SUBSCRIPTION AGREEMENT
Date: April 01, 1999
CACTUS NEW MEDIA I, Inc.
C/o Xxxxx Xxxxxx
Attorney at Law
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xx. 00000
RE: Subscription for Shares
Ladies and Gentlemen:
1. Acknowledgement and Adoption. The undersigned (herein the "Subscriber")
hereby acknowledges that he has received a Confidential Private Offering
Memorandum, No. ____ , which includes, among other things, pertinent financial
and business information regarding CACTUS NEW MEDIA, Inc. (the "Company") and
its present operations, together with all such other information as has been
requested by him from the Company (all of which information Subscriber
acknowledges he has read and understands) so that the undersigned may properly
make an informed investment decision concerning the subscription for the
Company's securities pursuant to which this Agreement is being made. Subscriber
further acknowledges that, except as specifically set forth herein or in the
information provided to him by the Company, no representations or warranties
have been made to the undersigned, or to his advisers by the Company or by any
officer, director, employees or by any person acting in the Company's behalf,
and the undersigned has not relied upon any information concerning this
Offering, written or oral, other than that provided by the Company.
2. Subscription. Subscriber irrevocably Subscribes for and agrees to purchase
the number of Shares referred to on the signature page of this Agreement under
the conditions described herein. Subscriber delivers herewith a check in the
amount required to pay for his Subscription as indicated in the "Instructions
for Completion of Subscription Agreement" attached hereto.
3. Escrow Provisions. Since this offering is being conducted on a strict "best
efforts" basis, all funds of Subscribers will be immediately deposited with the
Company and will NOT be segregated in a special escrow account. See "RISK
FACTORS." All proceeds from this Offering shall be used by the Company as set
forth under the caption "USE OF PROCEEDS" in the Confidential Private Offering
Memorandum.
4. Subscription Not Binding Until Accepted. This Subscription is not binding on
the Company until it is accepted as evidenced by the signature of an authorized
officer of the Company. The Company had the right to reject this Subscription in
whole or in part for any reason whatsoever. In the event of rejection of this
Subscription, the Company will promptly returned to the Subscriber by mail, a
check in the amount paid by the Subscriber without interest thereon or deduction
for expenses, and this Subscription Agreement shall thereafter have no further
force or effect.
5. Subscriber Representations, Warranties and Covenants.
Subscriber hereby acknowledges, represents and warrants to, and agrees with, the
Company and any other persons acting as selling agents as follows:
(a) The Subscriber is acquiring the Share for his own
account, as principal, for investment and not with a view to resale,
distribution or fractionalization in whole or in part, and has no present
agreement, understanding or arrangement to subdivide, sell, assign, or otherwise
dispose of all or any part of the 'shares;
(b) The Subscriber acknowledges his understanding that the
Offering and sale of the Shares is intended to be exempt from registration under
the Securities Xxx 0000 (the "Securities Act") by virtue of Section 4(2) of the
Securities Act Regulation D adopted thereunder, and Rule 504 in particular, that
except for purchasers who are foreign residents or residents of states where
this offering has been qualified for trading, the Shares can not be sold,
pledged, assigned or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from
such registration is available. The Subscriber also understands that sales or
transfers of his a Shares may be further restricted by the provisions of certain
state securities laws;
(c) The Subscriber further understands and agrees that the
Company shall be under no obligation whatsoever to include any of said Shares in
any future registration statement filed under the Securities Act and that,
consequently, except for foreign residents and residents of states where this
offering has been qualified for trading, the sale or transfer thereof in the
future will be subject to significant restrictions as provided under the
Securities Act and certain state securities laws;
(d) The Subscriber (i) by himself or together with his
advisor(s), has such knowledge and experience in financial, business and tax
matters that the Subscriber is capable of evaluating the merits of the
prospective investment in the Company and making an investment decision with
respect to the Company; and (ii) Subscriber is able to bear the risk of this
investment;
(e) The Subscriber has been given the opportunity to ask
questions of, and receive answers from, the officers and directors of the
Company or the Company's representatives concerning the terms and conditions of
this Offering and other matters pertaining to this investment, and has been
given the opportunity to obtain any additional information which the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of the information provided;
(f) Other than the information contained in the aforesaid
Confidential Private Offering Memorandum, or other information, if any, given to
the Subscriber as described herein, no representations or warranties have been
made to the undersigned by the Company or any other person in connection with
this Offering, or any officer, employee, agent, affiliate or subsidiary of any
of them;
(g) If the Subscriber is a corporation, partnership, trust
or other entity, it is authorized and qualified to purchase the securities
indicated in this Subscription Agreement and authorized to make its capital
contribution to the Company and otherwise to comply with its obligations under
this Subscription Agreement, and the person signing this Subscription Agreement
on behalf of such entity had been duly authorized by such entity to do so;
(h) If the Subscriber is an individual, he is over 21 years
of age and is a citizen and resident of the state or country indicated herein;
or, if the Subscriber is a partnership, trust or other entity, each equity owner
of such entity is over 21 years of age and a citizen of the country
indicated herein; or if the Subscriber is a corporation, it is duly organized
under the laws of the country set forth herein and if of the United States then
also of the state set forth herein;
(i) Any information which the Subscriber has heretofore
furnished to the Company in the Purchaser Questionnaire and in this Subscription
Agreement, including information with respect to his financial position,
investment objectives and business experience, is correct and complete as of the
date of this Subscription Agreement and if there should be any material change
in such information prior to his purchase of the Shares herein, he will
immediately furnish such revised or corrected information to the Company;
(j) ALL SUBSCRIBERS HERETO WHO ARE NEW YORK INVESTORS ARE
REQUIRED TO REPRESENT THAT THEY UNDERSTANT THAT THE OFFERING MAY BE MADE ONLY TO
THOSE NON-ACCREDITED RESIDENTS OF NEW YORK WHO (i) HAVE A NET WORTH ( ALONE OR
JOINTLY WITH A SPOUSE, BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES ) OF
THREE TIMES THE AMOUNT OF INVESTMENT AND AN ADJUSTED GROSS INCOME ( ALONE OR
JOINTLY WITH A SPOUSE ) OF $75,000 OR (ii) A NET WORTH (ALONE OR JOINTLY WITH A
SPOUSE, BUT EXCLUSIVE OF HOME FURNISHINGS AND AUTOMOBILES) OF 5 TIMES THE AMOUNT
OF THE INVESTMENT. FURTHER, BY SIGNING BELOW ALL NON- ACCREDITED NEW YORK
INVESTORS CONFIRM THAT THEY MEET THE FOREGOING CRITERIA FOR INVESTMENT:
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(signature by New York residents only)
6. Indemnity. The Subscriber agrees to indemnify and hold harmless
the Company, its officers and directors or any other persons participating in
the sale of Shares against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
litigation commenced or threatened or with respect to any claim) arising out of
or based upon any breach of or failure by the Subscriber herein or in any other
document furnished by the Subscriber to any of the foregoing in connection with
this transaction.
7. Modification. Neither this Subscription Agreement nor any
provisions hereof shall be modified, changed, discharged or terminated except by
an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
8. Revocability. Except as may be required by law in certain
jurisdictions, this Subscription Agreement is irrevocable and when signed, may
not be withdrawn by the Subscriber in whole or in part without the consent of
the Company.
9. Notices. All notices, consents, requests, demands, offers,
reports and other communications required or permitted to be given pursuant to
this Subscription Agreement shall be in writing and shall be considered properly
given or made when personally delivered to the party entitled thereto, or when
sent by United States mail in a sealed envelope, with postage prepaid,
addressed, if to the Company, to the address given above, and if to the
Subscriber, to the address set forth opposite the Subscriber's signature on the
counterpart of this Subscription Agreement that he originally executed and
delivered to the Company. The Company may change its address by giving notice to
all Subscribers.
10. Counterparts. This agreement may be executed in counterpart
copies, each of which shall be considered an original and all of which
constitutes one and the same instrument binding on all the parties,
notwithstanding that all parties are not signatories to the same counterpart.
11. Successors and Assigns. This Subscription Agreement and all of
the terms and provisions hereof shall be binding upon and inure to the benefit
of the parties and their respective heirs, executors, administrators,
successors, trustees, legal representatives and assigns. If the Subscriber is
more than one person, the obligations of the Subscriber shall be joint and
several and the agreements, representations warranties and acknowledgements
herein contained shall be deemed to be made by and be binding upon each such
person and his heirs, executors, administrators, successors, representatives and
assigns.
12. Assignability. This Subscription Agreement is not transferable
by the Subscriber.
13. Applicable Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York.
INVESTORS QUESTIONAIRE
THIS QUESTIONNAIRE MUST BE COMPLETED BY ALL SUBSCRIBERS TO THIS OFFERING. THE
INFORMATION CONTAINED HEREIN WILL BE KEPT IN STRICT CONFIDENCE AND IS REQUIRED
IN ORDER TO ESTABLISH AND CONFIRM THE COMPANY'S COMPLIANCE WITH APPLICABLE
PROVISIONS OF FEDERAL AND STATE SECURITIES LWAS AS THEY RELATE TO THIS OFFERING.
NO SUBSCRIPTION WILL BE CONSIDERED UNLESS THIS QUESTIONNAIRE IS COMPLETED AND
RETURNED WITH THE SUBSCRIPTION DOCUMENTS.
PLEASE ANSWER ALL QUESTIONS AS COMPLETELY AS POSSIBLE. IF YOU NEED ADDITIONAL
SPACE FOR THE ANSWER TO ANY QUESTIONS PLEASE ATTACH SEPARATE SHEETS WITH THE
QUESTION BEING ANSWERED CLEARLY MARKED THEREON. IF YOU BELIEVE THAT ANY QUESTION
DOES NOT APPLY TO YOU OR TO YOUR CIRCUMSTANCES PLEASE XXXX THE SPACE PROVIDED
FOR AN ANSWERS "N/A" OR "NOT APPLICABLE."
IF THIS INVESTMENT IS MADE IN MORE THAN ONE NAME, PLEASE COMPLET THIS
QUESTIONNAIRE FOR EACH PERSON MAKING THE INVESTMENT. IF THIS INVESTMENT IS BEING
MADE BY A PARTNERSHIP, PLEASE COMPLETE THIS QUESTIONNAIRE FOR EACH PARTNER. IF
THIS INVESTMENT IS BEING MAD BY A CORPORATION, PLEASE COMPLETE THIS
QUESTIONNAIRE FOR EACH OFFICER AND DIRECTOR.
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Please provide the following general information:
General Biographical Information:
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Name Home Address - No. and Street
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Social Security No. Federal City and State or Country
Taxpayer I.D. No.
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1. Are you a U.S. Citizen? Yes No
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If "No" what country are you a citizen of?
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2. Do you have a residence in the U.S.? Yes No
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If "Yes," where?
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3. Do you have any formal education beyond
High School level or its equivalent? Yes No
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If "Yes," please specify:
a) number of years of formal education:
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b) degree(s) received - include year:
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4. What is your occupation?
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5. Name of Employer(s) during past 5 years?
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6. What is your martial status?
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7. What is your age at your most recent birthday?
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General Financial Information:
8. Your present total net worth is
____ less than $100,000US
____ over $100,000US but less than
$500,000US
____ over $500,000US but less than
$1,000,000US
____ over $1,000,000US
9. During the past two (2) years, your annual
income was:
____ less than $1000,000US
____ over $100,000US but less than
$200,000US
____ over $200,00US
10. During the present year, you expect your
annual income will be: ____ less than $100,00US
____ over $100,000US but less than
$200,000US
____ over $200,00US.
11. Are the funds being used for this
investment borrowed? ______ Yes ______ No
If "Yes," from where?
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12. Do you presently anticipate a need for
any part of the funds being invested
during the next 3 years? _______ Yes ______ No
13. Does anyone contribute to your support
or do you have any other source of
income other than as stated above?
Note: The answer to this question is
optional and will be used to evaluate
your ability to bear the economic risk
of this investment only. _______ Yes _______ No
If "Yes," what is the source of this
additional income and how much do you
expect it to be on an annual basis?
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General Investment Information:
14. Have you ever invested in a private
placement of securities before? _______ Yes _______ No
If "Yes," how much such investments
have you made during the past 5 years
and what were the amounts invested?
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15. Do you invest in the stock market? _______ Yes _______ No
If "Yes," at present, your total
investments equal: _____ Less than $25,000US
_____ over $25,000 US but less
than
$100,000US
_____ over $100,000 US but less
than
$250,000US
_____ over $250,000US
16. In connection with your
subscription for Shares herein,
has anyone made you any promise
about when you will be able to
sell the Shares or were you made
any promise about the price at
which you may, in the future, be
able to sell the Shares? _______ Yes _______ No
If "yes" please explain:
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After completing the above questions, please sign this questionnaire below and
return it with your subscription documents.
Dated: April ____, 1999
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Signature
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned executed this Subscription
Agreement this ___day of April 1999.
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Name of Investor (Please Print): | |
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Name of Investor (if joint subscriber) | |
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Investor's Resident Address: Amount Subscribed For:
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(Number of Shares)
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Social Security Number and/or $
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Taxpayer identification Number: ------------------------------
(Amount in Words)
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If a Corporation:
Country of Incorporation:
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State: of Incorporation:
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If a Partnership:
Countries of citizenship of members:
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Countries of residence of members:
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This Subscription Agreement is Accepted this __ day of April, 1999:
COMPANY:
CACTUS NEW MEDIA I, INC.
By: /s/ X X Xxxxxxx, President
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X X Xxxxxxx, President
