THE KEYW CORPORATION SUBSCRIPTION AGREEMENT FOR ACCREDITED INVESTORS
THE
KEYW CORPORATION
FOR
ACCREDITED INVESTORS
The KEYW
Corporation
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Ladies
and Gentlemen:
1. The
Subscription.
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(a)
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The
undersigned (the “Subscriber”),
intending to be legally bound, hereby irrevocably subscribes for and
agrees to purchase from The KEYW Corporation, a Maryland corporation (the
“Company”), such
number of Units (as defined below) indicated on the signature page of this
Subscription Agreement at a price of $5.50 per Unit on the terms and
conditions provided for
herein.
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(b)
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In
order to induce the Subscriber to purchase shares of the Company’s common
stock, par value $0.001 per share (the “Shares”), the
Company shall issue Subscriber a warrant, substantially in the form
attached hereto as Exhibit A (each
a “Warrant” and
collectively, the “Warrants” and,
together with the Shares, the “Units”), to
purchase such additional number of Shares, at a purchase price of $5.50
per share, as is equal to fifty percent (50%) of the total number of
Shares purchased by Subscriber hereunder, and having such other terms as
set forth therein. The Shares and the Warrants are immediately
separable and will be issued
separately.
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2. Acceptance or Rejection by
the Company.
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(a)
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The
Subscriber understands and agrees that the Company reserves the right to
accept or reject the Subscriber’s subscription for the Shares for any
reason or for no reason, in whole or in part, at any time prior to its
acceptance by the Company, except that the Company shall not have the
right to accept an amount that is less than fifty percent (50%) of
Subscriber’s subscription amount indicated on the signature page hereto,
and the subscription shall be deemed to be accepted by the Company only
when this Subscription Agreement is signed by a duly authorized person by
or on behalf of the Company and delivered to the Subscriber. In
the event of rejection of all or a portion of the subscription by the
Company, all or the applicable portion Subscriber’s payment hereunder will
be returned to the Subscriber within five (5) business days of such
rejection.
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(b)
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The
aggregate amount of Units sold shall not exceed 3,636,364
($20,000,000). Notwithstanding the foregoing, the Company
reserves the right, with the written consent of subscribers subscribing
for at least a majority of the Units then subscribed for, to accept
subscriptions for more than the maximum
requirement.
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3. Payment. The
Subscriber is delivering to the Company herewith the Subscriber’s payment in
consideration for the Units, by wire transfer to the account of the Company
designated on the signature page hereto, in the amount set forth on the
signature page hereto, representing the aggregate purchase price for the number
of Units being subscribed for hereby.
4. Registration of Ownership
and Certificates. Upon the Company’s receipt of the
Subscriber’s payment for the Units and the Company’s execution and delivery of
this Subscription Agreement, the Company shall (a) immediately register the
Subscriber as the beneficial owner of the number of Shares for which the Company
has accepted the Subscriber’s subscription (and return any excess payment in
consideration of any rejected Units in accordance with Section 2 above) and (b)
within (5) business days send by certified mail to the Subscriber’s address set
forth on the signature page hereto one or more certificates representing the
purchased Shares along with a duly executed Warrant.
5. Representations, Warranties
and Agreements of the Subscriber. The Subscriber hereby
represents and warrants to, and agrees with, the Company as
follows:
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(a)
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the
Subscriber is sophisticated in financial and business matters and has such
knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of its investment in the Units;
to the extent that the Subscriber has deemed it appropriate to do so, the
Subscriber has retained and relied upon necessary and appropriate
professional advice regarding the investment, tax and legal merits and
consequences of this Subscription Agreement and its investment in the
Units;
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(b)
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the
Subscriber’s financial situation is such that the Subscriber is able to
bear indefinitely the economic risk of its investment in the Units and
could afford a total loss of such
investment;
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(c)
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the
Subscriber is an “accredited investor” within the meaning of Rule 501 of
Regulation D under the Securities Act of 1933, as amended (the “Securities
Act”) (the definition of “accredited investor” is set forth on
Exhibit B hereto);
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(d)
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the
Subscriber is acquiring the Units for the Subscriber’s own account for
investment purposes only, and not with a view to, or for resale in
connection with, any distribution thereof within the meaning of the
Securities Act;
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(e)
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neither
the Company nor any person acting on its behalf has offered or sold the
Units to the Subscriber by means of any form of general solicitation or
general advertising; the Subscriber has a pre-existing relationship with
one or more of the Company’s officers or directors; the Subscriber became
aware of this Offering and the Units were offered to the Subscriber by
direct contact between the Subscriber and the Company; in making its
investment decision, the Subscriber relied solely on information received
directly from the Company, including the Company’s business
plan;
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(f)
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the
Subscriber understands that the Company was incorporated on May 13, 2008
and has no prior operating history or revenues; the Subscriber has made,
either alone or together with its advisors, if any, an independent
investigation of the Company and its prospects as the Subscriber deems to
be, or the Subscriber’s advisors, if any, have advised to be, necessary or
advisable in connection with the Subscriber’s investment in the Units, the
Subscriber and its advisors, if any, have had the opportunity to ask
questions of the Company’s management in connection with the Subscriber’s
investment decisions and the Subscriber and its advisors, if any, have
received all information and data which the Subscriber and its advisors,
if any, believe to be necessary or advisable in order to reach an informed
decision as to investing in the Units and to verify the information that
the Subscriber has received from the Company in connection with its
investment decision;
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(g)
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the
Subscriber understands that neither the offer nor sale of the Units
pursuant to this Subscription Agreement has been registered under the
Securities Act or registered or qualified under any applicable state
securities laws and that the Units are being offered and sold to the
Subscriber by reason of and in reliance upon a specific exemption from the
registration requirements of the Securities Act and exemptions from the
registration or qualification requirements of such applicable state
securities laws which depend upon, among other things, the bona fide
nature of the Subscriber’s investment intent as expressed herein and the
truth and accuracy of the Subscriber’s representations and warranties, and
compliance with and performance of the Subscriber’s agreements, in each
case as set forth herein; the Subscriber understands that the Company is
relying upon the Subscriber’s representations, warranties and agreements
as set forth herein for the purpose of determining whether the
transactions contemplated hereby meet the requirements for such exemptions
and qualifications;
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(h)
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the
Subscriber understands that the purchase of the Units involves various
risks, that there is no assurance of any income from its investment in the
Units and that, because the Shares are not listed on any stock market or
exchange, it is unlikely that any public market will exist for any resale
of the Units;
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(i)
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THE
SUBSCRIBER AGREES THAT (i) IT WILL NOT DIRECTLY OR INDIRECTLY SELL (OR
ENTER INTO ANY HEDGING OR SIMILAR TRANSACTION WITH THE SAME ECONOMIC
EFFECT AS A SALE), GRANT ANY OPTION TO PURCHASE, MAKE ANY SHORT SALE OF,
OR OTHERWISE ASSIGN, TRANSFER, PLEDGE, ENCUMBER, HYPOTHECATE OR DISPOSE OF
THE SHARES, THE WARRANTS OR ANY INTEREST THEREIN, OR MAKE ANY OFFER OR
ATTEMPT TO DO ANY OF THE FOREGOING, EXCEPT PURSUANT TO A REGISTRATION OF
THE SHARES UNDER THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES
LAWS OR IN A TRANSACTION WHICH, IN THE WRITTEN OPINION OF COUNSEL FOR THE
SUBSCRIBER (WHICH COUNSEL, AND THE FORM AND SUBSTANCE OF WHICH OPINION,
MUST BE SATISFACTORY TO THE COMPANY (WHICH REQUIREMENT MAY BE WAIVED BY
THE COMPANY UPON ADVICE OF COUNSEL)), IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES
LAWS, (ii) THE CERTIFICATE(S) FOR THE SHARES WILL BEAR A LEGEND MAKING
REFERENCE TO THE FOREGOING RESTRICTIONS AND (iii) THE COMPANY AND ANY
TRANSFER AGENT FOR THE SHARES AND THE WARRANTS SHALL NOT BE REQUIRED TO
GIVE EFFECT TO ANY PURPORTED TRANSFER OF ANY OF THE SHARES OR WARRANTS
EXCEPT FOR SUCH TRANSFERS THAT ARE IN COMPLIANCE WITH THE FOREGOING
RESTRICTIONS.
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(j)
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the
Subscriber understands and agrees that the Company is irrevocably
authorized to produce this Subscription Agreement or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered
hereby;
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(k)
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if
the Subscriber is not an individual, the Subscriber (i) has its principal
place of business at the address set forth under the Subscriber’s name on
the signature page hereto, (ii) is duly organized and in good standing
under the laws of its state or other jurisdiction of organization, (iii)
has not been organized, reorganized or recapitalized specifically for the
purpose of investing in the Shares or Warrants, (iv) has the power and
authority to execute and deliver this Subscription Agreement and to
perform and consummate the transactions contemplated hereby and (v) has
taken all actions necessary to authorize the execution and delivery of
this Subscription Agreement, the performance of its obligations hereunder
and the consummation of the transactions contemplated
hereby;
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(l)
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if
the Subscriber is an individual, the Subscriber (i) has his or her
residence at the address set forth under the Subscriber’s name on the
signature page hereto and (ii) has all requisite legal capacity to execute
and deliver this Subscription Agreement, perform its obligations hereunder
and to consummate the transactions contemplated
hereby;
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(m)
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the
Subscriber has duly executed and delivered this Subscription Agreement,
and this Subscription Agreement constitutes the legal, valid and binding
obligation of the Subscriber, enforceable against the Subscriber in
accordance with its terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization or similar laws relating to
creditors’ rights and (ii) general equitable
principles;
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(n)
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the
Subscriber agrees to provide, together with this completed and signed
Subscription Agreement, a completed and signed Substitute IRS Form W-9,
which is attached as Exhibit C
hereto;
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(o)
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the
Subscriber understands that the Company may request from the Subscriber
such additional information as the Company may deem necessary to evaluate
the eligibility of the Subscriber to acquire the Shares;
and
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(p)
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the
Subscriber agrees to keep confidential and not disclose or divulge any
confidential, proprietary or secret information which the Subscriber may
obtain from the Company pursuant to financial statements, reports and
other materials delivered by the Company or its representatives to the
Subscriber or the Subscriber’s advisors, if any, unless (i) such
information is or becomes known to the Subscriber from a source other than
the Company which, to the Subscriber’s knowledge, is not under any
confidentiality obligation, whether imposed by law or contract or is or
becomes publicly known without any breach of this Section by the
Subscriber, (ii) the Subscriber is required to disclose such information
as a result of its reporting obligations under Securities Exchange Act of
1934, as amended, but then only to extent required to comply with such
obligations, or (ii) the Company gives its written consent to the
Subscriber’s release of such information, except that no such written
consent shall be required (and the Subscriber shall be free to release
such information) if such information is to be provided to Subscriber’s
counsel or accountant, provided that the Subscriber shall inform the
recipient of the confidential nature of such information and shall
instruct the recipient to treat the information as
confidential.
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6. Representations and
Warranties of the Company. The Company hereby represents and
warrants to the Subscriber as follows:
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(a)
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The
Company is duly organized and in good standing under the laws of the State
of Maryland;
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(b)
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The
Company has the power and authority to own and operate its
properties and to execute and deliver this Subscription Agreement
and to perform and consummate the transactions contemplated hereby, and
has taken all actions necessary to authorize the execution and delivery of
this Subscription Agreement, the performance of its obligations hereunder
and the consummation of the transactions contemplated
hereby;
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(c)
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the
Company has duly executed and delivered this Subscription Agreement, and
this Subscription Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, reorganization or similar laws relating to creditors’ rights
and (ii) general equitable
principles;
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(d)
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when
issued and paid for in accordance with this Subscription Agreement, the
Shares will be duly and validly issued, fully paid and nonassessable;
and
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(e)
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the
outstanding capital stock of the Company as of the closing of the Offering
(assuming all the offered Shares are subscribed for) is as set forth on
Exhibit E
attached hereto. Except as set forth on Exhibit E,
there are no outstanding options, warrants, rights (including conversion
or preemptive rights and rights of first refusal), or agreements of any
kind (oral or written) for the purchase or acquisition from the Company of
any of its securities.
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7. Survival and
Indemnification. The representations, warranties and
agreements contained in this Subscription Agreement, including any rights
arising out of any breach of such representations, warranties and agreements,
shall survive indefinitely. Each of the Company and the Subscriber agree to
indemnify and hold harmless the other and its shareholders, officers, directors,
officers, employees, consultants, affiliates and agents from and against any and
all loss, liability, claim, damage and expense whatsoever (including, without
limitation, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever and including reasonable attorneys’ fees)
arising out of or based upon (a) any false, misleading or incomplete
representation or warranty or breach or failure by the other to comply with or
perform any agreement made by it in this Subscription Agreement or in any other
document furnished by it in connection with this Offering or (b) any action for
securities law violations by the other party.
8. GOVERNING LAW; WAIVER OF
JURY TRIAL. THIS SUBSCRIPTION AGREEMENT, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO,
SHALL BE GOVERNED BY AND CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE
STATE OF MARYLAND, EXCLUDING THE CHOICE OF LAW RULES THEREOF. THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER EXISTING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES HERETO AGREE
THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT BETWEEN OR AMONG
THE PARTIES HERETO IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR
PROCEEDING WHATSOEVER BETWEEN OR AMONG THEM RELATING TO THIS SUBSCRIPTION
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
9. Transferability.
Neither this Subscription Agreement nor any rights that may accrue to the
Subscriber hereunder may be transferred or assigned.
10. Severability. If
any part of any provision of this Subscription Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective to the extent
of such invalidity or unenforceability only, without in any way affecting the
remaining parts of such provisions or the remaining provisions
hereof.
11. Counterparts. This
Subscription Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more of such counterparts have been signed by each of the parties and
delivered to each party.
12. Entire Agreement.
This Subscription Agreement, including the Exhibits
hereto, constitutes the entire agreement among the parties pertaining
to the subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties.
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SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
INSTRUCTIONS: ALL
SUBSCRIBERS MUST SIGN BELOW AND SUBMIT WITH THEIR SUBSCRIBTION (i) THE
SUBSTITUTE IRS FORM W-9 ATTACHED AS EXHIBIT C HERETO AND (ii) PAYMENT IN
CONSIDERATION OF THE SUBSCRIBED-FOR UNITS TO THE COMPANY BY WIRE TRANSFER
TO:
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BANK:
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Bank
of America
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ACCOUNT
NUMBER:
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446010551705
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ABA
NUMBER:
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IF
YOU ARE ACTING FOR YOUR OWN ACCOUNT OR FOR ONE SUBSCRIBER ONLY, COMPLETE THE
FOLLOWING AND SIGN BELOW. IF YOU ARE ACTING FOR MORE THAN ONE
SUBSCRIBER, COMPLETE THE FORM ATTACHED AS EXHIBIT D HERETO AND SIGN
BELOW.
ONCE
COMPLETED, SUBMIT THIS SUBSCRIPTION AGREEMENT, YOUR SUBSTITUTE IRS FORM W-9 AND
ANY OTHER DOCUMENTATION TO THE COMPANY AT THE ADDRESS SET FORTH ON THE FIRST
PAGE HEREOF, OR BY FAX OR E-MAIL TO:
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ATTENTION:
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FAX
NUMBER:
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PHONE
NUMBER
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E-MAIL
ADDRESS:
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Print
Name of Subscriber (use exact name in which Shares are to be registered
and the Warrant is to be issued):
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Number
of Units Requested (the Subscriber
understands and agrees that the Company may allocate to it a smaller
number of Shares):
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Address
of Subscriber for Registration of Shares and issuance of
Warrant:
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Purchaser
Price in Connection with Subscription (multiply the number of Units
requested by the offering price of $5.50 per Unit):
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Subscriber’s
Social Security Number (if an individual) or Taxpayer Identification
Number (if not an individual):
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IN WITNESS WHEREOF, the
Subscriber has caused this Subscription Agreement to be executed individually,
or, in the event the undersigned is not an individual, by its duly authorized
representative, as of the date set forth below.
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Signature:
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Date:
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Print
Name:
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Title:
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Telephone Number:
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E-mail:
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SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT
Accepted
and Agreed:
THE KEYW
CORPORATION
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By:
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Name:
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Title:
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Date:
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