SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
This
subscription agreement (this “Subscription
Agreement”) is dated March __, 2010, by and between the investor
identified on the signature page hereto (“Investor”) and CPI
Aerostructures, Inc., a New York corporation (the “Company”), whereby
the parties agree as follows:
1. Subscription.
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a)
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Investor
agrees to buy and the Company agrees to sell and issue to Investor such
number of shares of the Company’s common stock, $0.001 par value per share
(the “Common
Stock”), set forth on the signature page hereto (such shares of
Common Stock, the “Shares”) for
the aggregate purchase price set forth on the signature page hereto (the
“Purchase
Price”).
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b)
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The
Shares have been registered on the Company's registration statement on
Form S-3 (File No. 333-161978) (the “Registration
Statement”), which has been declared effective by the Securities
and Exchange Commission (the “Commission”),
has remained effective since such date and is effective on the date
hereof. The Shares are being issued in connection with an
offering (the “Offering”)
described in a Prospectus Supplement dated March 30, 2010, along with the
Base Prospectus dated September 17, 2009, which has been delivered to the
Investor (collectively, the “Prospectus”).
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c)
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On
April 6, 2010 (the “Closing Date”),
in accordance with Rule 15c6-1 promulgated under the Securities Exchange
Act of 1934, as amended, and subject to the satisfaction or waiver of all
of the closing conditions set forth in the Placement Agency Agreement (the
“Placement
Agreement”), dated March 30, 2010, by and among the Company and the
placement agent named therein (the “Placement
Agent”), Investor will provide the Purchase Price by delivery of
immediately available funds versus receipt of the Shares through
Investor’s executing broker’s delivery versus payment account established
at the Placement Agent; the Placement Agent will disburse, or cause to be
disbursed, to the Company an amount equal to the Purchase Price for such
Shares, less its commissions and reimbursable expenses (the “Fees”); and the
Company shall cause the Shares to be delivered to Investor through the
Placement Agent. The transfer of the Shares shall be made through the
facilities of The Depository Trust Company’s DWAC system in accordance
with the instructions set forth on the signature page attached hereto
under the heading “DWAC
Instructions.”
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2. Company Representations and
Warranties. The Placement Agreement contains representations,
warranties, covenants and agreements of the Company that the Company hereby
expressly agrees may be relied upon by Investor, which shall be a third party
beneficiary of the covenants, agreements, representations and warranties of the
Company contained therein. The Company
confirms that neither it nor any other person acting on its behalf has provided
Investor or their agents or counsel with any information that constitutes or
could reasonably be expected to constitute material, nonpublic information,
except as will be disclosed in the Prospectus and the Company’s press release
and Form 8-K filed with the Commission in connection with the
Offering. The Company understands and
confirms that Investor will rely on the foregoing in effecting transactions in
securities of the Company. In addition to and without limiting the
foregoing, the Company represents and warrants that: (a) it has full
right, power and authority to enter into this Subscription Agreement and to
perform all of its obligations hereunder; (b) this Subscription Agreement has
been duly authorized and executed by the Company and constitutes a valid and
binding agreement of the Company enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally; (c) the execution and delivery of this Subscription
Agreement and the consummation of the transactions contemplated hereby do not
conflict with or result in a breach of (i) the Company’s articles of
incorporation or by-laws, or (ii) any agreement or any law or regulation to
which the Company is a party or by which any of its property or assets is bound;
(d) the Shares have been duly authorized for sale and issuance, and when issued
and delivered, will be validly issued, fully paid and nonassessable; (e) the
Registration Statement and any post-effective amendment thereto filed pursuant
to the Securities Act of 1933, as amended (the “Securities Act”), at
the time it became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (f) the Prospectus did not
contain as of its respective date, and as of the date hereof does not contain,
and on the Closing Date will not contain, any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (g) all preemptive rights or rights of first refusal held by
stockholders of the Company and applicable to the transactions contemplated
hereby, if any, have been duly satisfied or waived in accordance with the terms
of the agreements between the Company and such stockholders conferring such
rights.
3. Investor Representations,
Warranties and Acknowledgments. Investor represents and
warrants that: (a) it has full right, power and authority to enter into this
Subscription Agreement and to perform all of its obligations hereunder; (b) this
Subscription Agreement has been duly authorized and executed by and constitutes
a valid and binding agreement of Investor enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally; (c) the execution and delivery of this Subscription
Agreement and the consummation of the transactions contemplated hereby do not
conflict with or result in a breach of (i) Investor’s certificate of
incorporation or by-laws (or other similar governing documents), or (ii) any
material agreement or any law or regulation to which Investor is a party or by
which any of its property or assets is bound; and (d) prior to the execution
hereof, Investor has had full access to and relied only upon (i) the Base
Prospectus, (ii) any prospectus supplements to the Base Prospectus, including in
each case information incorporated by reference therein, and (iii) the pricing,
placement agency and expense information contained in this
Agreement. Investor has not relied on the business or legal advice of
Xxxx Capital Partners, LLC or any of their respective agents, counsel or
affiliates in making its investment decision hereunder, and confirms that none
of such persons has made any representations or warranties to Investor or its
agents in connection with the Offering or the Company. Investor
further acknowledges that other investors (“Other Investors”) are
concurrently entering into subscription agreements in substantially the same
form as this Subscription Agreement as part of the Offering and that the
consummation of the transaction is, in addition to the conditions to the closing
set forth in Sections 5 and 6 hereof, subject to the terms and conditions of the
Placement Agreement.
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4. Company
Covenants. If this Subscription Agreement is executed by the
parties hereto outside the regular trading hours of the financial markets in New
York City, the Company and Investor agree that the Company shall, prior to the
next opening of the financial markets in New York City, issue a press release
announcing the Offering and disclosing all material information regarding the
Offering, if reasonably feasible. If this Subscription Agreement is
executed by the parties hereto during the regular trading hours of the financial
markets in New York City, such press release shall be issued prior to the close
of the financial markets on the date hereof, if reasonably
feasible. Notwithstanding the foregoing, in no event will such press
release be issued before the last Subscription Agreement relating to the
Offering has been executed by the Company and the applicable Other
Investors.
5. Conditions to the Company’s
Obligations. In addition to any other conditions set forth
herein, the Company’s obligation to issue and sell the Shares to Investor shall
be subject to: (a) the receipt by the Company of the Purchase Price for the
Shares being purchased hereunder as set forth on the Signature Page (less the
Fees) and (b) the accuracy in all material respects of the representations and
warranties made by Investor and the fulfillment of those undertakings of
Investor to be fulfilled prior to the Closing Date.
6. Conditions to Investor’s
Obligations. In addition to any other conditions set forth herein,
Investor’s obligation to purchase the Shares will be subject to (a) the
condition that the Placement Agent shall not have terminated the Placement
Agreement pursuant to the terms thereof, (b) the satisfaction in all material
respects of the conditions to the Placement Agent’s obligation to closing in the
Placement Agreement, and (c) the accuracy in all material respects of the
representations and warranties made by the Company and the fulfillment of those
undertakings of the Company to be fulfilled prior to the Closing Date.
Investor’s obligations are not conditioned on the purchase of Shares by the
Other Investors in the Offering.
7. Miscellaneous.
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a)
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Xxxx
Capital Partners, LLC is serving as placement agent in this transaction
and consummation of the transaction is subject to the terms and conditions
of the Placement Agreement.
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b)
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Except
as otherwise provided herein, this Subscription Agreement constitutes the
entire understanding and agreement between the parties with respect to its
subject matter and there are no agreements or understandings with respect
to the subject matter hereof which are not contained in this Subscription
Agreement. This Subscription Agreement may be modified only in
writing signed by the parties
hereto.
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c)
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In
the event that the Placement Agreement is terminated by the Placement
Agent prior to the closing to occur on the Closing Date pursuant to the
terms thereof, this Agreement shall terminate without any further action
or liability on the part of the parties
hereto.
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d)
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This
Subscription Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument and
shall become
effective when counterparts have been signed by each party and delivered
to the other parties hereto, it being understood that all parties need not
sign the same counterpart. Execution may be made by delivery by
facsimile or PDF.
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e)
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The
provisions of this Subscription Agreement are severable and, in the event
that any court or officials of any regulatory agency of competent
jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Subscription Agreement shall, for
any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Subscription Agreement
and this Subscription Agreement shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of such provision,
had never been contained herein, so that such provisions would be valid,
legal and enforceable to the maximum extent possible, so long as such
construction does not materially adversely effect the economic rights of
either party hereto.
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f)
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All
communications hereunder shall be in writing and shall be mailed, hand
delivered, sent by a recognized overnight courier service such as Federal
Express, or sent via facsimile and confirmed by letter, to the party to
whom it is addressed at the following addresses or such other address as
such party may advise the other in
writing:
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To the
Company: as set forth on the signature page hereto.
To
Investor: as set forth on the signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it is
addressed.
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g)
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This
Agreement shall be governed by and interpreted in accordance with the laws
of the State of New York for contracts to be wholly performed in such
state and without giving effect to the principles thereof regarding the
conflict of laws. To the extent determined by such court, the
prevailing party shall reimburse the other party for any reasonable legal
fees and disbursements incurred in enforcement of, or protection of, any
of its rights under this Agreement.
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If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this letter.
COMPANY:
CPI
AEROSTRUCTURES, INC.
By:
Name:
Its:
Address for
Notice:
CPI
Aerostructures, Inc.
00 Xxxxxxxxx Xxxx.,
Xxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
Telephone:
(000) 000-0000
With a
copy to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn.: Xxxx
Xxxxxx, Esq.
INVESTOR:
Number of
Shares:____________
By:
Name:
Its:
Purchase
Price per Share: $7.80
Aggregate Purchase
Price:_______
Name and address for
notice:
DWAC
Instructions:
Name of
DTC Participant:
DTC
Participant Number:
Account
Number:
