Exhibit 99.1
SUBSCRIPTION AGREEMENT
FOR SERIES B PREFERRED STOCK AND COMMON STOCK
Xxxxxx Financial Group, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Gentlemen:
SECTION 1. Subscription.
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1.1 Xxxxxx Financial Group, Inc., a Delaware corporation (the "Company"),
is offering to you the opportunity to purchase shares of Series B Preferred
Stock of the Company (the "Series B Shares"), together with Common Stock of the
Company (the "Common Shares" and collectively with the Series B Shares, the
"Securities").
1.2 The undersigned (the "Subscriber") hereby subscribes for the purchase
of the Securities as set forth on the signature page hereto (the "Purchased
Securities"), for a price (the "Purchase Price") determined at the rate of $1000
for each Series B Share, with 1000 Common Shares (such subscription referred to
herein as the "Subscription"). The Purchase Price shall be allocated between the
Series B Shares and the Common Shares acquired by this Subscription as specified
by the Company on the signature page to this Agreement.
1.3 The Subscriber shall fully complete this Agreement, including
Appendices A and B attached hereto. Upon the execution hereof, the Subscriber
shall deliver to the Company (i) two executed copies of this Agreement, and (ii)
the Purchase Price which shall be paid by a check payable to the order of the
Xxxxxx Financial Group, Inc. or by wire transfer to the account specified by the
Company.
1.4 As soon as practicable after receipt of the foregoing items, the
Company shall notify the Subscriber whether the Subscription has been accepted
in whole or in part. If the Company accepts all or a portion of the
Subscription, this Agreement shall become effective, and the Company shall
promptly deliver to the Subscriber one fully-executed copy of this Agreement,
countersigned by the Company, and cause the issuance to Subscriber of the
Purchased Securities. If the Subscription is not accepted, the Purchase Price
will be promptly refunded to Subscriber, without interest.
SECTION 2. Representations and Warranties of the Company.
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The Company represents and warrants to the Subscriber that:
2.1 This Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
2.2 The Company has the power and authority to issue the Purchased
Securities, and, when issued in accordance herewith, the Purchased Securities
shall be fully paid and non-assessable.
SECTION 3. Representations and Warranties of the Subscriber.
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The Subscriber represents and warrants to the Company that:
3.1 This Agreement has been duly authorized, executed and delivered by the
Subscriber, and constitutes a legal, valid and binding obligation of the
Subscriber, enforceable in accordance with its terms.
3.2 The Subscriber has received from the Company a copy of the Certificate
of Designations of the Series B Shares and has had the opportunity to review
such document with its counsel or other financial advisors.
3.3 The Subscriber has knowledge and experience in financial and business
matters sufficient to enable it to evaluate the merits and risks of an
investment in the Purchased Securities.
3.4 The Subscriber is acquiring the Purchased Securities hereunder for its
own account, solely for investment and not with a view to the resale or
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
3.5 The Subscriber understands that its acquisition of the Purchased
Securities is an illiquid and a long-term investment; and, without impairing its
financial condition, it is able to hold the Purchased Securities for an
indefinite period of time and would be able to suffer a complete loss of its
investment without undue financial hardship.
3.6 The Subscriber has had an opportunity to ask questions of and receive
answers from the Company and its officers concerning the terms and conditions of
the Purchased Securities and has had an opportunity to obtain additional
information from the Company to the extent deemed necessary or advisable by the
Subscriber in order to verify the accuracy of the information obtained. The
Subscriber has, to the extent deemed necessary by the Subscriber, consulted with
its own advisors (including the Subscriber's attorney, accountant or investment
advisor) regarding the Subscriber's investment in the Purchased Securities and
understands the significance and effect of its representations, warranties,
acknowledgments and agreements set forth in this Agreement.
3.7 The Subscriber has reviewed copies of the public filings of the
Company, including those on Forms 10-KSB and 10-QSB. The Subscriber has, to the
extent deemed necessary by the Subscriber, completed due diligence and an
independent investigation concerning the Company and the terms and conditions of
the sale of the Purchased Securities contemplated hereby.
3.8 The Subscriber acknowledges that neither the Company, nor any of its
officers, representatives or affiliates, nor any other person or entity, has
made any representations or warranties with respect to the Company, its business
or the Purchased Securities other than as set forth herein.
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3.9 The Subscriber understands that the Purchased Securities have not been
registered under the Securities Act in reliance upon an exemption from the
registration requirements of the Securities Act pursuant to Section 4(2)
thereof, that the Purchased Securities have not been registered under applicable
state securities laws, and that the Purchased Securities may not be sold or
otherwise disposed of unless registered under the Securities Act and applicable
state securities laws (the Company being under no obligation to so register such
Purchased Securities) or exempted from registration. The Subscriber further
understands that the exemption from registration afforded by Rule 144
promulgated under the Securities Act is not presently available with respect to
the Purchased Securities.
3.10 The Subscriber is an "Accredited Investor" as such term is defined in
Rule 501 of Regulation D promulgated under the Securities Act and has accurately
completed Appendix A to this Agreement.
3.11 The Subscriber acknowledges that neither the Company nor any person or
entity acting on its behalf has offered to sell any of the Purchased Securities
to the Subscriber by means of any form of general solicitation or advertising,
including without limitation (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media, or
broadcast over television or radio, and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
SECTION 4. General.
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4.1 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered to the parties at the addresses set forth below or on Appendix B, as
applicable, as same may be modified from time to time. Each such notice, request
or other communication shall be effective (a) if given by facsimile or e-mail,
when electronic confirmation that such facsimile or e-mail is received at the
facsimile number or e-mail address set forth below or on Appendix B, as
applicable, if such facsimile or e-mail is transmitted on a business day, and if
not, then on the next business day thereafter, or (b) if given by mail, three
(3) days after mailed by registered or certified mail (return receipt requested)
or (c) if given by express courier, on the day delivered by an express courier
(with confirmation from recipient) to the following addresses:
(a) if to the Company, to:
Xxxxxx Financial Group, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
E-mail: __________________
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(b) if to the Subscriber, to its mailing address and facsimile number or
e-mail address as shown on the Appendix B to this Agreement.
Notice of any change in any address or facsimile number shall also be given in
the manner set forth above. Whenever the giving of notice is required, the
giving of such notice may be waived by the party entitled to receive such
notice.
4.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties hereto with respect to the purchase and sale of the Purchased
Securities and supersedes all prior agreements or understandings among the
parties related to such matters.
4.3 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
4.4 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or covenants hereof may
be waived, only by a written instrument executed by all of the parties hereto
or, in the case of a waiver, by the party waiving compliance. Except as
otherwise specifically provided in this Agreement, no waiver by either party
hereto of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or at any prior or
subsequent time.
4.5 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of West Virginia, without giving effect to the principles of conflicts
of laws thereof.
4.6 HEADINGS. Headings of the sections in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section.
4.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same agreement.
4.8 FEES AND EXPENSES. The Company, on the one hand, and the Subscriber, on
the other hand, shall pay the respective fees and expenses incurred by them in
connection with the transactions contemplated herein.
4.9 SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms and
provisions of this Agreement in any other jurisdiction.
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4.10 FURTHER ACTIONS. The parties hereto agree to execute such further
instruments and to take such further actions as may reasonably be necessary to
carry out the intent of this Agreement.
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement.
NAME OF SUBSCRIBER:
______________________________
Purchase Price @ One Series B Share with 1000
Common Shares for $1000: $____________________________
Number of Series B Shares Acquired: _________________
Number of Common Shares Acquired: _________________
_________________
Authorized Signature:
_______________________________
Name: _________________________
Title: ________________________
Date: _________________________
Agreed and Accepted
this __ day of ________, 200__:
XXXXXX FINANCIAL GROUP, INC.
Purchase Price Allocation
(Based on Current Market Price of
Common Shares):
By: _______________________
Name: Xxxx X. Xxxxxx Common Shares: ___________
Title: President Preferred Shares: ___________
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APPENDIX A
ACCREDITED INVESTOR STATUS
Please xxxx the appropriate box next to each description applicable to you.
[___] A corporation or a partnership, not formed for the specific purpose of
acquiring Securities, with total assets in excess of $5,000,000.
[___] A natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000.
[___] A natural person who had individual income in excess of $200,000 in each
of the most recent two years, or joint income with that person's spouse in
excess of $300,000 in each of the most recent two years and who has a reasonable
expectation of reaching the same income level in the current year.
[___] A director or executive officer (as defined in Rule 501(f) of Regulation D
promulgated under the Securities Act) of the Company.
[___] A bank (as defined in Section 3(a)(2) of the Securities Act) or a savings
and loan association or other institution (as defined in Section 3(a)(5)(A) of
the Securities Act) whether acting in its individual or fiduciary capacity.
[___] A broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended.
[___] An insurance company (as defined in Section 2(13) of the Securities Act).
[___] An investment company registered under the Investment Company Act of 1940
(the "Investment Company Act") or a business development company (as defined in
Section 2(a)(48) of the Investment Company Act).
[___] A Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958.
[___] A plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in excess of
$5,000,000.
[___] An employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 ("ERISA") if (A) the investment decision is made by
a plan fiduciary (as defined in Section 3(21) of ERISA) which is either a bank,
savings and loan association, insurance company or registered investment
advisor, or (B) the employee benefit plan has total assets in excess of
$5,000,000, or (C) if the plan is a self-directed plan, its investment decisions
are made solely by persons who are accredited investors.
[___] An individual retirement account the beneficiary of which is an accredited
investor under the standards for natural persons set forth above (i.e.
$1,000,000 net worth or $200,000 individual income or $300,000 joint income with
spouse).
[___] A private business development company (as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940).
A-1
[___] A trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring Securities, whose acquisition is directed by a
person who, either alone or with his or her purchaser representative(s), has
such knowledge and experience in financial business matters that such person is
capable of evaluating the merits and risks of acquiring Securities.
[___] An organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, or a Massachusetts or similar business trust, not
formed for the specific purpose of acquiring Securities, with total assets in
excess of $5,000,000.
[___] An entity in which all of the equity owners meet the requirements of at
least one of the above subparagraphs for accredited investors.
X-0
XXXXXXXX X
GENERAL INFORMATION. Please print or type the following information about you:
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PART A. (TO BE COMPLETED BY NATURAL PERSONS)
Full Name: _________________________________________
Residence Address: _____________________________________________________
Number Street
_____________________________________________________
City State Zip
Telephone Number: _____________ Facsimile Number: _________________
Email Address: _____________________________________________________
Name of Employer: _____________________________________________________
Business Address and Telephone Number: ___________________________________
___________________________________
Telephone Number: _____________ Facsimile Number: _________________
Social Security Number: ______-_____-___________
PART B. (TO BE COMPLETED BY ENTITIES)
Name: _____________________________________________________
Business Address: _____________________________________________________
Number Street
_____________________________________________________
City State Zip
Telephone Number: _____________ Facsimile Number: _________________
Email Address: _____________________________________________________
Name and Title of
Individual Executing Questionnaire:_________________________________________
Principal Business: _________________________________________
State and Year of Organization: _________________________________________
Tax Identification Number: _________________________________________
B-1
