6,200,000 Shares YOUBET.COM, INC. Common Stock PLACEMENT AGENCY AGREEMENT
Exhibit 1.1
6,200,000 Shares
XXXXXX.XXX, INC.
Common Stock
December 15, 2006
THINKEQUITY PARTNERS LLC
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx.xxx, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell up to an aggregate of 6,200,000 shares (the “Shares”)
of the Company’s common stock, $0.001 par value per share (the “Common Stock”) to certain investors
(each an “Investor” and, collectively, the “Investors”). The Company desires to engage ThinkEquity
Partners LLC (the “Placement Agent”) as its exclusive placement agent as set forth herein in
connection with such issuance and sale. The Shares are more fully described in the Registration
Statement (as hereinafter defined).
(a) The Company hereby engages the Placement Agent to act as its exclusive placement agent in
connection with the issuance and sale by the Company of Shares to the Investors, and the Placement
Agent hereby agrees, as agent of the Company, to use its best efforts to solicit offers to purchase
the Shares from the Company upon the terms and conditions set forth in the Prospectus (as
hereinafter defined). Upon the occurrence of the Closing (as hereinafter defined), the Company
shall pay to the Placement Agent, by wire transfer of immediately available funds payable to the
order of the Placement Agent, to an account designated by the Placement Agent, an aggregate of five
and one-half percent (5.5%) of the gross proceeds received by the Company from its sale of the
Shares. Prior to the earlier of (i) the date on which this Agreement is terminated, or (ii) the
Closing Date (as hereinafter defined), the Company shall not, without the prior written consent of
the Placement Agent, solicit or accept offers to purchase Shares (other than pursuant to the
exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date
hereof) otherwise than through the Placement Agent in accordance herewith.
(b) The Company expressly acknowledges and agrees that the Placement Agent’s obligations
hereunder are on a best efforts basis and this Agreement shall not give rise to a commitment by the
Placement Agent or any of its affiliates to underwrite or purchase any of the Shares or otherwise
provide any financing, and the Placement Agent shall have no authority to (and agrees not to
purport to) bind the Company in respect of the sale of any Shares. The sale of the Shares shall be
made pursuant to the subscription terms in the form included as Exhibit A hereto (the
"Subscription Terms”). The
Company shall have the sole right to accept offers to purchase the Shares and may, at the
Company’s sole discretion, reject any such offer in whole or in part, and, except as set forth in
Section 4 hereof, in no event shall fees be payable by the Company on any proposed purchase which
is rejected for any reason or which otherwise does not close for any reason. Notwithstanding the
foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may,
solely at their discretion and without any obligation to do so, purchase Shares as principals;
provided, however, that any such purchase by the Placement Agent (or its affiliates) shall be fully
disclosed to the Company and shall be subject to the prior approval of the Company, at the
Company’s sole discretion, in accordance with the immediately preceding sentence.
(c) Concurrently with the execution and delivery of this Agreement, the Company, the Placement
Agent and Xxxxx Fargo Bank, N.A., as escrow agent (the “Escrow Agent”), shall enter into an escrow
agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will
be established for the benefit of the Company and the Investors who settle their purchases through
the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing Date, each such
Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of
Shares such Investor has agreed to purchase, and (y) the purchase price per share as set forth on
the cover page of the Prospectus (the “Purchase Amount”). The aggregate of the Purchase Amounts
deposited by all of the Investors is herein referred to as the “Escrow Funds.” On the Closing Date,
the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company, the
Placement Agent and the Escrow Agent as provided in the Escrow Agreement, and the Company shall
cause its transfer agent to deliver the Shares purchased by such Investors, which delivery shall be
made through the facilities of The Depository Trust Company’s DWAC system.
(d) Payment of the purchase price for, and delivery of, the Shares shall be made at a closing
(the “Closing”) at the offices of Dow Xxxxxx PLLC, counsel for the Company, located at 0000 Xxx
Xxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.X. 00000-0000, at 10:00 a.m., Eastern Time, on the third or
fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended (collectively with the rules and regulations promulgated thereunder, the “Exchange Act”))
after the determination of the public offering price of the Shares (such date of payment and
delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be
deemed to have occurred simultaneously. No Shares which the Company has agreed to sell pursuant to
this Agreement and the Subscription Terms shall be deemed to have been purchased and paid for by an
Investor, or sold by the Company, until such Shares shall have been delivered to such Investor
against payment therefor by such Investor. If the Company shall default in its obligations to
deliver Shares to an Investor whose offer it has accepted, the Company shall indemnify and hold the
Placement Agent harmless against any loss, claim, or damage arising from or as a result of such
default by the Company.
(e) The Shares shall be registered in such names and in such denominations as the Placement
Agent shall request by written notice delivered to the Company at least two (2) business days prior
to the Closing Date and as shall have been agreed to by the Company pursuant to Section 1(b)
hereof.
2
declared effective by the Commission. Such registration statement, at any given time,
including amendments thereto at such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act at such time and the documents and information otherwise deemed to be a part thereof or
included therein by Rule 430A, 430B, or 430C under the Securities Act or otherwise pursuant to the
Securities Act at such time, is herein called the “Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule
462(b) Registration Statement” and, from and after the date and time of filing of the Rule 462(b)
Registration Statement, the term “Registration Statement” shall include the Rule 462(b)
Registration Statement.
The Company proposes to file with the Commission pursuant to Rule 424 under the Securities Act
a final prospectus supplement to the prospectus included in the Registration Statement in the form
heretofore delivered to the Placement Agent. Such prospectus included in the Registration
Statement at the time it was declared effective by the Commission or in the form in which it has
been most recently filed with the Commission on or prior to the date of this Agreement is
hereinafter called the “Base Prospectus.” Such prospectus supplement, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented) is hereinafter called the “Prospectus.” Any preliminary form of Prospectus which is
filed or used prior to filing of the Prospectus is hereinafter called a “Preliminary Prospectus.”
Any reference herein to the Base Prospectus, any Preliminary Prospectus, or the Prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act as of the date of such prospectus, and, in the case of any reference herein to the Prospectus,
also shall be deemed to include any documents incorporated by reference therein, and any
supplements or amendments thereto, filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Securities Act, and prior to the termination of the offering
of the Shares by the Placement Agent.
For purposes of this Agreement, all references to the Registration Statement, the Rule 462(b)
Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”). Any
reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of
the date of such Preliminary Prospectus or the Prospectus, as applicable. Any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any document filed under the Exchange Act, after the date of such Preliminary
Prospectus or the Prospectus, as applicable, and before the date of such amendment or supplement
and incorporated by reference in such Preliminary Prospectus or the Prospectus, as applicable; and
any reference to any amendment to the Registration Statement shall be deemed to include any annual
report of the Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement.
The Company and the transactions contemplated by this Agreement meet the requirements and
comply with the conditions for the use of Form S-3 under the Securities Act. The offering of the
Shares by the Company complies with the applicable requirements of Rule 415 under the Securities
Act. The Company has complied to the Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. The Registration Statement has become effective under
the Securities Act. No stop order preventing or suspending use of the Registration Statement, any
Preliminary Prospectus, or the Prospectus or the effectiveness of the Registration Statement, has
been issued by the Commission, and no proceedings for such purpose have been instituted, are
pending or are contemplated or, to the Company’s knowledge, threatened by the Commission.
3
(1) “Time of Sale” with respect to any Investor, means 5:00 p.m. Eastern Time
on the date of this Agreement.
(2) “Statutory Prospectus” as of any time means the Prospectus (including any
preliminary prospectus) immediately prior to the Time of Sale, including any
document incorporated by reference therein.
(3) “Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act (“Rule 433”), relating
to the Shares in the form filed or required to be filed with the Commission or, if
not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g) under the Securities Act.
(4) “Issuer General Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors as
identified on Schedule I hereto, and does not include a “bona fide electronic road
show” as defined in Rule 433.
4
(5) “Issuer Limited-Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Free Writing Prospectus, including any
“bona fide electronic road show” as defined in Rule 433, that is made available
without restriction pursuant to Rule 433(d)(8)(ii), even though not required to be
filed with the Commission.
5
6
7
8
Company’s rights in or to, or the validity, enforceability, or scope of, any Intellectual
Property licensed to the Company, and the Company is unaware of any facts which could form a
reasonable basis for any such claim; (v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company infringes or otherwise
violates any material patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any facts which could form a reasonable basis for any such
claim; (vi) to the Company’s knowledge, there is no material patent or patent application that
contains claims to the same patentable invention claimed by any issued patent owned or licensed by
the Company; and (vii) to the Company’s knowledge, no grounds exist to invalidate or render
unenforceable any material patent owned or licensed by the Company.
9
respect thereto, other than any which the Company is contesting in good faith and for which
adequate reserves have been provided and reflected in the Company’s financial statements included
in the Registration Statement and the Disclosure Package. Except as described in the Registration
Statement or the Disclosure Package, the Company does not have any material tax deficiency that has
been or, to the knowledge of the Company, might be asserted or threatened against it.
10
11
12
Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “Code”); and each “pension plan” for
which the Company would have any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
Any certificate signed by any officer of the Company and delivered to the Placement Agent or
to counsel for the Placement Agent in connection with the offering of the Shares shall be deemed a
representation and warranty by the Company to the Placement Agent as to the matters covered
thereby.
3. Covenants. The Company covenants and agrees with the Placement Agent as follows:
13
14
15
or exercisable or exchangeable for Common Stock (other than on a registration statement on
Form S-8 or any successor form) or (iii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (i), (ii), or (iii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise, without the prior written consent of
the Placement Agent (which consent may be withheld in its sole discretion), other than (A) the
Shares to be sold hereunder, (B) the issuance of stock options, shares of common stock, and other
awards pursuant to the Company’s 1995 Stock Option Plan, 1995 Stock Option Plan for Non-Employee
Directors, and the Equity Incentive Plan, (C) issuances of Common Stock upon the exercise of
options or warrants (either upon current terms thereof or upon subsequently amended terms but
excluding a general repricing) disclosed as outstanding in the Registration Statement or the
Disclosure Package; (D) the issuance by the Company of any shares of Common Stock as consideration
for mergers, acquisitions, other business combinations, or strategic alliances, occurring after the
date of this Agreement; provided that each recipient of shares pursuant to this clause (D) agrees
that all such shares remain subject to restrictions substantially similar to those contained in
this Section; or (E) the purchase or sale of the Company’s securities pursuant to a plan, contract,
or instruction that satisfies all of the requirements of Rule 10b5-1(c)(1)(i) that was in effect
prior to the date of this Agreement. Notwithstanding the foregoing, for the purpose of allowing
the Placement Agent to comply with NASD Rule 2711(f)(4), if (1) during the last 17 days of the
Lock-Up Period, the Company releases earnings results or publicly announces other material news or
a material event relating to the Company occurs, or (2) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date of release of the earnings
results or the public announcement regarding the material news or the occurrence of the material
event, as applicable, unless the Placement Agent waives, in writing, such extension. The Company
agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right
prior to the expiration of the Lock-Up Period other than pursuant to contractual obligations in
effect prior to the date of this Agreement.
16
(a) Filings with the Commission. The Prospectus and any Issuer Free Writing
Prospectus required to be filed under the Securities Act shall have been filed with the Commission
pursuant to Rule 424(b) or Rule 164, as the case may be, in the manner and within the time period
so required.
17
18
(1) each of the representations, warranties, and agreements of the Company in
this Agreement were true and correct in all material respects (except for those
representations and warranties which are qualified by materiality, in which case
such representations and warranties shall be true and correct in all respects) when
originally made and are true and correct in all material respects (except for those
representations and warranties which are qualified by materiality, in which case
such representations and warranties shall be true and correct in all respects) as of
the Time of Sale and the Closing Date; and the Company has complied in all material
respects with all agreements and satisfied all the conditions on its part required
under this Agreement to be performed or satisfied at or prior to the Closing Date;
(2) no stop order (i) suspending the effectiveness of the Registration
Statement or any part thereof, (ii) suspending the qualification of the Shares for
offering or sale, or (iii) suspending or preventing the use of the Disclosure
Package, shall have been issued, and no proceedings for that purpose shall be
pending or, to their knowledge, threatened by the Commission or any state or
regulatory body; and
(3) the signers of said certificate have reviewed the Registration Statement
and the Disclosure Package, and any amendments thereof or supplements thereto (and
any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Disclosure Package), and (A) (i) each part of the Registration
Statement and any
19
amendment thereof do not and did not contain when the Registration Statement
(or such amendment) became effective, any untrue statement of a material fact or
omit to state, and did not omit to state when the Registration Statement (or such
amendment) became effective, any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) as of the Time of
Sale, neither the Disclosure Package nor any individual Issuer Free Writing
Prospectus, when considered together with the Disclosure Package, contained any
untrue statement of material fact or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading and (iii) the Prospectus, as amended or supplemented, does not
and did not contain, as of its issue date, any untrue statement of material fact or
omit to state and did not omit to state as of such date, a material fact necessary
to make the statements therein, in light of the circumstances under which they were
made, not misleading, and (B) since the Time of Sale, there has occurred no event
required to be set forth in an amendment or supplement to the Registration Statement
or the Disclosure Package which has not been so set forth and there has been no
document required to be filed under the Exchange Act that upon such filing would be
deemed to be incorporated by reference into the Disclosure Package that has not been
so filed.
(m) The NASDAQ. The Shares shall have been listed and authorized for trading on the NASDAQ.
All opinions, letters, evidence, and certificates mentioned above or elsewhere in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Placement Agent.
20
of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, claim, or liability, to which, jointly or severally, the Placement Agent
or any such person may become subject under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, the common law or otherwise, (including in settlement of any
litigation, if such settlement is effected with the written consent of the Company), insofar as
such loss, damage, claim, or liability (or actions in respect thereof as contemplated below) arises
out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein not misleading; (ii)
any untrue statement or alleged untrue statement of a material fact contained in the Disclosure
Package, the Prospectus (or any amendment or supplement thereto including any documents filed under
the Exchange Act and deemed to be incorporated by reference into the Prospectus), any Issuer Free
Writing Prospectus or in any materials or information provided to Investors by, or with the written
approval of, the Company in connection with the marketing of the offering of the Common Stock
(“Marketing Materials”), including any roadshow or investor presentations made to Investors by the
Company (whether in person or electronically) or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading; and, in the case of (i) and
(ii) above, to reimburse the Placement Agent and each such controlling person for any and all
reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are
incurred by the Placement Agent or such controlling person in connection with investigating,
defending, settling, compromising, or paying any such loss, claim, damage, liability, expense, or
action, (iii) any untrue statement or alleged untrue statement made by the Company in Section
3 hereof or the failure by the Company to perform when and as required any agreement or
covenant contained herein, or (iv) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials provided to Investors by or with the written
approval of the Company or based upon written information furnished by or on behalf of the Company
in conformity with the form and substance of such information as furnished including, without
limitation, slides, videos, films, or tape recordings used in any road show or investor
presentations made to Investors by the Company (whether in person or electronically) or in
connection with the marketing of the Shares; provided, however, that the foregoing indemnity shall
not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent,
it arises out of or is based upon any untrue statement or alleged untrue statement of a material
fact contained in or omitted from the Registration Statement, the Disclosure Package, or any such
amendment or supplement, any Issuer Free Writing Prospectus, or in any Marketing Materials, in
reliance upon and in conformity with information concerning the Placement Agent furnished in
writing by or on behalf of the Placement Agent to the Company expressly for use therein, which
information the parties hereto agree is limited to the Placement Agent Information.
21
stated therein or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading, and in the case of each of (i) and (ii) above, to the
extent but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the Disclosure Package (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in
conformity with information concerning the Placement Agent furnished in writing by or on behalf of
the Placement Agent to the Company expressly for use therein, and to reimburse the Company, or any
such director, officer, or controlling person for any legal and other expense reasonably incurred
(including reasonable fees and disbursements of counsel) by the Company, or any such director,
officer or controlling person in connection with investigating, defending, settling, compromising,
or paying any such loss, claim, damage, liability, expense or action; provided, that the parties
hereto hereby agree that such written information provided by the Placement Agent consists solely
of the Placement Agent Information. Notwithstanding the provisions of this Section 6(b), in no
event shall any indemnity by the Placement Agent under this Section 6(b) exceed the total
compensation received by Placement Agent in accordance with Section 1(b).
22
intention to settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened Proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission of fault or
culpability or a failure to act by or on behalf of such indemnified party.
23
Act, and (iii) the issuance and delivery of the Shares. The Company and the Placement Agent
agree promptly to notify each other of the commencement of any Proceeding against it and, in the
case of the Company, against any of the Company’s officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration Statement or the Disclosure
Package.
8. Termination. (a) The Placement Agent shall have the right to terminate this Agreement by
giving notice as hereinafter specified at any time at or prior to the Closing Date, without
liability on the part of the Placement Agent to the Company, if (i) prior to delivery and payment
for the Shares (A) trading in securities generally shall have been suspended on or by the New York
Stock Exchange, the AMEX, or the NASDAQ Global or Capital Market, (each, a “Trading Market”), (B)
trading in the Common Stock of the Company shall have been suspended on any exchange, in the
over-the-counter market or by the Commission, (C) a general moratorium on commercial banking
activities shall have been declared by federal or New York state authorities, (D) there shall have
occurred any outbreak or material escalation of hostilities or acts of terrorism involving the
United States or there shall have been a declaration by the United States of a national emergency
or war, (E) there shall have occurred any other calamity or crisis or any material change in
general economic, political, or financial conditions in the United States or elsewhere, if the
effect of any such event specified in clause (D) or (E), in the judgment of the Placement Agent, is
material and adverse and makes it impractical or inadvisable to proceed with the completion of the
sale of and payment for the Shares on the Closing Date on the terms and in the manner contemplated
by this Agreement and the Disclosure Package, (ii) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Disclosure Package, there has
been any Material Adverse Effect or the Company shall have sustained a loss by strike, fire, flood,
earthquake, accident, or other calamity of such character that in the reasonable judgment of the
Placement Agent would, individually or in the aggregate, result in a Material Adverse Effect and
which would, in the reasonable judgment of the Placement Agent, make it impracticable or
inadvisable to proceed with the offering or the delivery of the Shares on the terms and in the
manner contemplated in the Disclosure Package, (iii) the Company shall have failed, refused, or
been unable to comply with the terms or perform any agreement or obligation of this Agreement or
any of the Subscription Terms, other than by reason of a default by the Placement Agent, or (iv)
any condition precedent to the Placement Agent’s obligations to perform hereunder is not fulfilled
or waived. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 4, Section 6, and Section 11 hereof shall at all times be effective
notwithstanding such termination.
(a) if to the Placement Agent, shall be delivered or sent by mail, telex, or facsimile
transmission to the Placement Agent as follows:
ThinkEquity Partners LLC
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Shez Bandukwala
Facsimile No.: 000-000-0000
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Shez Bandukwala
Facsimile No.: 000-000-0000
24
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
(b) if to the Company shall be delivered or sent by mail, telex or facsimile transmission to:
Xxxxxx.xxx, Inc., 0000 XxXxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: General Counsel,
(Facsimile No.: 818-668-2101), with a copy (which shall not constitute notice) to: Dow Xxxxxx,
PLLC, 0000 Xxx Xxxxxxxxx Xxx., XX, Xxxxxxxxxx, XX 00000-0000, Attention: Xxxxxx X. Xxxxx, Esq.,
(Facsimile No.: 202-776-2222). Any such notice shall be effective only upon receipt. Any party to
this Agreement may change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
11. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the state of New York, without giving effect to the conflicts of laws provisions thereof.
25
except as set forth specifically herein or contemplated hereby. No supplement, modification,
or waiver of this Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be deemed or constitute a
waiver of such right or remedy in the future. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether
similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly
provided.
15. Submission to Jurisdiction. Except as set forth below, no Proceeding may be commenced,
prosecuted, or continued in any court other than the courts of the state of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
and the Placement Agent each hereby consents to the jurisdiction of such courts and personal
service with respect thereto. The Company hereby waives all right to trial by jury in any
Proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company agrees that a final and no longer appealable judgment in any such
Proceeding brought in any such court shall be conclusive and binding upon the Company and may be
enforced in any other courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
[Signature Page Follows]
26
If the foregoing is in accordance with your understanding of the agreement between the Company
and the Placement Agent, kindly indicate your acceptance in the space provided for that purpose
below.
Very truly yours, XXXXXX.XXX, INC. |
||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Xxxx X. Xxxxxxx, Chief Financial Officer | ||||
Accepted as of the date first above written:
THINKEQUITY PARTNERS LLC
By:
|
/s/ Shez X. Xxxxxxxxxx
|
|||
Name:
|
Shez X. Xxxxxxxxxx
|
|||
Title:
|
Partner
|
27
Schedules and Exhibits
Schedule I:
|
Issuer General Free Writing Prospectuses | |
Schedule II:
|
Permitted Free Writing Prospectuses | |
Exhibit A:
|
Form of Subscription Terms | |
Exhibit B:
|
Form of Lock-Up Agreement | |
Exhibit C:
|
List of Directors and Executive Officers Executing Lock-Up Agreements | |
Exhibit D:
|
Pricing Information |
Schedule I
Issuer General Free Writing Prospectuses
None
SI-1
Schedule II
Permitted Free Writing Prospectuses
None
SII-1
Exhibit A
Form of Subscription Terms
Xxxxxx.xxx, Inc
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned (the “Investor”) hereby confirms and agrees with you as follows:
1. The subscription terms set forth herein (this “Subscription”) are made as of the date set
forth below between Xxxxxx.xxx, Inc., a Delaware corporation (the “Company”), and the Investor.
2. As of the Closing (as defined below) and subject to the terms and conditions hereof, the
Company and the Investor agree that the Investor will purchase from the Company, and the Company
will issue and sell to the Investor ,such number of shares of common stock, par value $0.001 per
share, of the Company (the “Common Stock”) as is set forth on the signature page hereto (the
“Signature Page”) for a purchase price of $[ ] per share (the “Shares”). The Investor
acknowledges that the offering is not a firm commitment underwriting and that there is no minimum
offering amount.
3. The completion of the purchase and sale of the Shares shall occur at a closing (the
"Closing”) which, in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended, is expected to occur on or about December [ ], 2006. At the Closing, (a) the
Company shall cause its transfer agent to release to the Investor the number of Shares being
purchased by the Investor and (b) the aggregate purchase price for the Shares being purchased by
the Investor will be delivered by or on behalf of the Investor to the Company. The provisions set
forth in Exhibit A hereto shall be incorporated herein by reference as if set forth fully
herein.
4. The offering and sale of the Shares are being made pursuant to the Registration Statement
and the Prospectus (as such terms are defined below). The Investor acknowledges that the Company
intends to enter into subscriptions in substantially the same form as this Subscription with
certain other investors and intends to offer and sell (the “Offering”) up to an aggregate of [
] shares of Common Stock pursuant to the Registration Statement and Prospectus. The Company
may accept or reject this Subscription or any one or more other subscriptions with other investors
in its sole discretion.
5. The Company has filed or shall file with the Securities and Exchange Commission (the
“Commission") a prospectus (the “Base Prospectus”), a preliminary prospectus supplement (the
“Preliminary Prospectus”) and a final prospectus supplement (collectively, the “Prospectus") with
respect to the registration statement (File No. 333-126131) (the “Registration Statement”)
reflecting the Offering, including all amendments thereto, the exhibits and any schedules thereto,
the documents otherwise deemed to be a part thereof or included therein by the rules and
regulations of the Commission (the “Rules and Regulations”) in conformity with the Securities Act
of 1933, as amended (collectively with the Rules and Regulations, the “Securities Act”), including
Rule 424(b) thereunder. The Investor hereby confirms that it has had full access to the
Registration Statement, the Base Prospectus, the Preliminary Prospectus, and the Company’s periodic
reports and other information incorporated by reference therein, and was able to read, review,
download, and print such materials.
6. The Company has entered into a Placement Agency Agreement (the “Placement Agreement”),
dated December [ ], 2006, with ThinkEquity Partners LLC (the “Placement Agent”), which will act
as the Company’s placement agent with respect to the Offering and receive a fee in connection with
the sale of the Shares. Capitalized terms used, but not otherwise defined, herein shall have the
meanings ascribed to such terms in the Placement Agreement.
7. The obligations of the Company and the Investor to complete the transactions contemplated
by this Subscription shall be subject to the following:
a. The Company’s obligation to issue and sell the Shares to the Investor shall be subject
to: (i) the acceptance by the Company of this Subscription (as may be indicated by the Company’s
execution of the Signature Page hereto), (ii) the receipt by the Company of the purchase price
for the Shares being purchased hereunder as set forth on the Signature Page, and (iii) the
accuracy of the representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.
b. The Investor’s obligation to purchase the Shares will be subject to the condition that
the Placement Agent shall not have: (i) terminated the Placement Agreement pursuant to the terms
thereof or (ii) determined that the conditions to closing in the Placement Agreement have not
been satisfied.
8. The Company hereby makes the following representations, warranties, and covenants to the
Investor:
a. The Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Subscription and otherwise to carry out its
obligations hereunder. The execution and delivery of this Subscription by the Company and the
consummation by it of the transactions contemplated hereunder have been duly authorized by all
necessary corporate action on the part of the Company. This Subscription, when accepted by the
Company, shall have been duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such 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).
b. The Company shall (i) before the opening of trading on the NASDAQ Capital Market on the
next trading day after the Closing, file a Form 8-K, disclosing all material aspects of the
transactions contemplated hereby and (ii) make such other filings and notices in the manner and
time required by the Commission with respect to the transactions contemplated hereby. The
Company shall not identify the Investor by name in any press release or public filing, or
otherwise publicly disclose the Investor’s name, without the Investor’s prior written consent,
unless required by law or the rules and regulations of any self-regulatory organization or
governmental authority to which the Company or its securities are subject.
9. The Investor hereby makes the following representations, warranties, and covenants to the
Company:
a. The Investor represents that (i) it has had full access to the Registration Statement,
the Base Prospectus, the Preliminary Prospectus, and the Company’s periodic reports and other
information incorporated by reference therein, prior to or in connection with its receipt of
this Subscription, (ii) it
is knowledgeable, sophisticated, and experienced in making, and is qualified to make,
decisions with respect to investments in securities representing an investment decision like
that involved in the purchase of the Shares, (iii) it does not have any agreement or
understanding, directly or indirectly, with any person or entity to distribute any of the
Shares, and (iv) it is not an affiliate of the Company as that term is defined under Rule 501(b)
of the Securities Act.
b. The Investor has the requisite power and authority to enter into this Subscription and
to consummate the transactions contemplated hereby. The execution and delivery of this
Subscription by the Investor and the consummation by it of the transactions contemplated
hereunder have been duly authorized by all necessary action on the part of the Investor. This
Subscription has been executed by the Investor and, when delivered in accordance with the terms
hereof, will constitute a valid and binding obligation of the Investor enforceable against the
Investor in accordance with its terms, except as such 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).
c. The Investor understands that nothing in this Subscription or any other materials
presented to the Investor in connection with the purchase and sale of the Shares constitutes
legal, tax, or investment advice. The Investor 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.
d. Neither the Investor nor any Person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor has, directly or
indirectly, engaged in any transactions in the securities of the Company (including, without
limitation, any Short Sales involving the Company’s securities) since the earlier to occur of
(i) the time that the Investor was first contacted by the Placement Agent or the Company with
respect to the transactions contemplated hereby and (ii) the date that is the tenth (10th)
trading day prior to the date the Investor executes this Subscription. “Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO
under the Securities Exchange Act of 1934, as amended (the “Exchange Act"), whether or not
against the box, and all types of direct and indirect stock pledges, forward sale 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-U.S. broker dealers or foreign regulated brokers.
The Investor covenants that neither it, nor any Person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor will engage in any
transactions in the securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Subscription are publicly disclosed.
e. The Investor represents that, except as set forth below, (i) 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, (ii) it is not a, and it has no direct or indirect
affiliation or association with any, NASD member or an Associated Person (as such term is
defined under the NASD Membership and Registration Rules Section 1011) as of the date the
Investor executes this Subscription, and (iii) neither it nor any group of investors (as
identified in a public filing made with the Commission) of which it is a member, acquired, or
obtained the right to acquire, 20% or more of the Common Stock (or securities convertible 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.”)
f. The Investor, if outside the United States, 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.
10. Notwithstanding any investigation made by any party to this Subscription, all covenants,
agreements, representations, and warranties made by the Company and the Investor herein will
survive the execution of this Subscription, the delivery to the Investor of the Shares being
purchased, and the payment therefor.
11. This Subscription may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
12. In case any provision contained in this Subscription 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.
13. This Subscription 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.
14. This Subscription may be executed in one 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.
15. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Subscription shall constitute written confirmation of the Company’s sale of
Shares to such Investor.
16. In the event that the Placement Agreement is terminated by the Placement Agent pursuant
to the terms thereof, this Subscription shall terminate without any further action on the part of
the parties hereto.
INVESTOR SIGNATURE PAGE
Number of Shares: |
||||
Purchase Price Per Share:
|
$ | |||||||
Aggregate Purchase Price:
|
$ | |||||||
Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
Dated as of: December ____, 2006
By: |
||||
Print Name: |
||||
Title: |
||||
Name in which Shares are to be registered: |
||||
Mailing Address: |
||||
Taxpayer Identification Number: |
||||
Agreed and Accepted this ___day of December 2006:
XXXXXX.XXX, INC.
By: |
||||
Title: |
||||
The sale of the shares purchased hereunder was made pursuant to a registration statement or in a
transaction in which a final prospectus would have been required to have been delivered in the
absence of Rule 172 promulgated under the Securities Act.
EXHIBIT A
TO BE COMPLETED BY INVESTOR
Delivery by electronic book-entry at The Depository Trust Company (“DTC”), registered in the
Investor’s name and address as set forth on the Signature Page of the Subscription to which this
Exhibit A is attached, and released by American Stock Transfer &Trust Company, the
Company’s transfer agent (the “Transfer Agent”), to the Investor at the Closing.
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained) |
||||||
DTC Participant Number | ||||||
Name of Account at DTC Participant being credited with the Shares |
||||||
Account Number at DTC Participant being credited with the Shares |
||||||
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE SUBSCRIPTION TO WHICH THIS
EXHIBIT A IS ATTACHED BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
(I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH
THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND |
||
(II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
Xxxxx Fargo Bank N.A.
ABA#: 000000000
BNF: Corporate Trust Clearing
A/C #: 0000000000
FFC: Escrow Account #00000000 Think Equity/Xxxxxx.xxx
Attn: Xxxxx Xxxxx (213-614-3352)
ABA#: 000000000
BNF: Corporate Trust Clearing
A/C #: 0000000000
FFC: Escrow Account #00000000 Think Equity/Xxxxxx.xxx
Attn: Xxxxx Xxxxx (213-614-3352)
Such funds shall be held in escrow pursuant to an escrow agreement entered into between Xxxxx
Fargo Bank, N.A. (the “Escrow Agent”), the Placement Agent, and the Company (the “Escrow
Agreement”) until the Closing and delivered by the Escrow Agent on behalf of the Investor to the
Company upon the satisfaction, in the sole judgment of the Company, of the conditions set forth in
Section 7(b) of the Subscription to which this Exhibit A is attached. The Company and the
Investor agree to indemnify and hold the Escrow Agent harmless from and against any and all losses,
costs, damages, expenses, and claims (including, without limitation, court costs and reasonable
attorneys fees) (“Losses”) with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it
is finally determined that such Losses resulted directly from the willful misconduct or gross
negligence of the Escrow Agent. Anything in this paragraph to the contrary notwithstanding, in no
event shall the Escrow Agent be liable for any special, indirect, or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has
been advised of the likelihood of such loss or damage and regardless of the form of action.
Exhibit B
Form of Lock-Up Agreement
November 30, 2006
THINKEQUITY PARTNERS LLC
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that you, as Placement Agent, propose to enter into the Placement
Agency Agreement (the “Placement Agreement”) with Xxxxxx.xxx, Inc., a Delaware corporation (the
“Company”), providing for the offering (the “Offering”) of shares (the “Shares”) of common stock,
par value $0.001 per share (the “Common Stock”), of the Company. Capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Placement Agreement.
In consideration of the foregoing, and in order to induce you to participate in the Offering,
and for other good and valuable consideration receipt of which is hereby acknowledged, the
undersigned hereby agrees that, without the Placement Agent’s prior written consent (which consent
may be withheld in the Placement Agent’s sole discretion), the undersigned will not, during the
period (the “Lock-Up Period”) beginning on the date hereof and ending on the earlier of 150 days
from the date above or on the date 90 days after the date of the final prospectus (including any
final prospectus supplement) to be used in confirming the sale of the Shares, (1) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock (including without
limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange Commission and securities
which may be issued upon exercise of a stock option or warrant), (2) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, (3) make any demand for or
exercise any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock, or (4) publicly announce an
intention to effect any transaction described in clause (1), (2), or (3) above.
Notwithstanding the foregoing, the restrictions set forth in clauses (1) and (2) above shall
not apply to (a) transfers (i) as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for
the direct or indirect benefit of the undersigned or the immediate family of the undersigned,
provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth
herein, and provided further that any such transfer shall not involve a disposition for value, or
(iii) with the Placement Agent’s prior written consent; (b) the acquisition or exercise of any
stock option issued pursuant to the Company’s existing stock option plan or employee stock purchase
plan, including any exercise effected by the delivery of Common Stock held by the undersigned; or
(c) the purchase or sale of the Company’s securities pursuant to a plan, contract, or instruction
that satisfies the requirements of Rule 10b5-1(c)(1)(i) that was in effect prior to the date
hereof. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by
blood, marriage, or adoption, not more remote than first cousin. None of the restrictions set
forth in this Lock-Up Agreement shall apply to Common Stock acquired in open market transactions.
For the purpose of allowing you to comply with NASD Rule 2711(f)(4), if (1) during the last 17
days of the Lock-Up Period, the Company releases earnings results or publicly announces other
material news or a material event relating to the Company occurs or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will
be extended until the expiration of the 18-day period beginning on the date of release of the
earnings results or the public announcement regarding the material news or the occurrence of the
material event, as applicable, unless the Placement Agent waives, in writing, such extension. The
undersigned hereby acknowledges that the Company has agreed not to accelerate the vesting of any
option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up
Period. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for
the registration or transfer of the securities described herein, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation or breach of this
Lock-Up Agreement.
The foregoing restrictions are expressly agreed to preclude the undersigned from engaging in
any hedging or other transaction which is designed to or reasonably expected to lead to or result
in a sale or disposition of the Common Stock even if such Common Stock would be disposed of by
someone other than the undersigned. Such prohibited hedging or other transactions would include
without limitation any short sale or any purchase, sale, or grant of any right (including without
limitation any put option or put equivalent position or call option or call equivalent position)
with respect to any of the Common Stock or with respect to any security that includes, relates to,
or derives any significant part of its value from such Common Stock.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs, or personal representatives of the undersigned.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common
Stock except in compliance with the foregoing restrictions.
The undersigned understands that, if the Placement Agreement does not become effective, or if
the Placement Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder,
the undersigned shall be released from all obligations under this Lock-Up Agreement.
This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
Very truly yours, | ||||||
Print Name: | ||||||
Print Title: | ||||||
Signature: | ||||||
Exhibit C
List of Directors and Executive Officers
Executing Lock-Up Agreements
Executing Lock-Up Agreements
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxx
X. Xxxxxxx Xxxx
X. Xxxx Xxxxxx
Xxxxxx X. Good
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxx
X. Xxxxxxx Xxxx
X. Xxxx Xxxxxx
Xxxxxx X. Good
Exhibit D
Pricing Information
Number of Shares to be Sold: 6,200,000
Offering Price: $3.25 per Share
Aggregate Placement Agency Fees: $1,108,250
Estimated Net Proceeds to the Company (exclusive of estimated expenses of the Company):
$19,041,750