1,300,000 Shares
XXXXXX & XXXXXX GROUP, INC.
Common Stock
FORM OF
PLACEMENT AGENCY AGREEMENT
June 15, 2007
GLOBAL CROWN CAPITAL, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx & Xxxxxx Group, Inc., a New York corporation (the "Company"),
proposes to issue and sell to certain investors (each an "Investor" and,
collectively, the "Investors"), up to an aggregate of 1,300,000 shares of
the Company's common stock, $0.01 par value per share (the "Common Stock").
The aggregate of 1,300,000 shares of Common Stock so proposed to be sold
is hereinafter referred to as the "Shares." The Company desires to
engage Global Crown Capital, LLC as its exclusive placement agent (the
"Placement Agent") in connection with such issuance and sale of the Shares.
1. Agreement to Act as Placement Agent; Delivery and Payment.
On the basis of the representations, warranties and agreements of the
Company herein contained, and subject to all the terms and conditions of
this Agreement:
(a) The Company engages the Placement Agent to act as
its exclusive placement agent in connection with the issuance and sale of
the Shares and the Placement Agent hereby agrees, as an agent of the Company,
to use its best efforts to solicit offers to purchase the Shares upon the
terms and conditions set forth in the Prospectus (as defined below).
(b) Upon the occurrence of the Closing (as defined
below), the Company shall pay to the Placement Agent an aggregate of six
percent (6.0%) of the gross proceeds received by the Company from its sale
of the Shares. 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 bind the Company in respect of the sale of any
Shares. The sale of the Shares shall be made pursuant to subscription
agreements in the form included as Exhibit A hereto (the "Subscription
Agreements"). The Company shall have the sole right to accept offers to
purchase the Shares and may reject any such offer in whole or in part.
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.
(c) Concurrently with the execution and delivery of
this Agreement, the Placement Agent and Citibank, 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
desire to settle their purchase through the facilities of The Depository
Trust Company's DWAC system. Prior to the Closing, 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 such Purchase Amounts is herein
referred to as the "Escrow Funds". On the Closing Date, the Escrow Agent
will disburse the Escrow Funds to the Company and the Placement Agent as
provided in the Escrow Agreement and the Company shall cause its transfer
agent to deliver the Shares purchased by such Investors.
(d) Payment of the purchase price for, and delivery of,
the Shares shall be made at a closing (the "Closing") at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, located
at Four Times Square, New York, New York at 10:00 a.m., local time, on the
third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act (as defined below)) 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.
(e) Prior to forwarding a Subscription Agreement to
the Company for acceptance, the Placement Agent shall use its reasonable
efforts to determine that the subscriber for Shares has a legitimate source
of funds, that there is no reason to suspect such subscriber of money
laundering activities, and that in forwarding the Subscription Agreement
the Placement Agent is compliant with the program described in Section 3(c).
(f) Any Investor not settling its purchase of Shares
pursuant to Section 1(c) above shall deposit its respective Purchase Amount
into an account or accounts established with the Placement Agent. On the
Closing Date, the Placement Agent shall, with respect to each such Investor,
cause the Purchase Amount for such Shares to be wired from such accounts
to an account designated by the Company in exchange for the release of
such Investor's Shares.
(g) The Shares shall be registered in such names and
in such denominations as the Placement Agent shall request by written notice
to the Company.
2. Representations and Warranties of the Company. The Company
represents and warrants to the Placement Agent as follows:
(a) Registration Statement. The Company meets the
requirements for the use of Form N-2 under the Securities Act of 1933 (the
"Securities Act"), and a registration statement (Registration No. 333-138996)
on Form N-2 relating to the Shares being offered by the Company, and such
amendments thereof as may have been required to the date of this Agreement,
has been prepared by the Company in accordance with the provisions of the
Securities Act and the rules and regulations (collectively referred to as
the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has been filed with and has been declared
effective by the Commission. A final prospectus supplement containing
information permitted to be omitted at the time of effectiveness by Rule
430C of the Rules and Regulations will be filed promptly by the Company
with the Commission in accordance with Rule 497 of the Rules and Regulations.
(i) The term "Registration Statement" as used in this
Agreement means the registration statement, as amended at the time it
became effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with
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the Commission pursuant to Rule 497 under the Securities Act and deemed to
be a part of the registration statement at the time of effectiveness pursuant
to Rule 430C under the Securities Act, and as supplemented or amended, prior
to the execution of this Agreement, including all financial schedules and
exhibits thereto.
(ii) The term "Base Prospectus" as used in this Agreement
means the base prospectus, dated as of May 11, 2007, included in the
Registration Statement at the time it was declared effective by the
Commission. The term "Prospectus Supplement" as used in this Agreement
means the final prospectus supplement specifically relating to the Shares
in the form that is first filed with the Commission pursuant to Rule 497
under the Securities Act after the date and time this Agreement is executed
and delivered by the parties hereto.
(iii) The term "Time of Sale" as used in this
Agreement means the time of execution of this Agreement.
(iv) The term "Pricing Information" as used in this A
greement, means the the information included on Exhibit C hereto (which
information the Placement Agent has informed the Company is being conveyed
orally by the Placement Agent to prospective purchasers at or prior to
confirming sales of the shares in the offering).
(b) Registration Statement and Prospectus. No order
preventing or suspending the use of the Base Prospectus has been issued by
the Commission, and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has been
issued, and no proceedings for that purpose have been instituted or, to
the Company's knowledge, are threatened by the Commission. The Registration
Statement complied when it became effective, in all material respects,
with the requirements of the Securities Act; the Registration Statement
did not, as of the time such Registration Statement became effective and
at the Time of Sale, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus, as of
the date that it is filed with the Commission and as of the Closing Date,
will not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, in each case, that the Company makes no representations or
warranty with respect to any Placement Agent Information (as defined in
Section 9).
(c) Organization. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of New York, with the corporate power and
authority necessary to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus.
(d) Capitalization. The authorized capital stock
of the Company consists of (i) 45,000,000 shares of Common Stock and
(ii) 2,000,000 shares of preferred stock, par value $0.10 per share
(the "Preferred Stock"). As of the date hereof, 21,806,896 shares of
Common Stock are issued and outstanding and no shares of Preferred Stock
are issued and outstanding.
(e) The Shares. The Shares have been duly and
validly authorized by the Company and, when issued, delivered and paid
for in accordance with the terms of this Agreement and the Subscription
Agreements, will have been duly and validly issued and will be fully
paid and nonassessable.
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(f) Description of Capital Stock. The terms of the
capital stock of the Company, including the Shares, conforms in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(g) Due Authorization and Execution. This Agreement
has been duly authorized, executed and delivered by the Company.
(h) No Violation or Default. The Company is not in
breach or violation of or in default under (i) the provisions of its
charter or by-laws, (ii) any material agreement filed as an exhibit to
the Registration Statement, or (iii) any federal or state statute or law,
any rule or regulation issued pursuant to any federal or state statute or
law, or any order issued pursuant to any federal or state statute or law
by any court or governmental agency or body having jurisdiction over the
Company, except, with respect to clauses (ii) and (iii) above, to the
extent any such contravention would not, individually or in the aggregate,
have a material adverse effect on the business, properties, financial
condition or results of operations of the Company (a "Material Adverse
Effect").
(i) No Conflicts. The execution, delivery by the
Company of this Agreement and each of the Subscription Agreements and
including the issuance and sale by the Company of the Shares as
contemplated herein and therein, will not conflict with or result in a
breach or violation of, or constitute a default under (i) the provisions
of its charter or by-laws, (ii) any material agreement filed as an exhibit
to the Registration Statement, or (iii) any federal or state statute or
law, any rule or regulation issued pursuant to any federal or state statute
or law, or any order issued pursuant to any federal or state statute or
law by any court or governmental agency or body having jurisdiction over
the Company, except, with respect to clauses (ii) and (iii) above, to the
extent any such contravention would not, individually or in the aggregate,
have a Material Adverse Effect.
(j) No Consents Required. No filing with, or
authorization, approval, consent or order of, any court or governmental
agency or body is required for the issuance and sale of the Shares,
except as referred to in this Agreement, the Registration Statement or
the Prospectus and (i) such as have been already obtained or as may be
required under the Securities Act, the Investment Company Act of 1940,
as amended (the "Investment Company Act") or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (ii) such as may be required
under the bylaws, rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD"), or (iii) such as may be required under
the "blue sky" laws of any jurisdiction in connection with the purchase
and distribution of the Shares in the manner contemplated in this Agreement,
the Registration Statement and the Prospectus.
(k) Legal Proceedings. Except as described in the
Registration Statement and the Prospectus, there are no legal proceedings
pending or, to the Company's knowledge, threatened to which the Company or
any of its properties is or would be subject at law or in equity, before
or by any federal or state court or governmental agency or body, except
any such legal proceedings, which if resolved adversely to the Company,
would not result in a judgment, decree or order having, individually or
in the aggregate, a Material Adverse Effect.
(l) Independent Accountants. PricewaterhouseCoopers
LLP, whose reports with respect to the audited consolidated financial
statements and schedules of the Company are included in the Registration
Statement and the Prospectus are, to the Company's knowledge, an
independent registered public accounting firm as required by the Securities
Act and the Rules and Regulations.
(m) Financial Statements. The consolidated financial
statements of the Company, together with the related schedules and notes
thereto, set forth in the Registration Statement and the Prospectus
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present fairly in all material respects the consolidated financial
condition of the Company as of the dates indicated and the consolidated
results of operations, cash flows and changes in net assets of the Company
for the periods specified and have been prepared in conformity with
United States generally accepted accounting principles, consistently
applied throughout the periods involved.
(n) No Material Adverse Change. Subsequent to the
date of the Prospectus, and other than as contemplated therein, there has
not been (i) any material adverse change in the business, properties,
financial condition or results of operations of the Company, (ii) any
transaction which is material to the Company, (iii) any material change
in the capital stock, or any material change in the outstanding indebtedness,
of the Company, or (v) any dividend or distribution declared, paid or made
on the capital stock of the Company.
(o) Investment Company Act. The Company has elected to
be regulated as a "business development company" under the Investment
Company Act and has not withdrawn such election, and the Commission has not
ordered that such election be withdrawn nor to the Company's knowledge
have proceedings to effectuate such withdrawal been initiated or threatened
by the Commission.
(p) Taxes. The Company has timely filed all material
federal and state income and franchise tax returns (or timely filed
applicable extensions therefore) that have been required to be filed and
is not in default in the payment of any taxes which were payable pursuant
to said returns or any assessments with respect thereto, except to the
extent that the failure to timely file or pay would not, individually or
in the aggregate, have a Material Adverse Effect.
(q) Accounting Controls. The Company maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(r) Disclosure Controls. The Company has established,
maintains and evaluates "disclosure controls and procedures" (as such term
is defined in Rule 13a-15e and 15d-15e under the Exchange Act), which (i)
are designed to ensure that material information required to be disclosed
by the Company in the reports that it files under the Exchange Act is made
known to the Company's principal executive officer and its principal
financial officer, particularly during the periods in which the periodic
reports required under the Exchange Act are being prepared, and such
disclosure controls and procedures are effective to perform the functions
for which they were established; the Company's auditors and the Audit
Committee of the Board of Directors of the Company have been advised of:
(i) any significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting (as such term is
defined in Rule 13a-15f and 15d-15f under the Exchange Act) which could
adversely affect the Company's ability to record, process, summarize, and
report financial data; and (ii) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's
internal control over financial reporting; any material weaknesses in
internal control over financial reporting have been identified for the
Company's auditors; and since the date of the most recent evaluation of
such internal control over financial reporting, there have been no changes
in internal control over financial reporting or in other factors that
could significantly affect internal control over financial reporting,
including any corrective actions with regard to significant deficiencies
and material weaknesses.
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(s) No Stabilization. Neither the Company, nor, to
the Company's knowledge, any of its officers, directors, affiliates or
controlling persons, has taken or will take, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company to facilitate the sale or resale of the Shares.
(t) Disclosure. The statements set forth in the
Prospectus under the captions "Taxation" and "Certain Governmental
Regulations," insofar as they purport to describe the provisions of the
laws referred to therein, are accurate and complete in all material respects.
(u) Xxxxxxxx-Xxxxx Act. The Company, and to its
knowledge, all of the Company's directors or officers, in their capacities
as such, is in compliance in all material respects with all applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act").
3. Representations and Warranties of the Placement Agent.
The Placement Agent represents and warrants to the Company as follows:
(a) Due Authorization and Execution. This Agreement
has been duly authorized, executed and delivered by the Placement Agent.
(b) NASD Compliance. The Placement Agent (i) maintains
all licenses and registrations necessary under applicable law and
regulations (including the rules of the NASD) to provide the services
required to be provided by the Placement Agent under this Agreement, (ii)
has submitted or will submit all filings required under the rules and
regulations of the NASD with respect to this Agreement and the transactions
contemplated hereby, and (iii) will use its best efforts to obtain
confirmation from the NASD, prior to the Closing Date, that the NASD will
not raise any objection with respect to the fairness or reasonableness of
the placement agent compensation, or other arrangements of the transactions,
contemplated hereby.
(c) Anti-Money Laundering. The Placement Agent maintains
an anti-money laundering program reasonably designed to comply with Section
352 of the USA Patriot Act and NASD Rule 3011. The Placement Agent's
anti-money laundering program includes: (i) Anti-Money Laundering/"Know
Your Customer" policies and procedures (ii) the designation of an Anti-
Money Laundering Compliance Officer; (iii) recording-keeping and reporting
practices in accordance with applicable law; (iv) reporting of suspicious
activity to government authorities in accordance with applicable law;
(v) anti-money laundering training; and (vi) independent testing for
compliance.
4. Covenants of the Company. The Company covenants and
agrees with the Placement Agent as follows:
(a) Prospectus Supplement. The Company shall file the
Prospectus Supplement with the Commission within the time periods specified
by Rule 497 and Rule 430C under the Securities Act.
(b) Amendments or Supplements. The Company will not,
during such period as the Prospectus would be required under the Securities
Act to be delivered in connection with sales of the Shares by the Placement
Agent in connection with the offering contemplated by this Agreement, file
any amendment or supplement to the Registration Statement or the Prospectus,
except as required by law, unless a copy thereof shall first have been
submitted to the Placement Agent within a reasonable period of time prior
to the filing thereof.
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(c) Notice to Placement Agent. During the time during
which a prospectus relating to the Shares is required to be delivered under
the Securities Act, the Company will notify the Placement Agent promptly,
and will, if requested, confirm such notification in writing: (i) when any
post-effective amendment to the Registration Statement becomes effective;
(ii) of any request by the Commission for any amendment to the Registration
Statement or the Prospectus or for additional information relating to or
in connection with the sale of the Shares; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the
threat thereof; (iv) of becoming aware of the occurrence of any event during
the time during which a prospectus related to the Shares is required to be
delivered that in the judgment of the Company makes any statement made in
the Registration Statement or the Prospectus then being used untrue in any
material respect or that requires the making of any changes in the
Registration Statement or the Prospectus then being used in order to make
the statements therein, in light of the circumstances in which they are
made, not misleading; and, during such time, prepare and furnish, at the
Company's expense, to the Placement Agent promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change; or (v) of receipt by the Company of any notification with respect
to any suspension of the qualification of the Shares for offer and sale
in any jurisdiction.
(d) Undertakings. If at any time during which a
prospectus related to the Shares is required to be delivered under the
Securities Act the Commission shall issue any order suspending the
effectiveness of the Registration Statement in connection with the offering
contemplated hereby, the Company will make every reasonable effort to
obtain the withdrawal of any such order at the earliest possible moment.
If the Company has omitted any information from the Registration Statement,
pursuant to Rule 430C of the Rules and Regulations, the Company will
comply with the provisions of and make all requisite filings with the
Commission pursuant to said Rule 430C and notify the Placement Agent
promptly of all such filings.
(e) Delivery of Copies. So long as a prospectus
relating to the Shares is required to be delivered under the Securities
Act, to deliver to the Placement Agent as many copies of the Prospectus
or any amendment or supplement thereto as the Placement Agent shall
reasonably request.
(f) Blue Sky Compliance. The Company will promptly
take from time to time such actions as the Placement Agent may reasonably
request to qualify the Shares for offering and sale under the state
securities, or blue sky, laws of such jurisdictions as the Placement Agent
may reasonably request, provided, that in no event shall the Company be
obligated to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified or to file a general consent to service of process
in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(g) Use of Proceeds. The Company will apply the net
proceeds from the sale of the Shares in the manner set forth in the
Prospectus under the heading "Use of Proceeds".
(h) Placement Right. If the Company places any equity
securities of the Company or successor of the Company with the investors
who participate in this offering on a "best efforts" public basis ("Future
Best-Efforts Offering"), during the period up until March 31, 2008, the
Placement Agent shall be the exclusive placement agent for those investors.
For the sake of clarity, this right only applies to a registered direct
offering and does not apply for an underwritten public offering.
(i) Stabilization. The Company will not at any time,
directly or indirectly, take any action designed or that might reasonably
be expected to cause or result in, or that will constitute, stabilization
of the price of the shares of Common Stock to facilitate the sale or resale
of any of the Shares.
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(j) Listing. The Company shall use its best efforts
to cause the Common Stock to be listed for quotation on the Nasdaq Global
Market and to maintain such listing.
5. Payment Of Expenses. The Company will pay all costs and
expenses incident to the performance of the obligations of the Company
under this Agreement and in connection with the transactions contemplated
hereby, including but not limited to costs and expenses of or relating to
(i) the preparation, printing and filing of the Registration Statement,
the Prospectus, and any amendment or supplement to any of the foregoing
and the printing and furnishing of copies of each thereof to the Placement
Agent (including costs of mailing and shipment), (ii) the registration,
issue, sale and delivery of the Shares including any stock or transfer
taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Shares and the printing, delivery, and shipping of the
certificates representing the Shares, (iii) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of such jurisdictions designated pursuant to Section 4(f),
(including the reasonable legal fees and filing fees, and other
disbursements of counsel to the Placement Agent in connection therewith),
(iv) the fees and expenses of any transfer agent or registrar for the
Shares, (v) any filings required to be made by the Placement Agent or
the Company with the NASD, and the reasonable fees, disbursements and
other charges of counsel for the Placement Agent in connection therewith
(including all COBRADesk fees), (vi) fees, disbursements and other charges
of counsel to the Company, (vii) listing fees, if any, for the listing or
quotation of the Shares on the Nasdaq Global Market; provided; however,
that the Company shall only be obligated to pay or reimburse Placement
Agent for the costs and expenses enumerated in (iii) and (v) above in an
amount up to $10,000. It is understood, however, that except as provided
in this Section 5 and Section 8, the Placement Agent shall pay all of its
own expenses, including the fees and disbursements of its counsel.
6. Conditions of the Placement Agent's Obligations. The
obligations of the Placement Agent hereunder are subject to the following
conditions:
(a) Each of the representations and warranties of
the Company contained herein shall be true and correct at the Closing
Date, as if made on such date, and all covenants and agreements herein
contained to be performed on the part of the Company and all conditions
herein contained to be fulfilled or complied with by the Company at or
prior to the Closing Date shall have been duly performed, fulfilled or
complied with.
(b) The Placement Agent shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, such
counsel's written opinion, addressed to the Placement Agent and the
Investors and dated the Closing Date, in form and substance as is set
forth on Exhibit B attached hereto.
(c) The Placement Agent shall have received from the
Company on the Closing Date a certificate, addressed to the Placement
Agent and dated the Closing Date, to the effect that:
(i) each of the representations, warranties and
agreements of the Company in this Agreement were true and correct when
originally made and are true and correct as of the Closing Date; and the
Company has complied 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;
(ii) subsequent to the date of the most recent financial
statements included in each of the Registration Statement, the Prospectus
and the Disclosure Package, there has not been a material adverse change
in the business, properties, financial condition or results of operations
of the Company other than as set forth in or contemplated by the
Registration Statement or the Prospectus; and
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(iii) (A) no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued, and
no proceedings for that purpose shall be pending or threatened by the
Commission and (B) no order suspending the qualification or registration of
the Shares under the securities or blue sky laws of any jurisdiction shall
be in effect and no proceeding for such purpose shall be pending before or
threatened by any securities or other governmental authority.
(d) The Shares shall have been approved for listing on
the Nasdaq Global Market, subject only to official notice of issuance.
(e) Prior to the Closing Date, the Company shall have
furnished to the Placement Agent such further information, certificates or
documents as the Placement Agent shall have reasonably requested.
7. Conditions of the Company's Obligations. The obligations
of the Company hereunder are subject to the following conditions:
(a) The Company shall have received from the Placement
Agent on the Closing Date a certificate, addressed to the Company and
dated the Closing Date, to the effect that each of the warranties and
agreements of the Placement Agent in this Agreement were true and correct
when originally made and are true and correct as of the Closing Date.
(b) The NASD shall have confirmed that it will raise
no objection with respect to the fairness or reasonableness of the placement
agent compensation, or other arrangements of the transactions,
contemplated hereby.
8. Indemnification and Contribution.
(a) Indemnification of the Placement Agent. The
Company agrees to indemnify, defend and hold harmless the Placement Agent,
its partners, directors and officers, and each person, if any, who controls
the Placement Agent within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons, from and against any loss, damage, expense,
liability or claim, which, jointly or severally, the Placement Agent or any
such person may incur under the Securities Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or any omission or alleged omission to state 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, except insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in or omitted from, 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 (as defined in Section 9).
(b) Indemnification of the Company. The Placement
Agent agrees to indemnify, defend and hold harmless the Company, its
directors and officers, and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or
claim which, jointly or severally, the Company or any such person may incur
under the Securities Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
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is based upon any untrue statement or alleged untrue statement of a material
fact contained in, 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 in, the Registration Statement or the
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated therein or necessary
to make such statements, in light of the circumstances under
which they were made, not misleading; provided, that the parties hereto
hereby agree that such written information provided by the Placement
Agent consists solely of the Placement Agent Information (as defined in
Section 9).
(c) Notice and Procedures. If any action, suit or
proceeding (each, a "Proceeding") is brought against a person (an
"indemnified party") in respect of which indemnity may be sought against
the Company or the Placement Agent (as applicable, the "indemnifying party")
pursuant to subsection (a) or (b), respectively, of this Section 8, such
indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses; provided, however, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party
from any liability which such indemnifying party may have to any indemnified
party or otherwise, except to the extent the indemnifying party does not
otherwise learn of the Proceeding and such failure results in the forfeiture
by the indemnifying party of substantial rights or defenses. The indemnified
party or parties shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying party
in connection with the defense of such Proceeding, (ii) the indemnifying
party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or
(iii) such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to such indemnifying
party (it being understood, however, that such indemnifying party shall not
be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings
in the same jurisdiction representing the indemnified parties who are parties
to such Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by herein, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its intention
to settle. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of 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.
(d) Contribution. If the indemnification provided for
in this Section 8 is unavailable to an indemnified party under subsections
(a) or (b) of this Section 8 or insufficient to hold an indemnified party
harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above, (i) in
10
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Placement Agent on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Placement Agent on the other hand shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
the Shares (before deducting expenses) received by the Company and the total
placement agent commissions received by the Placement Agent, in each case as
set forth on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on
the one hand and the Placement Agent on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Placement Agent and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Placement Agent agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were to
be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the first sentence of this Section 8(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 8(d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against
any action or claim which is the subject of this Section 8(d).
Notwithstanding the provisions of this Section 8(d), the Placement Agent
shall not be required to contribute any amount in excess of the total
commissions received by such Placement Agent in accordance with Section
1(b). No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) Survival. The obligations of the Company under
this Section 8 shall be in addition to any liability which the Company may
otherwise have. The indemnity and contribution agreements contained in
this Section 8 shall remain operative and in full force and effect
regardless of any termination of this Agreement.
9. Information Furnished by Placement Agent. The Company
acknowledges that the statements set forth under the heading "Plan of
Distribution" in the Prospectus Supplement (the "Placement Agent
Information") constitute the only information relating to the Placement
Agent furnished in writing to the Company by the Placement Agent as such
information is referred to in Sections 2 and 8 hereof.
10. 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, prior to delivery and payment
for the Shares (i) trading in securities generally shall have been suspended
or materially limited on the Nasdaq Global Market or the New York Stock
Exchange (each, a "Trading Market"), (ii) trading in the Common Stock of
the Company shall have been suspended by the Commission or by the Nasdaq
Global Market, or trading of any other securities issued or guaranteed by
the Company shall have been suspended on any Trading Market or in any
over-the-counter market, (iii) a banking moratorium shall have been
declared by federal or New York state authorities or a material disruption
in commercial banking or securities settlement or clearance services in the
United States shall have occurred, or (iv) there shall have occurred any
11
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, if the effect, in the
reasonable judgment of the Placement Agent, 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, the Registration Statement and the Package. Any such
termination shall be without liability of any party to any other party
except that the provisions of Section 5, Section 8 and Section 13 hereof
shall at all times be effective notwithstanding such termination.
11. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Placement Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Global Crown Capital, LLC, 000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attention: General
Counsel and Chief Compliance Officer Xxxxx Xxxxxxxx Xxxxxx, Esq.
(Fax: 000.000.0000);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxx & Xxxxxx Group, Inc., 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel (Fax: 000-000-0000),
with a copy (which shall not constitute notice) to: Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York, Attention:
Xxxxxxx X. Xxxxx, Esq., (Fax: 000-000-0000).
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.
12. Successors and Assigns. This Agreement shall be binding
upon the Placement Agent and the Company and their successors and assigns
and any successor or assign of any substantial portion of the Company's
and the Placement Agent's respective businesses and/or assets.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts formed and to be performed entirely within the State of New York,
without regard to the applicability or effect of conflict of law principles
or rules thereof, to the extent such principles would require or permit the
application or the laws of another jurisdiction.
14. Headings. The Section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
15. Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties, and
there are no warranties, representations or other agreements among the
parties in connection with the subject matter hereof 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. Each party to this Agreement agrees that
(i) no other party to this Agreement (including its agents and
representatives) had made any representation, warranty, covenant or
agreement to or with such party relating to the transactions contemplated
hereby, other than those expressly set forth herein, and (ii) such party has
12
not relied upon any representation, warranty, covenant or agreement relating
to the transactions contemplated hereby, other than those referred
to in clause (i) above.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original and all such counterparts
shall together constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
13
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 & XXXXXX GROUP, INC.
By:______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
Accepted as of
the date first above written:
GLOBAL CROWN CAPITAL, LLC
By: _______________________________
Name: Xxxx Xxxxxx
Title: Managing Partner and Chief Investment Officer
SCHEDULES AND EXHIBITS
EXHIBIT A: FORM OF SUBSCRIPTION AGREEMENT
EXHIBIT B: MATTERS TO BE COVERED IN THE OPINION OF CORPORATE COUNSEL
TO THE COMPANY
EXHIBIT C: PRICING INFORMATION
EXHIBIT A
FORM OF Subscription Agreement
Xxxxxx & Xxxxxx Group, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 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 & Xxxxxx Group, Inc.,
a corporation organized and existing under the laws of the State of
New York (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 $0.01
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
$10.79 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 is expected to occur on or about
June 20, 2007. 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. 333-138996) (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 497 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 June 15, 2007, with Global Crown Capital,
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. The Investor shall be a third party beneficiary
to the representations, warranties and covenants as set forth in
Sections 2 and 4 of the Placement Agreement. 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
Global Market on the next trading day after the Pricing, 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 purchases or sales of 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: June ____, 2007
---------------------------------
INVESTOR
By: _________________________________
Print Name: _________________________________
Title: _________________________________
Name in which Shares are to be registered: _________________________
Mailing Address: _________________________
Taxpayer Identification Number: _________________________
Agreed and Accepted this ___day of June 2007:
XXXXXX & XXXXXX GROUP, 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 :
Institution: Citibank N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ABA Routing Number: 0000-0000-0
Acct Name: Global Crown Capital, LLC
Acct No. 202118253
Such funds shall be held in escrow pursuant to an escrow agreement entered
into between Citibank, N.A. (the "Escrow Agent") and the Placement Agent
(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
MATTERS TO BE COVERED IN THE
OPINION OF CORPORATE COUNSEL TO THE COMPANY
EXHIBIT C
PRICING INFORMATION
Number of Shares to be sold
Offering Price
Placement Agent Commission
Net Proceeds to the Company
