Exhibit 10.2
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made as of the 20th
day of July, 2006, by and between XXXXXXXX XXXXXXX ACQUISITION CORPORATION, a
Delaware corporation (the "Company"), and XXXXX X. XXXXXXXXXX ("Purchaser").
WHEREAS, the Company desires to issue, and Purchaser desires to
acquire, stock of the Company as herein described, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. PURCHASE AND SALE OF STOCK. Purchaser hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to Purchaser, an aggregate of
forty-five thousand (45,000) shares of the Common Stock of the Company (the
"Stock") at $0.000445 per share, for an aggregate purchase price of $20.02. The
closing hereunder, including payment for and delivery of the Stock, shall occur
at the offices of the Company immediately following the execution of this
Agreement, or at such other time and place as the parties may mutually agree.
2. LIMITATIONS ON TRANSFER. Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Stock except in
compliance with applicable securities laws.
3. RESTRICTIVE LEGENDS. All certificates representing the Stock shall
have endorsed thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements between the
parties hereto):
(a) "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO TRANSFER, SALE OR
OTHER DISPOSITION OF THESE SHARES MAY BE MADE UNLESS A REGISTRATION STATEMENT
WITH RESPECT TO THESE SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
(b) Any legend required by appropriate blue sky officials.
4. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Stock, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Stock. Purchaser is
purchasing the Stock for investment for Purchaser's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Act").
(b) Purchaser understands that the Stock has not been registered
under the Act by reason of a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of Purchaser's investment
intent as expressed herein.
(c) Purchaser further acknowledges and understands that the Stock
must be held indefinitely unless the Stock is subsequently registered under the
Act or an exemption from such registration is available. Purchaser understands
that the certificate evidencing the Stock will be imprinted with a legend which
prohibits the transfer of the Stock unless the Stock is registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rule 144, under the
Act, as in effect from time to time, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions. Unless the Company registers
the stock under the Act, the Stock may be resold by Purchaser only in certain
limited circumstances subject to the provisions of Rule 144, which requires,
among other things: (i) the availability of certain public information about the
Company and (ii) the resale occurring following the required holding period
under Rule 144 after the Purchaser has purchased, and made full payment of
(within the meaning of Rule 144), the securities to be sold.
(e) Purchaser further understands that, at the time Purchaser wishes
to sell the Stock, there may be no public market upon which to make such a sale,
and that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, Purchaser would be precluded from selling the Stock under Rule 144
even if the minimum holding period requirement had been satisfied.
Notwithstanding Sections 4(d) and (e) hereof, Purchaser understands that he may
be considered a promoter of the Company and understands that it is the position
of the Securities and Exchange Commission ("SEC") that promoters or affiliates
of a blank check company and their transferees, both before and after a business
combination, would act as an "underwriter" under the Securities Act of 1933 when
reselling the securities of a blank check company. Accordingly, the SEC believes
that those securities can be resold only through a registered offering and that
Rule 144 would not be available for those resale transactions despite technical
compliance with the requirements of Rule 144.
(f) Purchaser represents that Purchaser is an "accredited investor"
as that term is defined in Rule 501 of Regulation D promulgated by the
Securities and Exchange Commission under the Act.
5. NO EMPLOYMENT RIGHTS. This Agreement is not an employment contract
and nothing in this Agreement shall affect in any manner whatsoever the right or
power of the Company (or a parent or subsidiary of the Company) to terminate
Purchaser's employment or other relationship with the company for any reason at
any time, with or without cause and with or without notice.
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6. MISCELLANEOUS.
(a) NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed facsimile if sent
during normal business hours of the recipient, and if not sent during normal
business hours of the recipient, then on the next business day, (iii) five
(5) calendar days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) business day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be
sent to the other party hereto at such party's address hereinafter set forth
on the signature page hereof, or at such other address as such party may
designate by ten (10) days advance written notice to the other party hereto.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer herein set forth, be binding upon Purchaser,
Purchaser's successors, and assigns.
(c) ATTORNEYS' FEES; SPECIFIC PERFORMANCE. Purchaser shall
reimburse the Company for all costs incurred by the Company in enforcing the
performance by Purchaser of, or protecting the Company's rights under, any
part of this Agreement, including reasonable costs of investigation and
attorneys' fees.
(d) GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflicts of law thereof. The parties agree that any action brought by
either party to interpret or enforce any provision of this Agreement shall be
brought in, and each party agrees to, and does hereby, submit to the
jurisdiction and venue of, the appropriate state or federal court for the
district encompassing the Company's principal place of business.
(e) FURTHER EXECUTION. The parties agree to take all such further
action(s) as may be reasonably necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary
to obtain any governmental approval in connection with, or otherwise qualify
the issuance of the securities that are the subject of, this Agreement.
(f) INDEPENDENT COUNSEL. Purchaser acknowledges that this
Agreement has been prepared on behalf of the Company by Xxxxxxx XxXxxxxxx
LLP, counsel to the Company and that Xxxxxxx XxXxxxxxx LLP does not
represent, and is not acting on behalf of, Purchaser. Purchaser has been
provided with an opportunity to consult with Purchaser's own counsel with
respect to this Agreement.
(g) ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes and merges all prior agreements or understandings,
whether written or oral. This Agreement may not be amended, modified or
revoked, in whole or in part, except by an agreement in writing signed by
each of the parties hereto.
(h) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith.
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In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXX XXXXXXX ACQUISITION CORPORATION
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
Title: President and Chief Executive Officer
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
PURCHASER:
/s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Address:
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