This Subscription
Agreement (this “ Agreement ”) is dated
September ___, 2009, by and between the investor identified on the
signature page hereto (the “ Investor ”) and
Majesco Entertainment Company, a Delaware corporation (the “
Company ”), whereby the parties agree as
follows:
(a) Investor
agrees to buy and the Company agrees to sell and issue to Investor
(i) such number of shares (the “ Shares ”)
of common stock, par value $0.001 per share (“ Common
Stock ”), set forth on the signature page hereto, for an
aggregate purchase price set forth on the signature page hereto
(the “ Aggregate Purchase Price ”).
(b) The
Company represents and warrants that the Shares have been
registered on a Registration Statement on Form S-3, Registration
No. 333-159980, which registration statement (the “
Registration Statement ”) has been declared effective
by the Securities and Exchange Commission (the “ SEC
”) and has remained effective since such date and is
effective on the date hereof, and are being offered and sold (the
“ Offering ”) pursuant to the Registration
Statement (including the prospectus contained therein (the “
Base Prospectus ”) and a Prospectus Supplement (the
“ Prospectus Supplement ”) and together with the
Base Prospectus, the “ Prospectus ”) containing
certain supplemental information regarding the Shares and terms of
the Offering that has been or will be filed with the SEC and
delivered to the Investor (or made available to the Investor by the
filing by the Company of an electronic version thereof with the
SEC).
(c) ON
EXCHANGE OF SIGNATURE PAGES OF THIS SUBSCRIPTION AGREEMENT BUT IN
NO EVENT LATER THAN SEPTEMBER 18, 2009, THE INVESTOR SHALL INITIATE
WIRE TRANSFER INTO ESCROW, PURSUANT TO AN ESCROW AGREEMENT, DATED
OF EVEN DATE HEREWITH, BY AND AMONG THE ESCROW AGENT, THE PLACEMENT
AGENT AND THE COMPANY, THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO
THE FOLLOWING ACCOUNT DESIGNATED BY THE COMPANY:
JP MORGAN CHASE
BANK
ABA #
ACCT:
AMERICAN STOCK TRANSFER & TRUST COMPANY
AS AGENT FOR MAJESCO ENTERTAINMENT COMPANY
Such
funds shall be delivered unless (i) the Placement Agency
Agreement (the “ Placement Agreement ”) between
the Company and the placement agent engaged by the Company in
connection with the sale and issuance of the Shares (the “
Placement Agent ”) is terminated pursuant to the terms
thereof or (ii) the conditions to closing in the Placement
Agreement have not been satisfied. The Company’s obligation
to issue the Shares to the Investor
will be subject
to (i) the receipt by the Company of the Aggregate Purchase
Price for the Shares being purchased hereunder as set forth on the
signature page, (ii) the accuracy of the representations and
warranties made by the Investor in this Agreement, and
(iii) the Registration Statement remaining in effect and no
stop order proceedings with respect thereto being pending or
threatened. The Company proposes to enter into substantially this
same form of Agreement with certain other investors and the
Investor’s obligations are expressly not conditioned on the
purchase by any or all such other investors of the Shares that they
have agreed to purchase from the Company. The Placement Agent shall
have no rights in or to any of the funds, except in respect of the
Company’s obligation to pay the Placement Agent’s
fees.
The
Investor’s obligation to purchase the Shares will be subject
to (i) the delivery by the Company of the Shares in accordance
with the provisions of this Agreement, (ii) the accuracy of
the representations and warranties made by the Company and the
fulfillment of those undertakings of the Company to be fulfilled
prior to the Closing Date, including without limitation, those
contained in the Placement Agreement, (iii) the satisfaction
of the conditions to the closing set forth in the Placement
Agreement, and to the condition that the Placement Agent shall not
have: (x) terminated the Placement Agreement pursuant to the
terms thereof or (y) determined that the conditions to the
closing in the Placement Agreement have not been satisfied. The
Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Shares that
they have agreed to purchase from the Company. The Investor
understands and agrees that, in the event that the Placement Agent
in its sole discretion determines that the conditions to closing in
the Placement Agreement have not been satisfied or if the Placement
Agreement may be terminated for any other reason permitted by the
Placement Agreement, then the Placement Agent may, but shall not be
obligated to, terminate such Agreement, which shall have the effect
of terminating this Subscription Agreement pursuant to Section 4(i)
below.
(d) NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS
AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL
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 ON THE CLOSING DATE.
(e) On
the date of closing of the Offering, which shall be no later than
three business days after the date hereof (the “ Closing
Date ”), the Company shall deliver to Investor
(i) the Shares via the Depository Trust Company’s
(“ DTC ”) Deposit or Withdrawal at Custodian
system via the DTC instructions set forth on the signature page
hereto, such Shares to be registered in such name or names as
designated by the Investor on the signature page hereto. The Shares
shall be unlegended and free of any resale restrictions.
2.
Company Representations and Warranties . The Company
represents and warrants that: (a) it has full right, power and
authority to enter into this Agreement and to perform all of its
obligations hereunder; (b) this Agreement has been duly
authorized and executed by and constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms;
(c) the execution and delivery of this Agreement and the
consummation of the
transactions
contemplated hereby do not conflict with or result in a breach of
(i) the Company’s Restated Certificate of Incorporation
or Restated By-Laws, (ii) any material agreement to which the
Company is a party or by which any of its property or assets is
bound, or (iii) any laws, regulations, rules or statutes
applicable to the Company; (d) the Shares, have been duly
authorized for sale and issuance, and when the Shares are issued
and delivered by the Company against payment therefor pursuant to
this Subscription, will be validly issued, fully paid and
nonassessable; (e) the Registration Statement and any
post-effective amendment thereto, at the time it became effective,
did not contain any untrue statement of a material fact or omit to
stat
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