1,300,000 Shares HARRIS & HARRIS GROUP, INC. Common Stock FORM OF PLACEMENT AGENCY AGREEMENT
1,300,000
Shares
▇▇▇▇▇▇
& ▇▇▇▇▇▇ GROUP, INC.
Common
Stock
FORM
OF
June
15, 2007
GLOBAL
CROWN CAPITAL, LLC
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
▇▇▇▇▇▇
& ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 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.
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(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 Agreement, 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 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.
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(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) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
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”.
(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, ▇▇▇▇▇▇▇ &
▇▇▇▇ 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;
-8-
(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
(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).
-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 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.
-10-
(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 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 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-
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, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇,
Attention: General Counsel and Chief Compliance Officer ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if
to the
Company, shall be delivered or sent by mail, telex or facsimile transmission
to
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Group, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a
copy
(which shall not constitute notice) to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, Four Times Square, New York, New York, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
(Fax: ▇▇▇-▇▇▇-▇▇▇▇).
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 not relied upon
any representation, warranty, covenant or agreement relating to the transactions
contemplated hereby, other than those referred to in clause
(i) above.
-12-
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,
|
||
|
▇▇▇▇▇▇
& ▇▇▇▇▇▇ GROUP, INC.
|
||
|
By:
|
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
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|
Title:
President
|
||
Accepted
as of
the
date
first above written:
|
GLOBAL
CROWN CAPITAL, LLC
|
||
|
By:
|
|
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
Managing Partner and Chief Investment Officer
|
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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
▇▇▇▇▇▇
& ▇▇▇▇▇▇ Group, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 $ 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:
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Please
confirm that the foregoing correctly sets forth the agreement between us
by
signing in the space provided below for that purpose.
Dated
as
of: June ____, 2007
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INVESTOR
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By:
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Print
Name:
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Title:
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Name
in which Shares are to be registered:
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Mailing
Address:
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Taxpayer
Identification Number:
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Agreed
and Accepted this ___day of June 2007:
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▇▇▇▇▇▇
& ▇▇▇▇▇▇ GROUP, INC.
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By:
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Title:
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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.
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Name
of DTC Participant (broker-dealer
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at
which the account or accounts to be
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credited
with the Shares are maintained)
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DTC
Participant Number
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Name
of Account at DTC Participant
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being
credited with the Shares
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Account
Number at DTC Participant
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being
credited with the Shares
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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.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA
Routing Number:
Acct
Name: Global Crown Capital, LLC
Acct
No.
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