the
notice to Holder.
14
The Holder shall also reserve the right to switch to the terms of the new
financing ("Most Favored Nations").
x. Xxxxxxxx-Xxxxx Compliance. The Company hereby acknowledges that they
are current with the requirement of Xxxxxxxx-Xxxxx Act of 2002 ("Sarbox"), and
will remain compliant with Sarbox and its rules and regulations for reporting
requirements in the time frame required by Sarbox, and any updates to deadlines
imposed by Sarbox.
x. Code of Ethics. The Company has adopted a Code of Ethics and has filed
the Code with the SEC.
4. COVENANTS OF THE COMPANY
a. Best Efforts. The Company shall use its best efforts timely to satisfy
each of the conditions to be satisfied by it as provided in this Subscription
Agreement.
b. Blue Sky. The Company shall, at its sole cost and expense, make all
filings and reports relating to the offer and sale of the Debentures and the
Common Stock underlying the Debentures as required under the applicable
securities or "Blue Sky" laws of such states of the United States as specified
by the Holder.
c. Reporting Status. Until the earlier of (i) the date that the Holder may
sell all of the Common Stock underlying the Debentures acquired pursuant to this
Subscription Agreement without restriction pursuant to Rule 144(k) promulgated
under the 1933 Act (or successor thereto), or (ii) the date on which the Holder
shall have sold all the Common Stock underlying the Debentures, the Company
shall file all reports required to be filed with the SEC pursuant to the 1934
Act, and the Company shall not terminate its status as a reporting company under
the 1934 Act.
d. Use of Proceeds. The Company shall use the entire proceeds from this
Debenture exclusively to further the growth and interest of the Company. Any
other use of the funds contemplated herein, shall be considered a breach of
contract and an event of Default.
e. Conditions to Closing, The Company shall sign and comply with the
Transaction Documents with Dutchess Private Equities Fund, II, L.P.
f. Financial Information. The Company agrees to make available to the
Holder via XXXXX or other electronic means the following: (i) within five (5)
business days after the filing thereof with the SEC, a copy of its Annual
Reports on Form 10-KSB, its Quarterly Reports on Form 10-QSB, any Current
Reports on Form 8-K and any Registration Statements or amendments filed pursuant
to the 1933 Act; (ii) on the same day as the release thereof, facsimile copies
of all press releases issued by the Company or any of its Subsidiaries, (iii)
copies of any notices and other information made available or given to the
shareholders of the Company generally, contemporaneously with the making
available or giving thereof to the shareholders and (iv) within two (2) calendar
days of filing or delivery thereof, copies of all documents filed with, and all
correspondence sent to, the Principal Market, any securities exchange or market,
or the National Association of Securities Dealers, Inc.
15
g. Reservation of Common Stock. Subject to the following sentence, the
Company shall take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, a sufficient number of shares of Common
Stock to provide for the issuance of the Common Stock underlying the Debentures.
In the event that the Company determines that it does not have a sufficient
number of authorized shares of Common Stock to reserve and keep available for
issuance, the Company shall use its best efforts to increase the number of
authorized shares of Common Stock by seeking shareholder approval for the
authorization of such additional shares. The Holder shall have the right to
determine the amount of shares to be re-registered to satisfy the terms of the
Agreement. Such amount must be usual or customary.
h. Listing. The Company shall promptly secure the listing of all of the
Common Stock underlying the Debentures upon the Principal Market and each other
national securities exchange and automated quotation system, if any, upon which
shares of Common Stock are then listed (subject to official notice of issuance)
and shall maintain, such listing. The Company shall maintain the Common Stock's
authorization for quotation on the Principal Market, unless the Holder and the
Company agree otherwise. Neither the Company nor any of its Subsidiaries shall
take any action which would be reasonably expected to result in the delisting or
suspension of the Common Stock on the Principal Market (excluding suspensions of
not more than one trading day resulting from business announcements by the
Company). The Company shall promptly provide to the Holder copies of any notices
it receives from the Principal Market regarding the continued eligibility of the
Common Stock for listing on such automated quotation system or securities
exchange. The Company shall pay all fees and expenses in connection with
satisfying its obligations under this Section.
i. Transactions With Affiliates. During the Lock-Up Period, the Company
shall not, and shall cause each of its Subsidiaries not to, enter into, amend,
modify or supplement, or permit any Subsidiary to enter into, amend, modify or
supplement, any agreement, transaction, commitment or arrangement with any of
its or any Subsidiary's officers, directors, persons who were officers or
directors at any time during the previous two years, shareholders who
beneficially own five percent (5%) or more of the Common Stock, or affiliates or
with any individual related by blood, marriage or adoption to any such
individual or with any entity in which any such entity or individual owns a five
percent (5%) or more beneficial interest (each a "RELATED PARTY") during the
Lock Up Period; except for (i) customary employment arrangements and benefit
programs on reasonable terms (including changes currently under discussion with
the Company's Board of Directors concerning the compensation, to be payable in
stock, of the Chairman of the Board), (ii) any agreement, transaction,
commitment or arrangement on an arms-length basis on terms no less favorable
than terms which would have been obtainable from a person other than such
Related Party, or (iii) any agreement, transaction, commitment or arrangement
which is approved by a majority of the disinterested directors of the Company.
For purposes hereof, any director who is also an officer of the Company or any
Subsidiary of the Company shall not be a disinterested director with respect to
any such agreement, transaction, commitment or arrangement. "AFFILIATE" for
purposes hereof means, with respect to any person or entity, another person or
entity that, directly or indirectly, (i) has a five percent (5%) or more equity
interest in that person or entity, (ii) has five percent (5%) or more common
ownership with that person or entity, (iii) Controls that person or entity, or
(iv) shares common control with that person or entity. "CONTROL" or "CONTROLS"
for purposes hereof means that a person or entity has the power, direct or
indirect, to conduct or govern the policies of another person or entity.
16
j. Corporate Existence. The Company shall use its commercially reasonable
best efforts to preserve and continue the corporate existence of the Company.
k. Notice of Certain Events Affecting Registration. The Company shall
promptly notify Holder upon the occurrence of any of the following events in
respect of a registration statement or related prospectus covering the Common
Stock underlying the Debentures: (i) receipt of any request for additional
information by the SEC or any other federal or state governmental authority
during the period of effectiveness of the registration statement for amendments
or supplements to the registration statement or related prospectus; (ii) the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of any registration statement or the
initiation of any proceedings for that purpose; (iii) receipt of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Common Stock underlying the Debentures for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; (iv) the happening of any event that makes any statement made in such
registration statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in the registration statement, related
prospectus or documents so that, in the case of a registration statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the related prospectus, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) the Company's reasonable determination that a post-effective
amendment to the registration statement would be appropriate, and the Company
shall promptly make available to Holder any such supplement or amendment to the
related prospectus.
17
l. Indemnification. In consideration of the Holder's execution and
delivery of the this Agreement and the Debenture Registration Rights Agreement
and acquiring the Debentures hereunder and in addition to all of the Company's
other obligations under the Transaction Documents, the Company shall defend,
protect, indemnify and hold harmless the Holder and all of its shareholders,
officers, directors, employees and direct or indirect investors and any of the
foregoing person's agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by
this Agreement) (collectively, the "Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by any Indemnitee as a result of, or
arising out of, or relating to (i) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby,
(ii) any breach of any covenant, agreement or obligation of the Company
contained in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (iii) any cause of action, suit or
claim brought or made against such Indemnitee by a third party and arising out
of or resulting from the execution, delivery, performance or enforcement of the
Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, (iv) any transaction financed or to be financed
in whole or in part, directly or indirectly, with the proceeds of the issuance
of the Debentures or (v) the status of the Holder as an investor in the Company,
except, in the case of any of such clauses, insofar as any such Indemnified
Liability was attributable to gross negligence, willful misconduct or any
illegal activity on the part of Holder and, in the case of clause (v) only,
insofar as any such Indemnified Liability was attributable to an untrue
statement, alleged untrue statement, omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Holder which is specifically intended by the Holder for use in
the preparation of any Registration Statement, preliminary prospectus or
prospectus. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The indemnity provisions contained herein
shall be in addition to any cause of action or similar rights the Holder may
have, and any liabilities to which the Holder may be subject. Notwithstanding
the foregoing, the Company shall have no indemnification responsibility in the
event Holder fails to timely notify the Company of a claim or potential claim
for which indemnification is sought, but only to the extent the Company is
prejudiced thereby. The Company shall have the right to control the defense of
any such claim and the Holder shall not consent to any settlement of any such
claim without the prior written consent of the Company (which shall not be
unreasonably withheld or delayed). The Holder shall provide indemnification
comparable in scope and coverage to the Company and corresponding related
persons in respect of any Indemnified Liability if and to the extent
attributable to gross negligence, willful misconduct or any illegal activity on
the part of Holder, and shall be obligated to reimburse the Company and such
persons to the same extent as the Company's reimbursement obligations under
Section 4(m) below.
18
m. Reimbursement. If (i) Holder, other than by reason of its gross
negligence or willful misconduct, becomes involved in any capacity in any
action, proceeding or investigation brought by any shareholder of the Company,
in connection with or as a result of the consummation of the transactions
contemplated by the Transaction Documents, or if Holder is impleaded in any such
action, proceeding or investigation by any person, or (ii) Holder, other than by
reason of its gross negligence or willful misconduct or by reason of its trading
of the Common Stock in a manner that is illegal under the federal securities
laws, becomes involved in any capacity in any action, proceeding or
investigation brought by the SEC against or involving the Company or in
connection with or as a result of the consummation of the transactions
contemplated by the Transaction Documents, or if Holder is impleaded in any such
action, proceeding or investigation by any person, then in any such case, the
Company will reimburse Holder for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in connection
therewith, as such expenses are incurred. In addition, other than with respect
to any matter in which Holder is a named party, the Company will pay to Holder
the charges, as reasonably determined by Holder, for the time of any officers or
employees of Holder devoted to appearing and preparing to appear as witnesses,
assisting in preparation for hearings, trials or pretrial matters, or otherwise
with respect to inquiries, hearing, trials, and other proceedings relating to
the subject matter of this Subscription Agreement. The reimbursement obligations
of the Company under this section shall be in addition to any liability which
the Company may otherwise have, shall extend upon the same terms and conditions
to any affiliates of Holder that are actually named in such action, proceeding
or investigation, and partners, directors, agents, employees, attorneys,
accountants, auditors and controlling persons (if any), as the case may be, of
Holder and any such affiliate, and shall be binding upon and inure to the
benefit of any successors of the Company, Holder and any such affiliate and any
such person.
n. Transfer Agent. The Company covenants and agrees that, in the event
that the Company's agency relationship with the transfer agent should be
terminated for any reason prior to the Maturity Date (as defined in the
Debenture Agreement), the Company shall immediately appoint a new transfer agent
and shall require that the new transfer agent execute and agree to be bound by
the terms of the Irrevocable Transfer Agent Instructions (as defined herein).
The Company shall be up to date with all payments to the transfer agent, and
continue to pay transfer agent as outlined in the Irrevocable Transfer Agent
Agreement.
19
5. OPINION LETTER/BOARD RESOLUTION
Prior to or on the Closing Date the Company shall deliver to the Holder an
opinion letter signed by counsel for the Company in the form attached hereto as
Exhibit D. If the Company's counsel fails to provide a Rule 144 opinion letter
in a timely manner, then the Company shall: (a) pay the Investor's counsel to
write said Rule 144 opinion letter; and (b) instruct the designated transfer
agent to accept same Rule 144 Opinion letter (attached hereto as Exhibit E).
Also, prior to or on the Closing Date the Company shall deliver to the Holder a
signed Board Resolution authorizing this Offering, which shall be attached
hereto as Exhibit F.
6. DELIVERY INSTRUCTIONS; FEES
The Debentures being purchased hereunder shall be delivered to Dutchess
Private Equities Fund, L.P., II, on the Closing Date at which time funds will be
wired to the Company and the Debentures will be delivered to the Holder, per the
Holder's instructions.
7. UNDERSTANDINGS.
The undersigned understands, acknowledges and agrees with the Company as
follows:
FOR ALL SUBSCRIBERS:
a. This Subscription may be rejected, in whole or in part, by the Company
in its sole and absolute discretion at any time before the date set for Closing
unless the Company has given notice of acceptance of the undersigned's
subscription by signing this Subscription Agreement and delivering it to Holder.
b. No U.S. federal or state agency or any agency of any other jurisdiction
has made any finding or determination as to the fairness of the terms of the
Offering for investment nor any recommendation or endorsement of the Debentures
or the Company.
c. The representations, warranties and agreements of the undersigned and
the Company contained herein shall be true and correct in all material respects
on and as of the date of the sale of the Debentures as if made on and as of such
date and shall survive the execution and delivery of this Subscription Agreement
and the purchase of the Debentures.
d. In making an investment decision, Holders must rely on their 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. Furthermore, the foregoing
authorities have not confirmed the accuracy or determined the adequacy of this
document. Any representation to the contrary is a criminal offense.
20
e. The Offering is intended to be exempt from registration by virtue of
Section 4(2) of the 1933 Act and the provisions of Regulation D thereunder,
which is in part dependent upon the truth, completeness and accuracy of the
statements made by the undersigned herein and in the Questionnaire.
f. It is understood that in order not to jeopardize the Offering's exempt
status under Section 4(2) of the 1933 Act and Regulation D, any Holder may, at a
minimum, be required to fulfill the investor suitability requirements
thereunder.
g. The shares may not be resold except as permitted under the securities
act and applicable state securities laws, pursuant to registration or exemption
therefrom. Holder should be aware that they will be required to bear the
financial risks of this investment for an indefinite period of time.
8. DISPUTES SUBJECT TO ARBITRATION GOVERNED BY MASSACHUSETTS LAW
a. All disputes arising under this agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
without regard to principles of conflict of laws. The parties to this agreement
will submit all disputes arising under this agreement to arbitration in Boston,
Massachusetts before a single arbitrator of the American Arbitration Association
("AAA"). The arbitrator shall be selected by application of the rules of the
AAA, or by mutual agreement of the parties, except that such arbitrator shall be
an attorney admitted to practice law in the Commonwealth of Massachusetts. No
party to this agreement will challenge the jurisdiction or venue provisions as
provided in this section.
9. MISCELLANEOUS.
a. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Subscription Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided a
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) day after deposit with a
nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
Xxxxx Xxxxx
Xxxxxx Financial Corp
000 Xxxxxxx Xxxxxx - Xxxxx 00X
Xxxxxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
21
If to the Holder:
At the address listed in the Questionnaire.
Each party shall provide five (5) business days prior notice to the other
party of any change in address, phone number or facsimile number.
b. All pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, impersonal, singular or plural, as the
identity of the person or persons may require.
c. Neither this Subscription Agreement nor any provision hereof shall be
waived, modified, changed, discharged, terminated, revoked or canceled, except
by an instrument in writing signed by the party effecting the same against whom
any change, discharge or termination is sought.
d. Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or sent
by facsimile transmission: (i) if to the Company, at it's executive offices or
(ii) if to the Holder, at the address for correspondence set forth in the
Questionnaire, or at such other address as may have been specified by written
notice given in accordance with this paragraph.
e. This Subscription Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the Commonwealth of
Massachusetts, as such laws are applied by Massachusetts courts to agreements
entered into, and to be performed in, Massachusetts by and between residents of
Massachusetts, and shall be binding upon the undersigned, the undersigned's
heirs, estate and legal representatives and shall inure to the benefit of the
Company and its successors. If any provision of this Subscription Agreement is
invalid or unenforceable under any applicable statue or rule of law, then such
provisions shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof that may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
f. This Agreement shall not be assignable.
g. This Subscription Agreement, together with Exhibits A, B, C, D, E and F
attached hereto and made a part hereof, constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by both parties hereto.
22
h. This Subscription Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
Execution and delivery of this Subscription Agreement by exchange of facsimile
copies bearing the facsimile signature of a party shall constitute a valid and
binding execution and delivery of this Subscription Agreement by such party.
Such facsimile copies shall constitute enforceable original documents.
10. Transfer Agent Instructions
The Company shall issue the Irrevocable Transfer Agent Instructions to its
transfer agent irrevocably appointing Dutchess Capital Management, LLC and its
managing members ("DCM"), as its agent for purpose of having certificates
issued, registered in the name of the Holder or its respective nominee(s), for
the issuance of Shares representing such amounts from the respective for
conversions or warrants, as specified from time to time by the Holder to the
Company upon the Conversion Date (as defined in the Debenture Agreement), and
for any and all Liquidated Damages, if any (as this term is defined in the
Debenture Registration Rights Agreement). DCM shall be paid a cash fee of Fifty
Dollars ($50) for every occasion they act pursuant to the Irrevocable Transfer
Agent Instructions. The Company shall not change its transfer agent without the
express written consent of the Holder, which may be withheld by the Holder in
its sole discretion. The Company warrants that no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this Section 10, will be
given by the Company to its transfer agent and that the issuance of Shares shall
otherwise be freely transferable on the books and records of the Company as and
to the extent provided in this Agreement and the Debenture Registration Rights
Agreement. Nothing in this Section 10 shall affect in any way the Holder's
obligations and agreement to comply with all applicable securities laws upon
resale of Shares. If the Holder provides the Company with an opinion of counsel,
in form, scope and substance customary for opinions of counsel in comparable
transactions to the effect that registration of a resale by the Holder of any of
the Conversion Shares is not required under the 1933 Act, the Company shall
within two (2) business days instruct its transfer agent to issue one or more
certificates in such name and in such denominations as specified by the Holder.
The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Holder by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 10 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 10, that the Holder shall be entitled,
in addition to all other available remedies, to an injunction restraining any
breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.
23
11. Waiver:
The Holder's delay or failure at any time or times hereafter to require strict
performance by Company of any undertakings, agreements or covenants shall not
waiver, affect, or diminish any right of the Holder under this Agreement to
demand strict compliance and performance herewith. Any waiver by the Holder of
any Event of Default shall not waive or affect any other Event of Default,
whether such Event of Default is prior or subsequent thereto and whether of the
same or a different type. None of the undertakings, agreements and covenants of
the Company contained in this Agreement, and no Event of Default, shall be
deemed to have been waived by the Holder, nor may this Agreement be amended,
changed or modified, unless such waiver, amendment, change or modification is
evidenced by an instrument in writing specifying such waiver, amendment, change
or modification and signed by the Holder.
12. Waiver of Jury Trial.
AS A MATERIAL INDUCEMENT FOR EACH PARTY HERETO TO ENTER INTO THIS AGREEMENT, THE
PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS
ASSOCIATED WITH THIS TRANSACTION.
13. No Oral Agreements
This Written Agreement and the accompanying Transaction Documents represent the
FINAL AGREEEMENTS between the Company and the Holders and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties, there are no unwritten oral agreements among the
parties.
14. Change in Par Value
The Company hereby agrees that within sixty (60) days to file a proxy or issue
an information statement amending the articles of incorporation of the Company
to change the par value to .0001 per share.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK)
24
Xxxxxx Financial Corp.
QUESTIONNAIRE
The information contained in this Questionnaire is being furnished in
order to determine whether the undersigned's subscription to purchase the
Debentures described in the Subscription Agreement may be accepted.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned understands, however, that the Company may
present this Questionnaire to such parties as it deems appropriate if called
upon to establish that the proposed offer and sale of the Securities is exempt
from registration under the 1933 Act, as amended. Further, the undersigned
understands that the offering is required to be reported to the Securities and
Exchange Commission, and to various state securities and "blue sky" regulators.
IN ADDITION TO SIGNING THE SIGNATURE PAGE, IF REQUESTED BY THE COMPANY,
THE UNDERSIGNED MUST COMPLETE FORM W-9.
I. PLEASE CHECK EACH OF THE STATEMENTS BELOW THAT APPLIES.
|_| 1. The undersigned: (a) has total assets in excess of
$5,000,000; (b) was not formed for the specific purpose of acquiring
the securities and (c) has its principal place of business in
___________.
|_| 2. The undersigned is a natural person whose individual net
worth* or joint net worth with his or her spouse exceeds $1,000,000.
|_| 3. The undersigned is a natural person who had an individual
income* in excess of $200,000 in each of the two most recent years
and who reasonably expects an individual income in excess of
$200,000 in the current year. Such income is solely that of the
undersigned and excludes the income of the undersigned's spouse.
|_| 4. The undersigned is a natural person who, together with his
or her spouse, has had a joint income* in excess of $300,000 in each
of the two most recent years and who reasonably expects a joint
income in excess of $300,000 in the current year.
* For purposes of this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In determining "income", an investor should
add to his or her adjusted gross income any amounts attributable to tax-exempt
income received, losses claimed as a limited partner in any limited partnership,
deductions claimed for depletion, contributions to XXX or Xxxxx retirement plan,
alimony payments and any amount by which income from long-term capital gains has
been reduced in arriving at adjusted gross income.
25
5. The undersigned is:
|_| (a) a bank as defined in Section 3(a)(2) of the 1933 Act; or
|_| (b) a savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the 1933 Act whether acting in its
individual or fiduciary capacity; or
|_| (c) a broker or dealer registered pursuant to Section 15 of the
1934 Act; or
|_| (d) an insurance company as defined in Section 2(13) of the 1933
Act; or
|_| (e) An investment company registered under the Investment Company
Act of 1940 or a business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940; or
|_| (f) a small business investment company licensed by the U.S. Small
Business Administration under Section 301 (c) or (d) of the
Small Business Investment Act of 1958; or
|X| 6. The undersigned is an entity in which all of the equity owners
are accredited investors.
26
II. HOLDER INFORMATION.
Name of Entity Dutchess Private Equities Fund, II, L.P.
----------------------------------------
Person's Name Xxxxxxx Xxxxxxxx Title: Managing Member
---------------- ----------------------------------
State of Organization Delaware
----------------------------------------
Principal Business Address 00 Xxxxxxxxxxxx Xxx
----------------------------------------
Xxxx, Xxxxx, Zip Code Xxxxxx, XX 00000
----------------------------------------
Taxpayer Identification Number ----------------------------------------
Phone 000-000-0000 Fax 000-000-0000
---------------------- ------------------------------------
Send Correspondence to:
00 Xxxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxx, XX 00000
-----------------------------------------------
27
Xxxxxx Financial Corp.
SIGNATURE PAGE
Your signature on this Signature Page evidences your agreement to be bound
by the Questionnaire, Subscription Agreement and Debenture Registration Rights
Agreement.
1. The undersigned hereby represents that (a) the information contained in
the Questionnaire is complete and accurate and (b) the undersigned will notify
Company immediately if any material change in any of the information occurs
prior to the acceptance of the undersigned's subscription and will promptly send
Company written confirmation of such change.
2. The undersigned signatory hereby certifies that he/she has read and
understands the Subscription Agreement and Questionnaire, and the
representations made by the undersigned in the Subscription Agreement and
Questionnaire are true and accurate.
$220,000 December 23, 2005
------------------------------ ------------------------
Amount of Debentures being purchased Date
Dutchess Private Equities Fund II, LP
By:
-------------------------------------
(Signature)
Name: Xxxxxxx Xxxxxxxx
----------------------------------------
(Please Type or Print)
Title: Managing Member,
Dutchess Capital Management, LLC;
General Partner to:
Dutchess Private Equities Fund, LP and
Dutchess Private Equities Fund II, LP
----------------------------------------
(Please Type or Print)
28
COMPANY ACCEPTANCE PAGE
This Subscription Agreement accepted and agreed to this 23rd day of December,
2005.
By Xxxxxx Financial Corp. and duly authorized to sign on behalf of the Company:
By
-------------------------
Xxxxxxxx X. Xxxxx, Chief Executive Officer
29
LIST OF EXHIBITS
-----------------
EXHIBIT A Notice of Conversion
EXHIBIT B Debenture Registration Rights Agreement
EXHIBIT C Debenture Agreement
EXHIBIT D Opinion of Company's Counsel
EXHIBIT E Irrevocable Transfer Agent Agreement
EXHIBIT F Board Resolution (included as Exhibit 4 on the Irrevocable
Stock Transfer Agreement)
LIST OF SCHEDULES
-----------------
Schedule 3(a) Subsidiaries
Schedule 3(c) Capitalization
Schedule 3(e) Conflicts
Schedule 3(g) Material Changes
Schedule 3(h) Litigation
Schedule 3(l) Intellectual Property
Schedule 3(n) Liens
Schedule 3(t) Certain Transactions
30
Exhibit A
NOTICE OF CONVERSION
(To be Executed by the Registered Owner in order to Convert Debenture)
TO: XXXXXX FINANCIAL CORP.
The undersigned hereby irrevocably elects, as of ________________, to
convert $________________ of its convertible debenture (the "Debenture") into
Common Stock of Xxxxxx Financial Corp. (the "Company") according to the
conditions set forth in the Debenture issued by the Company.
Date of Conversion
--------------------------------------------------------------
Applicable Conversion Price
-----------------------------------------------------
Number of Debentures Issuable upon this Conversion
------------------------------
Name(Print) Dutchess Private Equities Fund, II, LP
--------------------------------------------------------------------
Address 00 Xxxxxxxxxxxx Xxx, Xxxxxx, XX 00000
-------------------------------------------------------------------------
Phone 000-000-0000 Fax 000-000-0000
------------ ------------
By:
-------------------------------------
31
EXHIBIT D OPINION OF COMPANY'S COUNSEL
Holders of [Company] [Describe Securities] _______________, 2005
Re: Xxxxxx Financial Corp.
Ladies and Gentlemen:
As counsel to Xxxxxx Financial Corp. (the "Company"), we are familiar with
its Articles of Incorporation and Bylaws and with the corporate proceedings
taken by it in connection with the proposed issuance and sale of convertible
debentures (the "Securities") pursuant to the related Subscription Agreement
(including all Exhibits and Appendices thereto) (collectively the "Agreements").
We have been furnished with copies, certified or otherwise identified to
our satisfaction, of the Agreements, and have examined such other documents,
agreements and records as we deemed necessary to render the opinions set forth
below.
In conducting our examination, we have assumed the following: (i) that
each of the Agreements has been executed by each of the parties thereto in the
same form as the forms which we have examined, (ii) the genuineness of all
signatures, the legal capacity of natural persons, the authenticity and accuracy
of all documents submitted to us as originals, and the conformity to originals
of all documents submitted to us as copies, (iii) that each of the Agreements
has been duly and validly authorized, executed and delivered by the party or
parties thereto other than the Company, and (iv) that each of the Agreements
constitutes the valid and binding agreement of the party or parties thereto
other than the Company, enforceable against such party or parties in accordance
with the Agreements' terms.
Based upon the subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to own its properties and conduct
its business as presently conducted.
2. The authorized capital stock of the Company consists of _______ shares
of Common Stock, .10 par value per share, ("Common Stock").
3. To our knowledge, (i)the Company's equity securities are not registered
under Section 12(b) or Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (ii) the Company is required to file reports
with the Securities and Exchange Commission pursuant to Section 15(d) of the
Exchange Act.;
32
4. When duly countersigned by the Company's transfer agent and registrar,
and delivered to you or upon your order against payment of the agreed
consideration therefor in accordance with the provisions of the Agreements, the
Securities [and any Common Stock to be issued upon the conversion of the
Securities] as described in the Agreements represented thereby will be duly
authorized and validly issued, fully paid and nonassessable;
5 The Company has the requisite corporate power and authority to enter
into the Subscription Agreement and to sell and deliver the Securities and the
Common Stock to be issued upon the conversion of the Securities as described in
the Agreements; each of the Agreements has been duly and validly authorized by
all necessary corporate action by the Company to our knowledge, no approval of
any governmental or other body is required for the execution and delivery of
each of the Agreements by the Company or the consummation of the transactions
contemplated thereby; each of the Agreements has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by general equitable principles, public policy,
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other laws affecting creditors rights generally, and except as to compliance
with federal, state, and foreign securities laws, as to which no opinion is
expressed;
6. Neither the execution, delivery and performance of the Subscription
Agreement and Securities by the Company and the performance of its obligations
thereunder do not and will not constitute a breach or violation of any of the
terms and provisions of, or constitute a default under or conflict with or
violate any provision of (i) the Company's Certificate of Incorporation or
By-Laws, (ii) any indenture, mortgage, deed of trust, agreement or other
instrument to which the Company is party or by which it or any of its property
is bound, (iii) any applicable statute or regulation or as other, (iv) or any
judgment, decree or order of any court or governmental body having jurisdiction
over the Company or any of its property.
7. To the best of our knowledge, there is no pending or threatened
litigation, investigation or other proceedings against the Company.
8. The Company complies with the eligibility requirements for the use of
Form SB-2, under the Securities Act of 1933, as amended.
This opinion is rendered only with regard to the matters set out in the
numbered paragraphs above. No other opinions are intended nor should they be
inferred. This opinion is based solely upon the laws of the United States and
the State of New York and the Delaware General Corporation Law and does not
include an interpretation or statement concerning the laws of any other state or
jurisdiction. Insofar as the enforceability of the Subscription Agreement and
Securities may be governed by the laws of other states, we have assumed that
such laws are identical in all respects to the laws of the State of New York.
33
The opinions expressed herein are given to you solely for your use in
connection with the transaction contemplated by the Subscription Agreement and
Securities and may not be relied upon by any other person or entity or for any
other purpose without our prior consent.
Very truly yours,
By:
-------------------------------------
34
EXHIBIT F
LETTER TO TA
SCHEDULE 3(a) SUBSIDIARIES
Name State of Incorporation EIN
-------- ---------------------- --------
35
SCHEDULE 3(c) CAPITALIZATION
36
SCHEDULE 3(e) CONFLICTS
37
SCHEDULE 3(g) MATERIAL CHANGES
38
SCHEDULE 3(h) LITIGATION
NONE, EXCEPT AS DISCLOSED IN THE COMPANY'S SEC FILINGS.
39
SCHEDULE 3(l) INTELLECTUAL PROPERTY
NONE
40
SCHEDULE 3(n) LIENS
41
SCHEDULE 3(t) CERTAIN TRANSACTIONS
42
