SUBSCRIPTION AGREEMENT
Xxxxxx
Technologies, Inc.
0 Xxxx
Xxxx Xxxxx, Xxxxx 0000
Xxxxx
Xxxxx, XX 00000
Gentlemen:
The
undersigned (the “Purchaser”) hereby
confirms its agreement with you as follows:
1. This
Subscription Agreement, including the Terms and Conditions For Purchase of
Shares attached hereto as Annex I
(collectively, this “Agreement”) is made
as of the date set forth below between Xxxxxx Technologies, Inc., a New York
corporation (the “Company”), and the
Purchaser.
2. The
Company has authorized the sale and issuance to certain investors of up to an
aggregate of 3,870,000 shares (individually, a “Share” and collectively, the
“Shares”) of
its common stock, par value $0.01 per share (the “Common Stock”) for a
purchase price of $1.15 per Share (the “Purchase
Price”).
3. The
offering and sale of the Shares (the “Offering”) are being
made pursuant to (a) an effective Registration Statement on Form S-3, File No.
333-151973 (including the Prospectus contained therein (the “Base Prospectus”),
the “Registration
Statement”), filed by the Company with the Securities and Exchange
Commission (the “Commission”), (b) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule
405 under the Securities Act of 1933, as amended (the “Act”)), that have
been or will be filed with the Commission and delivered to the Purchaser on or
prior to the date hereof and (c) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”)
containing certain supplemental information regarding the Shares and terms of
the Offering that will be filed with the Commission and delivered to the
Purchaser (or made available to the Purchaser by the filing by the Company of an
electronic version thereof with the Commission), along with the Company’s
counterpart to this Agreement and (d) if the Company has filed an abbreviated
registration statement to register additional securities pursuant to Rule 462(b)
(the “462(b)
Registration Statement”), then any reference herein to the Registration
Statements shall also be deemed to include such 462(b) Registration
Statement.
4. The
Company and the Purchaser agree that the Purchaser will purchase from the
Company and the Company will issue and sell to the Purchaser the Shares set
forth below for the aggregate purchase price set forth below. The
Shares shall be purchased pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and
incorporated herein by this reference as if fully set forth
herein. The Purchaser acknowledges that the Offering is not being
underwritten by the placement agent (the “Placement Agent”)
named in the Prospectus Supplement and that there is no minimum offering
amount.
5. The
manner of settlement of the Shares purchased by the Purchaser shall be as
follows:
Delivery
versus payment (“DVP”) through the
Depository Trust Company (“DTC”) (i.e., at the
Closing (as defined in Section 3.1 of Annex I) , the Company shall issue Shares
registered in the Purchaser’s name and address as set forth below and released
by Continental Stock Transfer & Trust Company (the “Transfer Agent”)
directly to the account(s) at Xxxx Capital Partners (“Xxxx Capital”)
identified by the Purchaser; upon receipt of such Shares, Xxxx Capital shall
promptly electronically deliver such shares to the Purchaser, and simultaneously
therewith payment shall be made by Xxxx Capital by wire transfer to the Company)
NO LATER THAN ONE (1) BUSINESS
DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE PURCHASER AND THE COMPANY, THE
PURCHASER SHALL:
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(I)
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NOTIFY
XXXX CAPITAL OF THE ACCOUNT OR ACCOUNTS AT XXXX CAPITAL TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY SUCH PURCHASER;
AND
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(II)
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CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT XXXX CAPITAL TO BE CREDITED WITH THE
SHARES BEING PURCHASED BY THE PURCHASER HAVE A MINIMUM BALANCE EQUAL TO
THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE
PURCHASER.
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IT
IS THE PURCHASER’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DVP IN A TIMELY MANNER. IF THE PURCHASER DOES
NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE PROPER
ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED
AT CLOSING TO THE PURCHASER OR THE PURCHASER MAY BE EXCLUDED FROM THE OFFERING
ALTOGETHER.
6. The
Purchaser represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or persons known to it to be affiliates of the Company, (b) it is
not a Financial Industry Regulatory Authority, Inc. (“FINRA”) member or an
Associated Person (as such term is defined under the FINRA Membership and
Registration Rules Section 1011) as of the Closing, and (c) neither the
Purchaser nor any group of Purchasers (as identified in a public filing made
with the Commission) of which the Purchaser is a part in connection with the
Offering, acquired, or obtained the right to acquire, 20% or more of the Common
Stock (or securities convertible into or exercisable for Common Stock) or the
voting power of the Company on a post-transaction basis. Exceptions:
_______________________________________________. (If no exceptions,
write “none.” If left blank, response will be deemed to be
“none.”)
-2-
7. The
Purchaser represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, dated September 5, 2008, which is a part
of the Company’s Registration Statement, the documents incorporated by reference
therein and any free writing prospectus (collectively, the “Disclosure Package”),
prior to or in connection with the receipt of this Agreement. The
Purchaser acknowledges that, prior to the delivery of this Agreement to the
Company, the Purchaser will receive certain additional information regarding the
Offering, including pricing information (the “Offering
Information”). Such information may be provided to the Purchaser by any
means permitted under the Act, including the Prospectus Supplement, a free
writing prospectus and oral communications.
8. No
offer by the Purchaser to buy the Shares will be accepted and no part of the
Purchase Price will be delivered to the Company until the Purchaser has received
the Offering Information and the Company has accepted such offer by
countersigning a copy of this Agreement, and any such offer may be withdrawn or
revoked, without obligation or commitment of any kind, at any time prior to the
Company (or Xxxx Capital on behalf of the Company) sending (orally, in writing
or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of any kind
until the Purchaser has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the
Company.
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Number
of Shares:
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Purchase
Price Per Share: $
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Aggregate
Purchase Price: $
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Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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Dated
as of: July __, 2009
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PURCHASER
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By:
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Print Name:
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Title:
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Address:
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Agreed
and Accepted
this ___
day of July __, 2009:
XXXXXX
TECHNOLOGIES, INC.
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By:
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Title:
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-4-
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization
and Sale of the Shares. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of the Shares.
2. Agreement
to Sell and Purchase the Shares; Placement Agent.
2.1 At
the Closing (as defined in Section 3.1),
the Company will sell to the Purchaser, and the Purchaser will purchase from the
Company, upon the terms and conditions set forth herein, the respective number
of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the
“Signature
Page”) for the aggregate purchase price therefor set forth on the
Signature Page.
2.2 Purchaser
acknowledges that the Company has agreed to pay Xxxx Capital Partners, LLC (the
“Placement
Agent” or “Xxxx
Capital”) a fee (the “Placement Fee”) in
respect of the sale of Shares to the Purchaser.
2.3 The
Company has entered into a Placement Agent Agreement, dated July___,
2009 (the “Placement
Agreement”), with the Placement Agent that contains certain
representations, warranties, covenants and agreements of the Company that may be
relied upon by the Purchaser, which shall be a third party beneficiary
thereof. The Company confirms that neither it nor any other person
acting on its behalf has provided the Purchaser 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
Form 8-K filed with the Commission in connection with the
Offering. The Company understands and confirms that the Purchaser
will rely on the foregoing representations in effecting transactions in
securities of the Company.
3. Closings
and Delivery of the Shares and Funds.
3.1 Closing. The
completion of the purchase and sale of the Shares (the “Closing”) shall occur
at a place and time (the “Closing Date”) to be
specified by the Company and the Placement Agent, and of which the Purchaser
will be notified in advance by the Placement Agent, in accordance with Rule
15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”). At the Closing, (a) the Company shall cause the
Transfer Agent to deliver to the Purchaser the number of Shares set forth on the
Signature Page registered in the name of the Purchaser or, if so indicated on
the Purchaser Questionnaire attached hereto as Exhibit A, in
the name of a nominee designated by the Purchaser and, (b) the aggregate
purchase price for the Shares being purchased by the Purchaser will be delivered
by or on behalf of the Purchaser to the Company.
3.2 Conditions
to the Company’s Obligations. The Company’s obligation to
issue and sell the Shares to the Purchaser shall be subject to: (i) the receipt
by the Company of the purchase price for the Shares being purchased hereunder as
set forth on the Signature Page and (ii) the accuracy of the representations and
warranties made by the Purchaser and the fulfillment of those undertakings of
the Purchaser to be fulfilled prior to the Closing Date.
I-1
3.3 Conditions
to the Purchaser’s Obligations. The Purchaser’s obligation to
purchase the Shares will be subject to the condition that the Placement Agent
shall not have: (a) terminated the Placement Agreement pursuant to the terms
thereof or (b) determined that the conditions to the closing in the Placement
Agreement have not been satisfied.
3.4 Delivery
of Funds. The Purchaser has elected to settle the Shares
purchased by such Purchaser by delivery versus payment through the Depository
Trust Company (“DTC”); no later than
one (1) business day after the execution of this Agreement by the Purchaser and
the Company, the Purchaser shall confirm that the account or accounts at Xxxx
Capital to be credited with the Shares being purchased by the Purchaser have a
minimum balance equal to the aggregate purchase price for the Shares being
purchased by the Purchaser.
3.5 Delivery
of Shares. The Purchaser has elected to settle the Shares
purchased by such Purchaser by delivery versus payment through DTC; no later
than one (1) business day after the execution of this Agreement by the Purchaser
and the Company, the Purchaser shall notify Xxxx Capital of the account or
accounts at Xxxx Capital to be credited with the Shares being purchased by such
Purchaser. On the Closing Date, the Company shall deliver the Shares
to the Purchaser through DTC directly to the account(s) at Xxxx Capital
identified by the Purchaser and simultaneously therewith payment shall be made
by Xxxx Capital by wire transfer to the Company.
4. Representations,
Warranties and Covenants of the Purchaser. The Purchaser
acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The
Purchaser (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an
investment decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company and investments in comparable
companies, (b) has answered all questions on the Signature Page and the
Purchaser Questionnaire and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) in
connection with its decision to purchase the number of Shares set forth on the
Signature Page, has received and is relying solely upon (i) the Disclosure
Package and the documents incorporated by reference therein and (ii) the
Offering Information.
4.2 (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agent that would permit an offering of
any of the Shares, or possession or distribution of offering materials in
connection with the issuance of the Shares in any jurisdiction outside the
United States where action for that purpose is required, (b) if the Purchaser is
outside the United States, it will comply with all applicable laws and
regulations in each foreign jurisdiction in which it purchases, offers, sells or
delivers Shares or has in its possession or distributes any offering material,
in all cases at its own expense and (c) the Placement Agent is not authorized to
make and has not made any representation, disclosure or use of any information
in connection with the issuance, placement, purchase and sale of the Shares,
except as set forth or incorporated by reference in the Base Prospectus or the
Prospectus Supplement.
I-2
4.3 (a)
The Purchaser has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Purchaser enforceable against the Purchaser in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
4.4 The
Purchaser understands that nothing in this Agreement, the Prospectus or any
other materials presented to the Purchaser in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. The
Purchaser has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares.
4.5 Since
the time at which the Placement Agent first contacted the Purchaser about the
Offering, the Purchaser has not engaged in any purchases or sales of the
securities of the Company (including, without limitation, any Short Sales (as
defined herein) involving the Company’s securities), and has not violated its
obligations of confidentiality. The Purchaser covenants that it will
not engage in any purchases or sales of the securities of the Company (including
Short Sales) or disclose any information about the contemplated Offering (other
than to its advisors that are under a legal obligation of confidentiality) prior
to the time that the transactions contemplated by this Agreement are publicly
disclosed. The Purchaser agrees that it will not use any of the
Shares acquired pursuant to this Agreement to cover any short position in the
Common Stock if doing so would be in violation of applicable securities
laws. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sales contracts, options,
puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule
16a-1(h) under the Exchange Act) and similar arrangements (including on a total
return basis), and sales and other transactions through non-US broker dealers or
foreign regulated brokers.
4.6 The
investment in the Shares is being made in the ordinary course of the Purchaser’s
business. In connection with the investment in the Shares, the
Purchaser is not acting as a market intermediary and the Purchaser has no
current understanding or arrangement for the distribution of the
Shares.
5. Survival
of Representations, Warranties and Agreements; Third Party
Beneficiary. Notwithstanding any investigation made by any
party to this Agreement or by the Placement Agent, all covenants, agreements,
representations and warranties made by the Company and the Purchaser herein will
survive the execution of this Agreement, the delivery to the Purchaser of the
Shares being purchased and the payment therefor. The Placement Agent
shall be a third party beneficiary with respect to the representations,
warranties and agreements of the Purchaser in Section 4
hereof.
I-3
6. Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside the
United States, by International Federal Express or facsimile, and will be deemed
given (i) if delivered by first-class registered or certified mail domestic,
three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed and (iv) if
delivered by facsimile, upon electric confirmation of receipt and will be
delivered and addressed as follows:
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(a)
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if
to the Company, to:
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Xxxxxx
Technologies, Inc.
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0
Xxxx Xxxx Xxxxx, Xxxxx 0000
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Xxxxx
Xxxxx, XX 00000
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Attention: Xxxxx
Xxxxxx
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Facsimile:
(000) 000-0000
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with
copies to:
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Blank
Rome, LLP
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000
Xxxxxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention: Ethan
Seer, Esq.
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Facsimile: (000)
000-0000
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(b) if
to the Purchaser, at its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in
writing.
7. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Purchaser.
8. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
9. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
10. Governing
Law. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of New York, without giving
effect to the principles of conflicts of law that would require the application
of the laws of any other jurisdiction.
11. Counterparts. This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts have
been signed by each party hereto and delivered to the other
parties. The Company and the Purchaser acknowledge and agree that the
Company shall deliver its counterpart to the Purchaser along with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
I-4
12. Confirmation
of Sale. The Purchaser acknowledges and agrees that the
Purchaser’s receipt of the Company’s counterpart to this Agreement, together
with the Prospectus Supplement (or the filing by the Company of an electronic
version thereof with the Commission), shall constitute written confirmation of
the Company’s sale of Shares to the Purchaser.
13. Press
Release. The Company and the Purchaser agree that the Company
shall issue a press release announcing the Offering and disclosing all material
terms and conditions of the Offering prior to the opening of the financial
markets in New York City on the business day immediately after the date
hereof.
14. Termination. In
the event that the Placement Agreement is terminated by the Placement Agent
pursuant to the terms thereof, this Agreement shall terminate without any
further action on the part of the parties hereto.
I-5
EXHIBIT
A
XXXXXX
TECHNOLOGIES, INC.
PURCHASER
QUESTIONNAIRE
Pursuant
to Section 3 of Annex I to the
Agreement, please provide us with the following information:
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1.
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The
exact name that your Shares are to be registered in. You may use a nominee
name if appropriate:
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2.
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The
relationship between the Purchaser and the registered holder listed in
response to item 1 above:
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3.
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The
mailing address of the registered holder listed in response to item 1
above:
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4.
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The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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5.
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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6.
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DTC
Participant Number:
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7.
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Name
of Account at DTC Participant being credited with the
Shares:
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8.
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Account
Number at DTC Participant being credited with the Shares:
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A-1
