EXHIBIT 10.8
SUBSCRIPTION AGREEMENT
Kirshner Entertainment & Technologies, Inc.
Attn: Xxx Xxxx Bian
Xx. 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxxx, China, 200436
U.S.A.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Gentlemen:
This Questionnaire is being sent to each individual who has indicated an
interest in purchasing Units offered by Kirshner Entertainment & Technologies,
Inc. (the "Company"), a Florida corporation, each Unit consisting of 62,500
shares of Series A Preferred Stock and warrants to purchase 625,000 shares of
Common Stock at a purchase price of $.10 per share expiring on July 1, 2008. The
purpose of this Questionnaire is to assure the Company that each investor will
meet the standards imposed under applicable federal and state law, as the Units
and securities issuable therein will be not be registered with the Securities
and Exchange Commission or under the laws of any state at this time.
Your answers will at all times be kept strictly confidential. However, by
signing this Questionnaire, you agree that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon under law
to establish the availability under the Securities Act of 1933, as amended, or
appropriate state laws of an exemption from registration of the private
placement.
The Units are being offered by the company on a "best efforts, basis. There is
no minimum amount of proceeds required to be sold in order to complete this
offering. Accordingly all proceeds received will be deposited directly into the
treasury of the Company. The Company reserves the right to increase the offering
by up to 25%. The Company also reserves the right to undertake separate or
additional offerings on the same or alternative terms. The minimum subscription
is for $50,000 or one Unit; however, the Company reserves the right to accept
subscriptions for a fractional Unit. The Company reserves the right to undertake
additional offerings, under the same or alternative terms.
Dated: ______ ____________________________________
Name
------------------------------------
Xxxxxx
------------------------------------
Xxxx, Xxxxx Zip
------------------------------------
Phone
1. Subscription.
Subject to the terms and conditions hereinafter set forth in this Subscription
Agreement, the undersigned hereby offers to purchase ____________________
Unit(s) for an aggregate purchase price of $_____________________ ($50,000 per
Unit).
If the Offer is accepted, the Unit(s) shall be paid for by the delivery of
$_____________________ by __________ CHECK or __________ WIRE made payable to
Kirshner Entertainment & Technologies, Inc.:
Which is being delivered contemporaneously herewith.
2. Conditions to Offer.
The offering is made subject to the following conditions: (i) that you shall
have the right to accept or reject this offer, in whole or in part, for any
reason whatsoever; (2) that the undersigned agrees to comply with the terms of
this Subscription Agreement and to execute and deliver any and all further
documents necessary to become a security holder in the Company.
The offering period for the Units is from May 1, 2005 through June 30, 2005. The
Company reserves the right to undertake additional offerings, under the same or
alternative terms.
Acceptance of this Offer shall be deemed given by the countersigning of this
Subscription Agreement on behalf of the Company.
3. Representations and Warranties of the Undersigned.
The undersigned, in order to induce the Company to accept this Offer, hereby
warrants and represents as follows:
a. The undersigned has sufficient liquid assets to sustain a loss
of the undersigned's entire investment.
b. The undersigned represents that he (or she or it) is an
Accredited Investor as that term is defined in Regulation D
promulgated under the Securities Act of 1933, as amended (the
"Act"). In general, an "Accredited Investor" is deemed to be
an institution with assets in excess of $5,000,000 or
individuals with net worth in excess of $1,000,000 or annual
income exceeding $200,000 or $300,000 jointly with their
spouse.
c. The Company has not made any other representations or
warranties to the undersigned with respect to the Company or
rendered any investment advice except as contained herein or
in the Company's Confidential Term Sheet.
d. The undersigned has not authorized any person or institution
to act as his Purchaser Representative (as that term is
defined in Regulation D of the General Rules and Regulations
under the Act) in connection with this transaction. The
undersigned has such knowledge and experience in financial,
investment and business matters that he is capable of
evaluating the merits and risks of the prospective investment
in the securities of the Company. The undersigned has
consulted with such independent legal counsel or other
advisers, as he has deemed appropriate to assist the
undersigned in evaluating his proposed investment in the
Company.
e. The undersigned represents that he (i) has adequate means of
providing for his current financial needs and possible
personal contingencies, and has no need for liquidity of
investment in the Company; (2) can afford (a) to hold
unregistered securities for an indefinite period of time and
(b) sustain a complete loss of the entire amount of the
subscription; and (2i) has not made an overall commitment to
investments which are not readily marketable which is
disproportionate so as to cause such overall commitment to
become excessive.
f. The undersigned has been afforded the opportunity to ask
questions of, and receive answers from the officers and/or
directors of the Company acting on its behalf concerning the
terms and conditions of this transaction and to obtain
any additional information, to the extent that the Company
possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the
accuracy of the information furnished; and has availed
himself of such opportunity to the extent he considers
appropriate in order to permit him to evaluate the merits and
risks of an investment in the Company. It is understood that
all documents, records and books pertaining to this
investment have been made available for inspection, and that
the books and records of the Company will be available
upon reasonable notice for inspection by investors during
reasonable business hours at its principal place of
business.
g. The undersigned acknowledges that the Units and the underlying
securities have not been registered under the Act in reliance
on an exemption for transactions by an issuer not involving a
public offering and Regulation D under the Act, and further
understands that the undersigned is purchasing the Units
without being furnished any prospectus setting forth all of
the information that may be required to be furnished under the
Act if a Prospectus were required to be delivered.
h. The undersigned further acknowledges that this offering has
not been passed upon or the merits thereof endorsed or
approved by any state or federal authorities.
i. The Units and the underlying securities being subscribed
for are being acquired solely for the account of the
undersigned for personal investment and not with a view to,
or for resale in connection with, any distribution except as
may be permitted by federal and state securities laws. By such
representation, the undersigned means that no other person
has a beneficial interest in the Units or underlying
securities subscribed for hereunder, and that no other person
has furnished or will furnish directly or indirectly,
any part of or guarantee the payment of any part of the
consideration to be paid to the Company in connection
therewith. The undersigned does not intend to dispose of all
or any part of the Units or underlying securities except in
compliance with the provisions of the Act and applicable
state securities laws, and understands that the Units are
being offered pursuant to a specific exemption under the
provisions of the Act, which exemption(s) depends, among
other things, upon the compliance with the provisions of
the Act.
j. The undersigned further represents and agrees that the
undersigned will not sell, transfer, pledge or otherwise
dispose of or encumber the Units or the underlying securities
except pursuant to the applicable rules and regulations under
the Act or applicable state securities laws, and prior to any
such sale, transfer, pledge, disposition or encumbrance, the
undersigned will, upon request, furnish the Company and its
transfer agent with an opinion of counsel satisfactory to the
Company in form and substance that registration under the Act
and any applicable state securities laws is not required.
k. The undersigned acknowledges and recognizes that while the
Company has agreed to register the Common Stock underlying the
Units under the Act, no assurances can be provided that such
Registration Statement will become effective under the Act. As
a result, sales may only be made pursuant to Rule 144 under
the Act at such time as the Company as well as the subscriber
for the Units is able to effect sales of the Common Stock
pursuant to Rule 144 or other applicable exemption.
l. The undersigned hereby agrees that the Company may insert the
following or similar legend on the face of the certificates
evidencing shares of Common Stock in compliance with the Act
or state securities laws:
m. "These securities have not been registered under the
Securities Act of 1933, as amended ("Act"), or any state
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under the Act and any applicable state securities
laws, or an opinion of counsel satisfactory to counsel to the
Company that an exemption from registration under the act and
any applicable state securities laws is available."
The undersigned certifies that each of the foregoing representations and
warranties set forth in subsections (A) through (L) inclusive of this Section 3
are true as of the date hereof and shall survive such date.
3. Indemnification.
The undersigned understands that the Units acquired as a result of the
subscription right provided in Section 1 hereof are being offered without
registration under the Act and in reliance upon the exemption for transactions
by an issuer not involving any public offering; that the availability of such
exemption is, in part, dependent upon the truthfulness and accuracy of the
representations made by the undersigned herein; that the Company will rely on
such representations in accepting any subscriptions for the Units and that the
Company may take such steps as it considers reasonable to verify the accuracy
and truthfulness of such representations in advance of accepting or rejecting
the undersigned's subscription. The undersigned agrees to indemnify and hold
harmless the Company against any damage, loss, expense or cost, including
reasonable attorneys' fees, sustained as a result of any misstatement or
omission on the undersigned's part.
4. Specific State Legends.
FOR RESIDENTS OF ALL STATES:
---------------------------
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
NOTICE TO NEW JERSEY RESIDENTS: THE ATTORNEY GENERAL OF THE STATE HAS NOT PASSED
OR ENDORSED THE MERITS OF THIS OFFERING. THE FILING OF THE WITHIN OFFERING DOES
NOT CONSTITUTE APPROVAL OF THE ISSUE OR THE SALE THEREOF BY THE BUREAU OF
SECURITIES OR THE DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW
JERSEY. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
NOTICE TO NEW YORK RESIDENTS: THIS OFFERING MEMORANDUM HAS NOT YET BEEN REVIEWED
BY THE ATTORNEY GENERAL PRIOR TO ISSUANCE AND USE. THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK HAS NOT PASSED OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THIS OFFERING MEMORANDUM DOES NOT
CONTAIN AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS MADE IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THAT WERE MADE, NOT MISLEADING. IT CONTAINS A FAIR SUMMARY OF THE MATERIAL TERMS
AND DOCUMENTS PURPORTED TO BE SUMMARIZED HEREIN.
NOTICE TO FLORIDA RESIDENTS: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMEDED, OR THE FLORIDA SECURITIES ACT, BY REASON OF
SPECIFIC EXEMPTIONS THEREUNDER RELATING TO THE LIMITED AVAILABILITY OF THE
OFFERING. THESE SECURITIES CANNOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
TO ANY PERSON OR ENTITY UNLESS SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES ACT OF THIS STATE, IF SUCH REGISTRATION
IS REQUIRED.
PURSUANT TO SECTION 517.061(11) OF THE FLORIDA SECURITIES ACT, WHERE SALES ARE
MADE TO FIVE (5) OR MORE PERSONS IN FLORIDA, ANY SALE MADE PURSUANT TO
SUBSECTION 517.061(11) OF THE FLORIDA SECURITIES ACT SHALL BE VOIDABLE BY SUCH
FLORIDA PURCHASER EITHER WITHIN THREE DAYS AFTER THE FIRST TENDER OF
CONSIDERATION IS MADE BY THE PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER, OR
AN ESCROW AGENT, OR WITHIN THREE (3) DAYS AFTER THE AVAILABILITY OF THAT
PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER.
---------------------
Initial if Florida Resident
5. Jurisdiction.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Florida without giving effect to any choice or
conflict of law provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Florida. The parties further: (i) agree that any legal
suit, action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in any Federal or State court of competent jurisdiction
within the County of Broward, State of Florida, (2) waive any objection that
they may have now or hereafter to the venue of any such suit, action or
proceeding, and (2i) irrevocably consent to the in personam jurisdiction of any
Federal or State court of competent jurisdiction within the County of Broward,
State of Florida in any such suit, action or proceeding. The parties each
further agree to accept and acknowledge service of any and all process which may
be served in any such suit, action or proceeding in a Federal or State court of
competent jurisdiction within the County of Broward, State of Florida, and that
service of process upon the parties mailed by certified mail to their respective
addresses shall be deemed in every respect effective service of process upon the
parties, in any action or proceeding.
6. No Waiver.
Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the undersigned, the undersigned does not thereby or
in any manner waive any rights granted to the undersigned under federal or state
securities laws.
7. Revocation.
The undersigned agrees that he shall not cancel, terminate or revoke this
Subscription Agreement or any agreement of the undersigned made hereunder other
than as set forth under Section 5 above, and that this Subscription Agreement
shall survive the death or disability of the undersigned.
8. Termination of Subscription Agreement.
If the Company elects to cancel this Subscription Agreement, provided that it
returns to the undersigned, without interest and without deduction, all sums
paid by the undersigned, this Offer shall be null and void and of no further
force and effect, and no party shall have any rights against any other party
hereunder.
9. Miscellaneous.
All notices or other communications given or made hereunder shall be in writing
and shall be mailed by registered or certified mail, return receipt requested,
postage prepaid, to the undersigned at his address set forth below and to
Kirshner Entertainment & Technologies, Inc.. Attention: Xxx Xxxx Bian 0000
Xxxxxx Xx, Xxxxx 000, Xxxx Xxxxx, XX 00000
This Subscription Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and may be amended only by a
writing executed by all parties.
The provisions of this Subscription Agreement shall survive the execution
thereof.
10. Certification.
The undersigned certifies that he has read this entire Subscription Agreement
and that every statement on his part made and set forth herein is true and
complete.
11. Anti Dilution.
The Series A Preferred Stock shall carry anti dilution rights; in the event the
Company issues shares of common stock at a price less than $.08 prior to
December 31, 2006 the conversion price of the 6% Series A Preferred Stock shall
be reduced to a price equal to the lowest value of the common shares issued by
the Company. The anti dilution rights shall be extended to the common shares
issued upon conversion of the Warrants.
IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement on
the date his signature has been subscribed and sworn to below.
The Shares are to be issued in:
(check one) ______________________________________
---------
(print name of investor)
_____ Individual name
--------------------------------------
_____ Joint tenants with rights of (sign name of Investor)
survivorship
--------------------------------------
_____ Tenants in the entirety (print joint name of investor)
--------------------------------------
(sign name of joint investor)
_____ Corporation (an officer must ______________________________________
sign) (print name of Corporation/Partnership
/Trust)
_____ Partnership (all general _____________________________________
Partners must sign) (print name of Officer/General Partner
/Trustee)
_____ Trust (all trustees must sign) _____________________________________
(print name of Officer/General Partner
/Trustee)
--------------------------------------
(sign name of Officer/General Partner
/Trustee)
--------------------------------------
(sign name of Officer/General Partner
/Trustee)
KIRSHNER ENTERTAINMENT & TECHNOLOGIES, INC.
Accepted as of this date _____________________________________
Xxx Xxxx Bian
__________ Chief Executive Officer
SUBSCRIPTION AGREEMENT
Kirshner Entertainment & Technologies, Inc.
Attn: Xxx Xxxx Bian
Xx. 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxxx, China, 200436
U.S.A.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Gentlemen:
This Questionnaire is being sent to each individual who has indicated an
interest in purchasing Units offered by Kirshner Entertainment & Technologies,
Inc. (the "Company"), a Florida corporation, each Unit consisting of 62,500
shares of Series A Preferred Stock and warrants to purchase 625,000 shares of
Common Stock at a purchase price of $.10 per share expiring on July 1, 2008. The
purpose of this Questionnaire is to assure the Company that each investor will
meet the standards imposed under applicable federal and state law, as the Units
and securities issuable therein will be not be registered with the Securities
and Exchange Commission or under the laws of any state at this time.
Your answers will at all times be kept strictly confidential. However, by
signing this Questionnaire, you agree that the Company may present this
Questionnaire to such parties as it deems appropriate if called upon under law
to establish the availability under the Securities Act of 1933, as amended, or
appropriate state laws of an exemption from registration of the private
placement.
The Units are being offered by the company on a "best efforts, basis. There is
no minimum amount of proceeds required to be sold in order to complete this
offering. Accordingly all proceeds received will be deposited directly into the
treasury of the Company. The Company reserves the right to increase the offering
by up to 25%. The Company also reserves the right to undertake separate or
additional offerings on the same or alternative terms. The minimum subscription
is for $50,000 or one Unit; however, the Company reserves the right to accept
subscriptions for a fractional Unit. The Company reserves the right to undertake
additional offerings, under the same or alternative terms.
Dated: ______ ____________________________________
Name
------------------------------------
Xxxxxx
------------------------------------
Xxxx, Xxxxx Zip
------------------------------------
Phone
1. Subscription.
Subject to the terms and conditions hereinafter set forth in this Subscription
Agreement, the undersigned hereby offers to purchase ____________________
Unit(s) for an aggregate purchase price of $_____________________ ($50,000 per
Unit).
If the Offer is accepted, the Unit(s) shall be paid for by the delivery of
$_____________________ by __________ CHECK or __________ WIRE made payable to
Kirshner Entertainment & Technologies, Inc..:
Which is being delivered contemporaneously herewith.
2. Conditions to Offer.
The offering is made subject to the following conditions: (i) that you shall
have the right to accept or reject this offer, in whole or in part, for any
reason whatsoever; (2) that the undersigned agrees to comply with the terms of
this Subscription Agreement and to execute and deliver any and all further
documents necessary to become a security holder in the Company.
The offering period for the Units is from May 1, 2005 through June 30, 2005. The
Company reserves the right to undertake additional offerings, under the same or
alternative terms.
Acceptance of this Offer shall be deemed given by the countersigning of this
Subscription Agreement on behalf of the Company.
3. Offshore Transaction. Undersigned represents and warrants to the Company
as follows:
a. Undersigned is not a "U.S. person," as that term is defined in
Regulation S promulgated under the Securities Act. As used
herein, "U.S. person" means:
i. Any natural person resident in the United States;
ii. Any partnership or corporation organized or incorporated under
the laws of the United States; iii. Any estate of which any
executor or administrator is a U.S. person; iv. Any trust of
which any trustee is a U.S. person; v. Any agency or branch of
a foreign entity located in the United States; vi. Any
non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
vii. Any discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the
United States; and
viii. Any partnership or corporation if:
1. Organized or incorporated under the laws of any foreign
jurisdiction; and
2. Formed by a U.S. person principally for the purpose of
investing in securities not registered under the Act, unless
it is organized or incorporated, and owned, by accredited
investors (as defined in Rule 501(a)) who are not natural
persons, estates or trusts.
b. At the time Undersigned executed and delivered this Agreement,
Undersigned was outside the United States and is outside of
the United States as of the date of the execution and delivery
of this Agreement.
c. Undersigned is acquiring the Units for its own account and not
on behalf of any U.S. person, and the sale has not been
pre-arranged with a purchaser in the United States.
4. Indemnification.
The undersigned understands that the Units acquired as a result of the
subscription right provided in Section 1 hereof are being offered without
registration under the Act and in reliance upon the exemption for transactions
by an issuer not involving any public offering; that the availability of such
exemption is, in part, dependent upon the truthfulness and accuracy of the
representations made by the undersigned herein; that the Company will rely on
such representations in accepting any subscriptions for the Units and that the
Company may take such steps as it considers reasonable to verify the accuracy
and truthfulness of such representations in advance of accepting or rejecting
the undersigned's subscription. The undersigned agrees to indemnify and hold
harmless the Company against any damage, loss, expense or cost, including
reasonable attorneys' fees, sustained as a result of any misstatement or
omission on the undersigned's part.
5. Specific State Legends.
FOR RESIDENTS OF ALL STATES:
---------------------------
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
NOTICE TO NEW JERSEY RESIDENTS: THE ATTORNEY GENERAL OF THE STATE HAS NOT PASSED
OR ENDORSED THE MERITS OF THIS OFFERING. THE FILING OF THE WITHIN OFFERING DOES
NOT CONSTITUTE APPROVAL OF THE ISSUE OR THE SALE THEREOF BY THE BUREAU OF
SECURITIES OR THE DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW
JERSEY. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
NOTICE TO NEW YORK RESIDENTS: THIS OFFERING MEMORANDUM HAS NOT YET BEEN REVIEWED
BY THE ATTORNEY GENERAL PRIOR TO ISSUANCE AND USE. THE ATTORNEY GENERAL OF THE
STATE OF NEW YORK HAS NOT PASSED OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THIS OFFERING MEMORANDUM DOES NOT
CONTAIN AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS MADE IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THAT WERE MADE, NOT MISLEADING. IT CONTAINS A FAIR SUMMARY OF THE MATERIAL TERMS
AND DOCUMENTS PURPORTED TO BE SUMMARIZED HEREIN.
NOTICE TO FLORIDA RESIDENTS: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMEDED, OR THE FLORIDA SECURITIES ACT, BY REASON OF
SPECIFIC EXEMPTIONS THEREUNDER RELATING TO THE LIMITED AVAILABILITY OF THE
OFFERING. THESE SECURITIES CANNOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
TO ANY PERSON OR ENTITY UNLESS SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES ACT OF THIS STATE, IF SUCH REGISTRATION
IS REQUIRED.
PURSUANT TO SECTION 517.061(11) OF THE FLORIDA SECURITIES ACT, WHERE SALES ARE
MADE TO FIVE (5) OR MORE PERSONS IN FLORIDA, ANY SALE MADE PURSUANT TO
SUBSECTION 517.061(11) OF THE FLORIDA SECURITIES ACT SHALL BE VOIDABLE BY SUCH
FLORIDA PURCHASER EITHER WITHIN THREE DAYS AFTER THE FIRST TENDER OF
CONSIDERATION IS MADE BY THE PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER, OR
AN ESCROW AGENT, OR WITHIN THREE (3) DAYS AFTER THE AVAILABILITY OF THAT
PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER.
---------------------
Initial if Florida Resident
6. Jurisdiction.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Florida without giving effect to any choice or
conflict of law provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Florida. The parties further: (i) agree that any legal
suit, action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in any Federal or State court of competent jurisdiction
within the County of Broward, State of Florida, (2) waive any objection that
they may have now or hereafter to the venue of any such suit, action or
proceeding, and (2i) irrevocably consent to the in personam jurisdiction of any
Federal or State court of competent jurisdiction within the County of Broward,
State of Florida in any such suit, action or proceeding. The parties each
further agree to accept and acknowledge service of any and all process which may
be served in any such suit, action or proceeding in a Federal or State court of
competent jurisdiction within the County of Broward, State of Florida, and that
service of process upon the parties mailed by certified mail to their respective
addresses shall be deemed in every respect effective service of process upon the
parties, in any action or proceeding.
7. No Waiver.
Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the undersigned, the undersigned does not thereby or
in any manner waive any rights granted to the undersigned under federal or state
securities laws.
8. Revocation.
The undersigned agrees that he shall not cancel, terminate or revoke this
Subscription Agreement or any agreement of the undersigned made hereunder other
than as set forth under Section 5 above, and that this Subscription Agreement
shall survive the death or disability of the undersigned.
9. Termination of Subscription Agreement.
If the Company elects to cancel this Subscription Agreement, provided that it
returns to the undersigned, without interest and without deduction, all sums
paid by the undersigned, this Offer shall be null and void and of no further
force and effect, and no party shall have any rights against any other party
hereunder.
10. Miscellaneous.
All notices or other communications given or made hereunder shall be in writing
and shall be mailed by registered or certified mail, return receipt requested,
postage prepaid, to the undersigned at his address set forth below and to
Kirshner Entertainment & Technologies, Inc.. Attention: Xxx Xxxx Bian 0000
Xxxxxx Xx, Xxxxx 000, Xxxx Xxxxx, XX 00000
This Subscription Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and may be amended only by a
writing executed by all parties.
The provisions of this Subscription Agreement shall survive the execution
thereof.
11. Certification.
The undersigned certifies that he has read this entire Subscription Agreement
and that every statement on his part made and set forth herein is true and
complete.
12. Anti Dilution.
The Series A Preferred Stock shall carry anti dilution rights; in the event the
Company issues shares of common stock at a price less than $.08 prior to
December 31, 2006 the conversion price of the 6% Series A Preferred Stock shall
be reduced to a price equal to the lowest value of the common shares issued by
the Company. The anti dilution rights shall be extended to the common shares
issued upon conversion of the Warrants.
IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement on
the date his signature has been subscribed and sworn to below.
The Shares are to be issued in:
(check one) ______________________________________
---------
(print name of investor)
_____ Individual name
--------------------------------------
_____ Joint tenants with rights of (sign name of Investor)
survivorship
--------------------------------------
_____ Tenants in the entirety (print joint name of investor)
--------------------------------------
(sign name of joint investor)
_____ Corporation (an officer must ______________________________________
sign) (print name of Corporation/Partnership
/Trust)
_____ Partnership (all general _____________________________________
Partners must sign) (print name of Officer/General Partner
/Trustee)
_____ Trust (all trustees must sign) _____________________________________
(print name of Officer/General Partner
/Trustee)
--------------------------------------
(sign name of Officer/General Partner
/Trustee)
--------------------------------------
(sign name of Officer/General Partner
/Trustee)
KIRSHNER ENTERTAINMENT & TECHNOLOGIES, INC.
Accepted as of this date _____________________________________
Xxx Xxxx Bian
__________ Chief Executive Officer
PURCHASER QUESTIONNAIRE
Gentlemen:
The information contained herein is being furnished to the Company in order that
it may determine whether offers of subscriptions for the Units may be made to
me. I understand that the information is needed for you to determine whether you
have reasonable grounds to believe that I am an "Accredited Investor" as that
term is defined in Regulation D promulgated under the Act, or am otherwise
qualified to make an investment in the Company in accordance with the investment
standards established by the Company, and that I have such knowledge and
experience in financial and business matters that I am capable of evaluating the
merits and risks of the proposed investment in the Company. I understand that
(a) you will rely on the information contained herein for purposes of such
determination, (b) the Units, and the underlying securities will not be
registered under the Act in reliance upon the exemptions from registration
afforded under the Act, (c) the Units, and the underlying securities will not be
registered under the securities laws of any state in reliance upon similar
exemptions, and (d) this questionnaire is not an offer to purchase the Units in
any case where such offer would not be legally permitted.
The Company and its agents, employees or representatives will keep information
contained in this questionnaire confidential. I understand, however, that the
Company may have the need to present it to such parties, as it deems advisable
in order to establish the applicability under any federal or state securities
laws of an exemption from registration.
In accordance with the foregoing, the following representations and information
are hereby made and furnished:
Please answer all questions. If the answer is "none" or "not applicable," please
so state.
INFORMATION REQUIRED OF EACH PROSPECTIVE INVESTOR:
1.
____________________________________
(NAME)
2.
_____________________________________
(D.O.B.)
3.
_____________________________________
(# Of DEPENDENTS)
4. _____________________________________
(MARITAL STATUS)
5.
_____________________________________
(CITIZENSHIP)
6.
_____________________________________
(TELEPHONE)
7. _____________________________________
(SOCIAL SECURITY/TAX ID #)
8. _____________________________________
(ADDRESS)
-------------------------------------
(ADDRESS)
9. _____________________________________
(STATE IN WHICH YOU ARE LICENSED TO
DRIVE)
-------------------------------------
(STATE IN WHICH YOU ARE LICENSED TO
VOTE)
10.
-------------------------------------
(STATE IN WHICH YOU FILE INCOME
TAXES)
11.
-------------------------------------
(EMPLOYER)
12.
-------------------------------------
(POSITION/TITLE)
13.
-------------------------------------
(BUSINESS ADDRESS)
14.
-------------------------------------
(BUSINESS ADDRESS)
15.
-------------------------------------
(BUSINESS TELEPHONE)
16.
17. If Individual:
___ $ 50,000 - $100,000
(a) Individual income during 2004: ___ $100,000 - $200,000
(Exclusive of spouse's income) ___ Above $200,000
___ $ 50,000 - $100,000
(b) Individual income during 2003: ___ $ 100,000 - $200,000
(Exclusive of spouse's income) ___ Above $200,000
(c) Estimated Individual income ___ $ 50,000 - $100,000
during 2005: ___ $100,000 - $200,000
(Exclusive of spouse's income) ___ Above $200,000
18. If joint: ___ $ 100,000 - $300,000
(a) Joint income during 2004: ___ Above $300,000
(Inclusive of spouse's income)
___ $ 100,000 - $300,000
(b) Joint income during 2003: ___ Above $300,000
(Inclusive of spouse's income)
(c) Estimated Joint income
during 2005: ___ $100,000 - $300,000
(Inclusive of spouse's income) ___ Above $300,000
___ Below $1,000,000
19. Estimated Net Worth
___ Above $1,000,000
The term "net worth" means the excess of total assets over total liabilities. In
computing net worth, the principal residence of the investor must be valued at
cost, including costs of improvements, or at recently appraised value by an
institutional lender making a secured loan.
20. Total Assets if a corporation
or other entity: ___ Under $5,000,000
___ Over $5,000,000
21. Are you involved in any litigation, which, if an adverse decision occurred,
would materially affect your financial condition?
Yes No If yes, please provide details:
----- -----
22. I consider myself to be an experienced and sophisticated investor or am
advised by a qualified investment advisor, all as required under the various
securities laws and regulations:
Yes No .
----- ----- -----
23. I understand the full nature and risk of an investment in the Units, and I
can afford the complete loss of my entire investment.
Yes No .
----- ----- -----
24. I am able to bear the economic risk of an investment in the Units for an
indefinite period of time and understand that an investment in the Units and the
underlying securities is illiquid.
Yes No .
----- ----- ----- -----
25. I further understand that should I exercise my right to acquire the Units, I
will be required to agree not to dispose of the Units or the underlying
securities except in compliance with Rule 144 under the Act or any other
conditions contained in the accompanying Subscription Agreement.
Yes No .
----- -----
26. Have you participated in other private placements of securities? Yes No
.
27. What percentage of your current investments are comprised of private
placements?
10% or less 11% to 25% 26% to 50% 51% or more
---- ---- ---- ----
28. I understand that the Company and the Placement Agent will be relying on the
accuracy and completeness of my responses to the foregoing questions and I
represent and warrant to the Company and the Placement Agent as follows:
a. The answers to the above questions are complete and correct and may be relied
upon by the Company and the Placement Agent whether the offering in which I
propose to participate is exempt from registration under the Act and the
securities laws of certain states;
b. I will notify the Company and the Placement Agent immediately of any material
change in any statement made herein occurring prior to the closing of any
purchase by me of an interest in the Company; and
c. I have sufficient knowledge and experience in financial and business matters
to evaluate the merits and risks of the prospective investment; I am able to
bear the economic risk of the investment and currently could afford a complete
loss of such investment.
IN WITNESS WHEREOF, I have executed this Purchaser Questionnaire this
__________________ day of _______________________, 2005, and declare that it is
truthful and correct to the best of my knowledge.
----------------------------------------- --------------------------------
Signature of Prospective Investor Signature of Prospective Investor
----------------------------------------- --------------------------------
Print Name Print Name
Approved by Company:
Kirshner Entertainment & Technologies, Inc.
-----------------------------------------
Signature
-----------------------------------------
Print Name
-----------------------------------------
Title
--------------
Date
