EXHIBIT 10.4
SECURITIES SUBSCRIPTION AGREEMENT
THIS SECURITIES SUBSCRIPTION AGREEMENT dated as of October 1, 1999 (the
"Agreement"), is executed in reliance upon the exemption from registration
afforded by Rule 505 of Regulation D ("Regulation D") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933, as
amended. Capitalized terms used herein and not defined shall have the meanings
given to them in Regulation D.
This Agreement has been executed by the undersigned "Buyer" in
connection with the private placement of certain convertible debenture
promissory notes, in the aggregate sum of $750,000.00 of Floridino's
International Holdings Inc., a corporation organized under the laws of Florida,
with its principal executive offices located at 0000 Xxxxx Xxxx 00, Xxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Seller"). Buyer hereby represents and
warrants to, and agrees with Seller as follows:
SECURITIES SUBJECT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE SECURITIES LAWS AND NEITHER THE
UNIT NOR ANY COMPONENT THEREOF OR INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE OWNER
OF SUCH UNIT, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH UNIT, OR COMPONENT THEREOF OR INTEREST THEREIN, MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS.
1. Agreement To Subscribe: Purchase Price.
(a) Subscription. The undersigned Buyers hereby subscribe for
and agree to purchase a portion of the Seller's convertible debenture promissory
notes, in the aggregate sum of $750,000.00 of Floridino's International Holdings
Inc., (hereinafter "Securities").
(b) Payment. The aggregate Purchase Price for the Securities
to be purchased by the Buyers shall that portion of the Seven Hundred Fifty
Thousand United States Dollars (U.S. $750,000.00) that each Buyer subscribes to
(the "Purchase Price"), which shall be payable to the Seller within five (5)
days of subscription to this private placement.
(c) Closing. Subject to the satisfaction of the conditions set
forth in Sections 7 and 8 hereof, the consummation of the transactions
contemplated hereby will occur on or before October 14,1999.
2. Buyer Representations and Covenants; Access to Information.
In connection with the purchase and sale of the Securities, Buyer
represents and warrants to, and covenants and agrees with Seller as follows:
(i) Buyer is purchasing the Securities for its own account and Buyer is
qualified to purchase the Securities under the laws for its jurisdiction of
residence, and is an accredited investor under the 1933 Act, and the offer and
sale of the Securities will not violate the securities or other laws of such
jurisdiction; Buyer is not, and on the closing date will not be, an affiliate of
Seller;
(ii) All offers and sales of any of the Securities by Buyer shall be
made in compliance with any applicable securities laws of any applicable
jurisdiction and in accordance with Rule 505 or pursuant to registration of
securities under the 1933 Act;
(iii) The transactions contemplated by this Agreement are not and will
not be part of a plan or scheme by Buyer, to evade the registration provisions
of the 1933 Act;
(iv) Buyer understands that the Securities are not registered under the
1933 Act and are being offered and sold to it in reliance on specific exclusions
from the registration requirements of Federal and State securities laws, and
that Seller is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Buyer set forth
herein in order to determine the applicability of such exclusions and the
suitability of Buyer and any purchaser from Buyer to acquire the Securities;
(v) Buyer has not conducted or permitted and shall not conduct or
permit any general solicitation relating to the offer and sale of any of the
Securities;
(vi) Buyer has the foil right, power and authority to enter into this
Agreement and to consummate the transaction contemplated herein. This Agreement
has been duly authorized, validly executed and delivered on behalf of Buyer and
is a valid and binding agreement in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally;
(vii) The execution and delivery of this Agreement and the consummation
of the purchase of the Securities, and the transactions contemplated by this
Agreement do not and will not conflict with or result in a breach by Buyer of
any of the terms of provisions of, or constitute a default under, the articles
of incorporation or by-laws (or similar constitutive documents) of Buyer or any
indenture, mortgage, deed of trust, or other
material agreement or instrument to which Buyer is a party or by which it or any
of its properties or assets are bound, or any existing applicable law, rule or
regulation of the United States or any State thereof or any applicable decree,
judgment or order of any Federal or State court, Federal or State regulatory
body, administrative agency or other United States governmental body having
jurisdiction over Buyer or any of its properties or assets;
(viii) All invitation, offers and sales of or in respect of, any of the
Securities, by Buyer and any distribution of Buyer of any documents relating to
any offer by it of any of the Securities will be in compliance with applicable
laws and regulations.
(ix) Buyer will not make any offer or sale of the Securities by any
means which would not comply with the laws and regulations of the territory in
which such offer or sale takes place;
(x) Buyer (or others for whom it is contracting hereunder) has been
advised to consult its own legal and tax advisors with respect to applicable
resale restrictions and applicable tax considerations and it (or others form
whom it is contracting hereunder) is solely responsible (and Seller is not in
any way responsible) for compliance with applicable resale restrictions and
applicable tax legislation;
(xi) No Government Recommendation or Approval. Buyer understands that
no Federal or State or foreign government agency has passed on or made any
recommendation or endorsement of the Securities;
(xii) Current Public Information. Buyer acknowledges that the Company
is to be a "Reporting Issuer" and it and its advisors, if any, have been
furnished with the opportunity to ask questions about, and request copies of
materials relating to, the business, finances and operations of Seller. Buyer
further acknowledges that it and its advisors, if any, have received complete
and satisfactory answers to such inquiries, to the extent made; on the basis of
the foregoing, the Buyer believes that an investment pursuant to the terms
hereof is an appropriate and suitable investment for the Buyer.
(xiii) Buyer's Sophistication. Buyer acknowledges that the purchase of
the Securities involves a high degree of risk, including the total loss of
Buyer's investment. Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Securities. Buyer understands that, at the time of issuance, the
Securities are not being registered under the 1933 Act, and therefore Buyer must
bear the economic risk of this investment for the period up to any registration.
(xiv) Tax Status. Buyer is not a "10-percent Shareholder" (as defined
in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986, as amended)
of Seller.
(xv) High Degree of Risk. The Buyer realizes that this investment
involves a high degree of risk, including the total loss of the investment.
(xvi) Ability to Bear the Risk. The Buyer is able to bear the economic
risk of the investment.
(xvii) Forward Looking Information. The Buyer acknowledges and
understands that any information provided about the Company's future plans and
prospects is uncertain and subject to all of the uncertainties inherent in
future predictions.
(xviii) Accredited Investor Status. The undersigned represents and
warrants that it is an "accredited investor" as defined in Regulation D.
(xix) Short Position. Neither the Buyer nor any of its affiliates will
directly or indirectly maintain any short position, purchase or sell put or call
options or otherwise engage in any hedging activities in any of the Securities
or any other securities of the Company until after one hundred twenty (120) days
from the closing of this transaction.
(xx) Independent Investigation. The Buyer in electing to subscribe for
the Promissory Notes hereunder, has relied solely upon the representations and
warranties of the Company set forth in this Agreement and on independent
investigation made by it and its representatives, if any, and the Buyer has been
given no oral or written representation or assurance from the Company or any
representation of the Company other than as set forth in this Agreement or in a
document executed by a duly authorized representative of the Company making
reference to this Agreement.
3. Seller Representations and Covenants.
(a) Reporting Company Status. Seller is to be a "Reporting
Issuer." Seller's Common Stock (the "Common Stock"), is currently traded on the
OTC - Bulletin Board (symbol "FDNO") and is currently obligated to file interim
financial reports with the Securities and Exchange Commission.
(b) Current Publication Information. To the extent requested
by the Buyer, Seller has furnished Buyer with copies of materials relating to
the business finances and operations of the Seller's business.
(c) Concerning the Securities. The issuance, sale and delivery
of the Promissory Notes have been duly authorized by all required corporate
action on the part of Seller, and when issued, sold and delivered in accordance
with the terms hereof and thereof for the consideration expressed herein and
therein, will be duly and validly issued, fully paid and non-assessable. The
Common Stock issuable upon conversion of the Promissory Note has been duly and
validly reserved for issuance and, upon issuance in accordance with the terms of
the Promissory Notes, shall be duly and validly issued, fully paid, and
non-assessable and will not subject to holders thereof, if such persons are
non-U.S. persons, to personal liability by reason of being such holders. There
are no preemptive rights of any shareholder of Seller.
(d) Subscription Agreement. This Agreement has been duly
authorized, validly executed and delivered on behalf of Seller and is a valid
and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
(e) Non-contravention. The execution and delivery of this
Agreement and the consummation of the issuance of the Securities and the
transactions contemplated by this Agreement do not and will not conflict with or
result in a breach by Seller of any of the terms or provisions of, or constitute
a default under, the articles of incorporation or by-laws of Seller, or any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which Seller is a party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of the United States
or any State thereof or any applicable decree, judgment or order of any Federal
or State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over Seller or any of its
properties or assets.
(f) Approvals. Seller is not aware of any authorization,
approval or consent of any U.S. governmental body which is legally required for
the issuance and sale of the Promissory Notes and the Common Stock issuable upon
conversion thereof as contemplated by this Agreement.
(g) Filings. Seller undertakes and agrees pursuant to the sale
of its securities under Regulation D to make all necessary filings in connection
with the sale of its securities as required by the laws and regulations of the
United States.
(h) No Prior Offerings. Seller has not undertaken any
offerings in the last six (6) months which should be integrated into the
transaction.
4. Exemption: Reliance on Representations. Buyer understands that the
offer and sale of the Securities are not being registered under the 1933 Act at
the time of issue.
5. Transfer Agent Instruction.
(a) Subject to section 11 hereof it shall be the Seller's
responsibility to take all necessary actions and to bear all such costs to issue
the Certificate of Common Stock as provided herein, including the responsibility
and cost for delivery of any necessary opinion letter to the transfer agent, if
so required, provided Buyer provides such certificates and information as may be
reasonably required to support that opinion. The person in whose name the
certificate of Common Stock is to be registered shall be treated as a
shareholder of record on and after the conversion date. The shares of common
stock subscribed to thereunder shall be in the name of the subscriber or their
nominees.
(b) The issuance of certificates representing the share of
Common does not in any manner imply that such shares are free from the resale
restrictions more fully described in Section 11 hereof.
6. Authorized and Issued Shares. The Seller shall at all times reserve
and have available all Common Stock necessary to comply with the terms of this
Agreement.
7. Conditions to Seller's Obligation To Sell. Seller's obligation to
sell the Securities is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement
executed by Buyer.
(b) Delivery into the closing depository of good funds by
Buyer as payment in full of the purchase price of the Securities.
(c) All of the representations and warranties of the Buyer
contained in this Agreement shall be true and correct on the Payment Date with
the same force and effect as if made on and as of the Payment Date. The Buyer
shall have performed or complied with all agreements and satisfied all
conditions on its part to be performed, complied with or satisfied at or prior
to the Payment Date.
(d) No order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the Act shall
have been issued, and no proceedings for that purpose shall have been commenced
or shall be pending or, to the knowledge of the Company, be contemplated. No
stop order suspending the sale of the Securities shall have been issued, and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, contemplated.
(e) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would prevent the issuance of the Securities. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction shall have been issued that would prevent the issuance
of the Securities.
8. Conditions To Buyer's Obligation To Purchase. Buyer's obligation to
purchase the Securities is conditioned upon:
(a) The confirmation of receipt and acceptance by Seller of
this Agreement as evidenced by execution of this Agreement by the duly
authorized officer of Seller; and
(b) delivery of the Securities to the Escrow Agent.
9. Offering Materials and Resale Restrictions. Except for this
Subscription Agreement, no offering materials and documents have been used in
connection with the
offer and sale of the Securities. The Securities have not been registered under
the 1993 Act or applicable state securities laws; neither Buyer, nor any direct
or indirect purchaser of the Securities from Buyer, may directly or indirectly
offer or sell the Securities unless the Securities are registered under 1933
Act, any applicable state securities laws, or any exemption from the
registration requirements of the 1933 Act. Such statements shall appear (1) on
the cover of any prospectus or offering circular used in connection with the
offer or sale of the Securities, (2) in the underwriting section of any
prospectus or offering circular used in connection with the offer or sale of the
Securities, and (3) in any advertisement made or issued by Seller, Buyer, any
other distributor, any of their respective affiliates, or any person acting on
behalf of any of the foregoing. In order to prevent resale transactions in
violation of state securities laws, the buyer may only engage in resale
transactions, to the extent otherwise permitted in jurisdictions in which an
applicable exemptions available. Such restriction on resales may limit the
ability of investors to resell the underlying Securities.
10. No Shareholder Approval. Seller hereby agrees that from the Closing
Date until the issuance of Common Stock upon the conversion of the Promissory
Notes, Seller will not take any action which would require Seller to seek
shareholder approval of such issuance unless such shareholder approval is
required by law or regulatory body (including but not limited to the Nasdaq
Stock Market, Inc.) as a result of the issuance of the Securities hereunder.
11. Miscellaneous.
(a) Except as specifically referenced herein, this Agreement
constitutes the entire contract between the parties, and neither party shall be
liable or bound to the other in any manner by any warranties, representations or
covenants except as specifically set forth herein. Any previous agreement among
the parties related to the transactions described herein is superseded hereby.
The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or implied, is intended to confer upon any
party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent
of Seller. Buyer is not authorized to bind Seller, or to make any
representations or warranties on behalf of Seller.
(c) Seller makes no representations or warranty with respect
to Seller, its finances, assets, business prospects or otherwise. Buyer will
advise each purchaser, if any, and potential purchaser of the Securities, of the
foregoing sentence, and that such purchaser is relying on its own investigation
with respect to all such matters, and that such purchaser will be given access
to any and all documents and Seller personnel as it may reasonably request for
such investigation.
(d) All representations and warranties contained in this
Agreement by Seller and Buyer shall survive the closing of the transactions
contemplated by this Agreement.
(e) This Agreement shall be construed in accordance with the
laws of New York applicable to contracts made and wholly to be performed within
the State of New York and shall be binding upon the successors and assigns of
each party hereto. Buyer and Seller hereby waive trial by jury and consent to
exclusive jurisdiction and venue in the State of New York. This Agreement may be
executed in counterparts, and the facsimile transmission of an executed
counterpart to this Agreement shall be effective as an original.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
FLORIDINO'S INTERNATIONAL HOLDINGS INC.
By: /s/ Xxxx Xxxxxxxxx
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Title: CEO
BUYER:
ALMOND RESOURCES LTD.
By: /s/ Xxxx Xxxxx
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, Etc.)
Name of Entity (Please Print)
By: Xxxx Xxxxx on Behalf of Almond Resources
Title: President
Address: 00 Xxxxxx Xxxx, Xxxx, Xxxxxx, Xxxxxxxx
Accepted this 14th day of October, 1999 on behalf of the Company
By: /s/ Xxxx Xxxxx
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On behalf of FIH: /s/ Xxxx Xxxxxxxxx
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Subscription on
this 14 day of October, 1999.
The undersigned hereby subscribes to the sum of $750,000 of the private
placement offered by Seller. Manner in which Title is to be held (Please Check
One):
1. Individual
2. Joint Tenants with Right of Survivorship
3. Community Property
4. Tenants in Common
5. Corporation/Partnership
6. XXX
7. Trust/Estate/Pension of Profit Sharing Plan
8. As a Custodian for____________________ under the Uniform Gift
to Minors Act of the State of_________________.
9. Married with Separate Property
X 10. Non-U.S. Citizens
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE 10 SUBSCRIBERS WHICH
ARE ENTITIES MUST COMPLETE PAGE 11
