EXHIBIT 10.1
IVP TECHNOLOGY CORPORATION
D.B.A. ACTIVECORE TECHNOLOGIES, INC.
(A NEVADA CORPORATION)
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SUBSCRIPTION AGREEMENT
CONFIDENTIAL
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IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE ENTITY CREATING THE SHARES AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SECURITIES OFFERED HEREIN HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY, AND NO SUCH AUTHORITIES HAVE CONFIRMED THE ACCURACY OR DETERMINED THE
ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE SECURITIES OFFERED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES ARE BEING OFFERED AND SOLD
UNDER THE EXEMPTION PROVIDED BY SECTION 4(2) OF THE ACT, AND PURSUANT TO
REGULATION D OF RULE 506 THEREUNDER. A PURCHASER OF THE SECURUTIES OFFERED
HEREIN MUST BE PREPARED TO BEAR THE ENTIRE ECONOMIC RISK OF THEIR INVESTMENT FOR
AN INDEFINITE PERIOD OF TIME BECAUSE THE OFFERED SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE ACT AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE
SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. EXCEPT
FOR THE LIMITED RIGHTS PROVIDED HEREIN TO AN INVESTOR TO COMPEL REGISTRATION OF
THE SECURITIES OFFERED HEREIN, THE ISSUER IS NOT OBLIGATED TO REGISTER SUCH
SECURITIES UNDER THE ACT.
IVP TECHNOLOGY CORPORATION
D.B.A. ACTIVECORE TECHNOLOGIES, INC.
0000 XXXXXXXX XXXXX, XXXXX 000
XXXX, XX 00000
Ladies and Gentlemen:
The undersigned ("SUBSCRIBER"), by executing and delivering this
Subscription Agreement (the "Agreement") prepared by IVP Technology Corporation
d.b.a. ActiveCore Technologies, Inc. (the "COMPANY") in connection with the
purchase of the Offered Securities (as defined below), and by delivering payment
of the subscription amount described herein, hereby agrees to purchase the
Offered Securities on the terms, and subject to the conditions, hereinafter set
forth.
1. SUBSCRIPTION. Subscriber hereby subscribes for and agrees to
purchase the amount of the following securities of the Company set forth on the
signature page of this Agreement:
(i) 8,333,333 shares of Series A Convertible Preferred Stock (the
"SERIES A SHARES"), par value $0.001 per share, which have a 10% cumulative
annual dividend, are convertible into shares of common stock of the Company
under certain specified conditions, and have the voting powers, designations,
preferences and relative, participating, optional and/or other special rights,
and the qualifications, limitation and/or restrictions set forth in that certain
Certificate of Designation of the Series A Convertible Preferred Stock of IVP
Technology Corporation D.B.A. ActiveCore Technologies, Inc. (the "SERIES A
CERTIFICATE OF DESIGNATION"), which is available at the Company for inspection
by Subscriber; and/or
(ii) 4,167,667 shares of Series B Convertible Preferred Stock (the
"SERIES B SHARES"), par value $0.001 per share, which have a 10% cumulative
annual dividend, are convertible into shares of common stock of the Company
under certain specified conditions, and have the voting powers, designations,
preferences and relative, participating, optional and/or other special rights,
and the qualifications, limitation and/or restrictions set forth in that certain
Certificate of Designation of the Series A Convertible Preferred Stock of IVP
Technology Corporation D.B.A. ActiveCore Technologies, Inc. (the "SERIES B
CERTIFICATE OF DESIGNATION"), which is available at the Company for inspection
by Subscriber.
The Series A Shares and Series B Shares are hereinafter collectively
referred to as the "OFFERED SECURITIES".
2. ACCEPTANCE. Subscriber hereby confirms his/her/its understanding
that the Company has full right to accept or reject this subscription, provided
that the Company must accept or reject Subscriber's subscription no later than
forty-five (45) days following the Company's receipt of this completed, signed
Subscription Agreement (the "EFFECTIVE DATE"), and that if Subscriber's
application is not accepted on or prior to such date, it will be deemed to have
been rejected by the Company and Subscriber will not be admitted to the Company
as a common shareholder. Upon acceptance of this application by the Company,
Subscriber will receive a confirmation of such acceptance executed by a duly
authorized officer of the Company. Subscriber understands and agrees that if
this application is accepted by the Company, Subscriber will be admitted to the
Company as a preferred shareholder because of his/her/its ownership of the
Offered Securities and will therefore be bound by the terms of this Agreement.
If this subscription is not accepted by such date, then Subscriber shall be
released from its obligations hereunder and the Company shall refund any amounts
paid by Subscriber hereunder, without any interest or deduction.
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3. PAYMENT; FORM OF PAYMENT. Subscriber agrees to tender payment of the
purchase price for the Offered Securities to be purchased by Subscriber under
this Agreement by no later than three (3) business days after the Effective
Date. As consideration for the Offered Securities purchased hereby, Subscriber
shall pay to the Company cash, in the form of a wire transfer or certified
check, in the amount set forth on the signature page of this Agreement.
4. SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES. Subscriber hereby
represents and warrants to the Company, its officers and directors as follows:
(a) Subscriber has been furnished, at least forty-eight (48) hours
prior to signing this Agreement, and has carefully read and completely
understands, this Agreement.
(b) Neither the Company nor any person acting on behalf of the
Company has offered or sold the Offered Securities to Subscriber by means of any
form of general solicitation or general advertising.
(c) Subscriber has not received, paid or given, directly or
indirectly, any commission or remuneration for or on account of any sale, or the
solicitation of any sale, of the Offered Securities to Subscriber.
(d) Subscriber has reviewed his/her/its financial condition and
commitments and is satisfied that he/she/it has the financial ability to bear
the economic risk of his/her/its entire investment through a purchase of the
Offered Securities; has adequate net worth and means of providing for
his/her/its current needs and contingencies; has the ability to sustain a
complete loss of his/her/its investment in the Company; and has no need for
liquidity in his/her/its investment in the Company.
(e) The Offered Securities to be acquired hereunder are being
acquired for Subscriber's own account for investment and not as a nominee or
agent for the benefit of any other person, and Subscriber has no present
intention of distributing or reselling the Offered Securities.
(f) Subscriber understands that the Offered Securities have not
been registered under the Securities Act of 1933, as amended (the "ACT"), or
under the laws of any other jurisdiction, and that, except as otherwise
expressly noted in this Agreement, the Company is under no obligation to so
register the Offered Securities. Subscriber understands and agrees that the
Offered Securities must be held indefinitely unless they are subsequently
registered under the Act or an exemption from registration is available.
(g) Subscriber understands that all documents evidencing the
Offered Securities which Subscriber has actually purchased pursuant to this
Subscription Agreement (the "SUBSCRIBED SHARES") will bear legends indicated
that the Subscribed Shares have not been registered under the Act or any state
securities laws and neither such securities nor any interest therein may be
offered, sold, transferred, pledged or otherwise disposed of except pursuant to
an effective registration statement under the Act or such laws or an exemption
from registration under the Act and such laws, which if available, in the
opinion of counsel for the holder, which counsel and opinion are reasonably
satisfactory to counsel for the Company, and Subscriber understands and agrees
that stop-order instructions prohibiting transfer of the Subscribed Shares may
be issued and filed by the Company on the Company's records as a means of
preventing the sale or disposition of the Subscribed Shares otherwise than in
accordance with this Agreement and applicable law.
(h) Subscriber has been supplied sufficient information reasonably
necessary to enable such Subscriber to make an informed investment decision
regarding the Offered Securities.
(i) Subscriber is aware that an investment in the Company involves
a high degree of risk, lack of liquidity, and substantial restrictions on
transferability of the Offered Securities, as well as other risks.
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(j) Subscriber is aware that investment returns set forth in any
documentation provided in connection with the offering of the Offered Securities
are not necessarily comparable to the returns, if any, which may be achieved by
the Company.
(k) Subscriber is aware that no federal or state agency has passed
upon the Offered Securities or made any finding or determination as to the
fairness of this investment.
(l) Subscriber has such knowledge and experience in business
matters that Subscriber is capable of evaluating the merits and risks of the
proposed investment.
(m) Subscriber is aware that he/she/it is not entitled to cancel,
terminate or revoke this subscription.
(n) Subscriber has carefully reviewed and understands the risks
of, and other considerations relating to, a purchase of the Offered Securities.
(o) In connection with Subscriber's investment, he/she/it has
obtained the advice of his/her/its own investment advisers, counsel and
accountants (collectively "INVESTMENT ADVISERS"), or has sufficient experience
in investing in similar, non-public companies to satisfactorily represent
his/her/its own interests in this investment.
(p) Subscriber and his/her/its Investment Advisers have been
furnished any materials relating to the Company, the offering of the Offered
Securities, and anything else Subscriber and/or his/her/its Investment Advisers
have requested and have been afforded the opportunity to ask questions of the
Company's officers concerning the terms and conditions of the offering and to
obtain any additional information necessary to verify the accuracy of any
representations or information set forth in the foregoing materials.
(q) In the opinion of Subscriber and/or his/her/its Investment
Advisors, the Company's officers have satisfactorily responded to all inquiries
that Subscriber and his/her/its Investment Advisers have put to them concerning
the Company, the Company's officers and directors, or any other matters relating
to the creation, operations, business, and prospects of the Company and the
terms and conditions of the offering and sale of the Offered Securities.
(r) Neither Subscriber nor his/her/its Investment Advisers have
been furnished any offering literature on which they have relied other than this
Agreement and any documents referenced in this document, including any
amendments or supplements hereto (if any), and Subscriber and his/her/its
Investment Advisers have relied only on such information and the information
furnished or made available to them by the Company or its officers, as described
in Section 4(p) hereof.
(s) Subscriber is an "ACCREDITED INVESTOR" as such term is defined
in Rule 501 of Regulation D promulgated under the Act.
(t) If Subscriber is a natural person, he/she (1) has reached the
age of majority in the state indicted beneath Subscriber's name on the signature
page of this Agreement, which is the state in which Subscriber is domiciled; (2)
Subscriber has all requisite legal capacity for the purchase of Offered
Securities; (3) Subscriber has all requisite legal capacity for the execution
and delivery of this Agreement and each other document required to be executed
and delivered by Subscriber in connection with this subscription for Offered
Securities and as such this Agreement, and each such other document will
constitute valid and legally binding obligations of Subscriber in accordance
with their terms.
(u) If Subscriber is a partnership, corporation, limited liability
company, trust, estate or other entity, such entity has the full legal right and
power and all authority and approval required (1) to execute and deliver, or
authorize execution and delivery of, this Agreement and all other instruments
executed and delivered by or on behalf of such entity in connection with the
purchase of the Offered Securities; (2) to purchase and hold such Offered
Securities; and (3) the signature of the party signing on behalf of such entity
is binding upon such entity.
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(v) If subscriber is a retirement plan or is investing on behalf
of a retirement plan, Subscriber acknowledges that investment in the Offered
Securities poses additional risks, including the inability to use losses
generated by an investment in the Offered Securities to offset taxable income.
(w) Neither the execution, delivery or performance of this
Agreement or any other document required to be executed and delivered by
Subscriber in connection with this subscription for Offered Securities, nor the
consummation of any of the transactions contemplated hereby or thereby by
Subscriber, (1) will violate or conflict with any law, rule, regulation,
judgment, order or decree of any court or other governmental body (and if
Subscriber is an entity, will also not violate its Certificate of Incorporation
or By-laws or other constituent or organizational documents), (2) will conflict
with or result in any breach or default under, permit any party to accelerate
any rights under or terminate, (3) will result in the imposition of any
Encumbrance (hereinafter defined) on any asset of Subscriber, or (4) will
require any consent or approval of, notice to, or filing with any entity or
person, except for any notice or filing which will be made on a timely basis.
For purposes of this Agreement, the term "ENCUMBRANCE" shall mean any security
interest, mortgage, lien, pledge or charge or encumbrance pursuant to the
provision of any material contract, indenture, mortgage, lease, franchise,
license, permit authorization, instrument or agreement of any kind to which
Subscriber is a party or by which Subscriber is bound or to which the properties
or assets of Subscriber are subject.
(x) This Agreement constitutes a valid and binding obligation of
Subscriber, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, and similar laws affecting
creditors rights generally and to general principles of equity.
(y) The address listed beneath the signature of Subscriber is
Subscriber's domicile or principal place of business and the only jurisdiction
in which an offer to sell the Offered Securities was made to Subscriber.
(z) All information which Subscriber has provided to the Company
concerning his/her/its financial position and his/her/its knowledge of financial
and business matters, including all information contained in this Agreement, is
correct and complete as of the Effective Date.
(aa) It is understood that in order not to jeopardize the exempt
status under Section 4(2) or 3(b) of the Securities Act of the purchase and sale
of the Offered Securities and, if applicable, in the sole judgment of the
Company, Regulation D thereunder, any transferee of the Offered Securities (if
such transfer is otherwise permitted hereunder) may be required to fulfill the
investor suitability requirements thereunder.
(bb) Subscriber understands and acknowledges that this offering has
no minimum subscription requirement, that all funds paid to the Company by
investors in connection with their subscription for the Offered Securities will
be deposited into a non-interest bearing escrow account at the Company's legal
counsel, Xxxxxxxxxxx & Xxxxxxxx, LLP, and that the Company will be entitled to
receive all escrowed funds immediately upon its request, which may occur prior
to the completion of the offering.
5. REPRESENTATION AS TO INVESTOR STATUS. In order for the Company to
offer and sell the Offered Securities in conformance with state and federal
securities laws, the following information must be obtained regarding
Subscriber's investor status.
(a) Please initial each item below if applicable to Subscriber as
an investor in the Company.
______(1) Subscriber is a bank as defined in Section 3(a)(2) of the
Act or any savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Act, whether acting in its individual or fiduciary
capacity.
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______ (2) Subscriber is a broker dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
______ (3) Subscriber is an insurance company as defined in Section
2(13) of the Act.
______ (4) Subscriber is an investment company registered under the
Investment Company Act of 1940, as amended, or a business development company as
defined in Section 2(a)(48) of that Act.
______ (5) Subscriber is a Small Business Investment Company
licensed by the United States Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958, as amended.
______ (6) Subscriber is a plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if such plan
has total assets in excess of five million dollars ($5,000,000)
______ (7) Subscriber is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974, as amended,
if the investment decision is made by a plan fiduciary, as defined in Section
3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the employee benefit
plan has total assets in excess of five million dollars ($5,000,000), or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors.
______ (8) Subscriber is a private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as
amended.
______ (9) Subscriber is an organization described in Section
501(c)(3) of the Internal Revenue Code, as amended, corporation, Massachusetts
or similar business trust, or partnership, not formed for the specific purpose
of acquiring the Offered Securities, with total assets in excess of five million
dollars ($5,000,000).
______ (10) Subscriber is a director, executive officer, or general
partner of the Company, or a director, executive officer or general partner of a
general partner of the Company.1
______ (11) Subscriber is a natural person whose individual net
worth, or joint net worth with that person's spouse, at the time of his purchase
of the Offered Securities exceeds one million dollars ($1,000,000).2
______ (12) Subscriber is a natural person who had an individual
income in excess of two hundred thousand dollars ($200,000) in each of the two
(2) most recent years or joint income with that person's spouse in excess of
three hundred thousand dollars ($300,000) in each of those years and has a
reasonable expectation of reaching the same income level in the current year. 3
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1 For purposes of this Agreement, "EXECUTIVE OFFICER" means the president,
any vice president in charge of a principal business unit, division or function
(e.g., sales, administration or finance) of the Company, or any other person who
performs similar policy-making functions for the Company.
2 For purposes of this Agreement, "INDIVIDUAL NET WORTH" means the excess of
total assets at fair market value, including home and personal property (and
including property owned by a spouse), over total liabilities.
3 For purposes of this Agreement, "INDIVIDUAL INCOME" means individual
annual adjusted gross income, as reported for federal income tax purposes, plus
(i) the amount of any tax-exempt interest income received; (ii) the amount of
losses claimed as a limited partner in a limited partnership; (iii) any
deduction claimed for depletion; (iv) amounts contributed to an XXX or Xxxxx
retirement plan; (v) alimony paid; and (vi) any amount by which income from
long-term capital gains has been reduced in arriving at adjusted gross income
pursuant to the provisions of Section 1202 of the Code.
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______ (13) Subscriber is a trust with total assets in excess of
five million dollars ($5,000,000), not formed for the specific purpose of
acquiring the Offered Securities, whose purchase is directed by a sophisticated
person as described in SEC Rule 506(b)(2)(ii).
______ (14) Subscriber is an entity in which all of the equity
owners qualify under any of the above subparagraphs (1) through (13). If
Subscriber belongs to this investor category only, a list of the equity owners
of Subscriber, and the investor category which each such equity owner satisfies,
should be attached as Attachment A hereto. 4
______ (15) Subscriber does not qualify under any of the investor
categories defined in any of the above subparagraphs (1) through (14). IF THIS
CATEGORY (15) IS CHECKED, PLEASE NOTIFY THE COMPANY AS SOON AS POSSIBLE.
(b) If Subscriber is not a natural person, please indicate the
form of entity of Subscriber:
____ Limited Partnership
____ General Partnership
____ Corporation
____ Limited Liability Company
____ Trust (indicate type of Trust (e.g., revocable or not,
business, etc. and, for trusts other than pension trusts, name
the grantor and beneficiaries in Attachment B hereto).
____ Other form of organization (indicate form of organization):
__________________________________________________________
(c) Initial the appropriate box below which correctly describes
the application of the following statement to your situation: Subscriber (i) was
not organized or reorganized for the specific purpose of acquiring the Offered
Securities, and (ii) has made investments prior to the date hereof, and each
beneficial owner thereof has and will share in the same proportion in each
investment:
____ True
____ False
If the "False" box is checked, name in Attachment C hereto the
partners, shareholders or other persons participating in the entity, and the
percentage interest which each such person has in such entity. Each
participating person will be required to fill out a Agreement and to make the
representation as to investor status set forth in this Section 5.
(d) Initial the box below which correctly describes the
application of the following statement to your situation: Subscriber would not,
upon acquiring the Offered Securities, have more than ten percent (10%) of
his/her/its assets invested in one or more investment companies that rely solely
on the exclusion from the definition of "investment company" provided in Section
3(c)(1)(A) of the Investment Company Act of 19405:
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4 If the investor is a trust, only a trust which is revocable and which may
be amended at the sole discretion of its grantor is eligible to qualify as an
Accredited Investor under this item. The grantors of the trust are deemed to be
the equity owners of the trust and therefore each grantor must be listed on
Attachment A.
5 Section 3(c)(1)(A) provides, in pertinent part, as follows:
"[N]one of the following persons is an investment company...
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____ True
____ False
If the "False" box is checked, the undersigned will, as of the
closing, have shareholders or partners, all of whose names and addresses are set
forth on the list provided in Attachment D hereto.
6. FURTHER ASSURANCES. All information that Subscriber has provided to
the Company hereunder is true, correct and complete in all respects as of the
date hereof, and the same will be true, correct and complete as of the date on
which this subscription is accepted by the Company, as if made on such date. The
undersigned hereby covenants to notify the Company in writing immediately if any
representation or warranty, or any other information provided by Subscriber
hereunder, becomes untrue or changes in any way. To induce the Company to accept
this subscription, Subscriber agrees to provide such information and to execute
and deliver such documents as the Company may request to verify the accuracy of
Subscriber's representations or to comply with any and all laws and regulations
to which the Company may be subject within ten (10) days after receipt of a
request from the Company.
7. THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
The Company is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Nevada, has all requisite
corporate power and authority to own and operate its properties and assets and
to carry on its business as now conducted and as presently proposed to be
conducted, to execute and deliver this Agreement to issue and sell the Offered
Securities, and to carry out the provisions of this Agreement. The Company is
duly qualified and is authorized to transact business and is in good standing as
a foreign corporation in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business, properties, prospects, or
financial condition.
All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the Company
hereunder and the authorization, issuance (or reservation for issuance), sale,
and delivery of the Offered Securities being sold hereunder has been taken and
this Agreement, when executed and delivered, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies. The sale of the Offered Securities is not subject to any
preemptive rights or rights of first refusal that have not been properly waived
or complied with.
The Subscribed Shares that are being purchased by Subscriber
hereunder, when issued, sold, and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid, and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
The execution and delivery by the Company of this Agreement, its
consummation of the transaction contemplated hereby, and its compliance with the
provisions hereof, will not, (1) violate or conflict with its Certificate of
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"(1) Any issuer whose outstanding securities (other than short-term paper)
are beneficially owned by not more than one hundred persons and which is not
making and does not presently propose to make a public offering of its
securities. For purposes of this paragraph:...(A) Beneficial ownership by a
company shall be deemed to be beneficial ownership by one person, except that,
it such company owns 10 per centum or more of the outstanding voting securities
of the issuer, the beneficial ownership shall be deemed to be that of the
holders of such company's outstanding securities (other than short-term paper)
unless, as of the date of the most recent acquisition by such company of
securities of that issuer, the value of all securities owned by such company of
all issuers which are or would, but for the exception set forth in this
subparagraph, be excluded from the definition of investment company solely by
this paragraph, does not exceed 10 per centum of the value of the company's
total assets."
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Incorporation or bylaws, (2) violate, conflict with, or give rise to any right
of termination, cancellation, or acceleration under any agreement or instrument
to which the Company is a party, (3) result in the imposition of any Encumbrance
on any asset of the Company, (4) violate or conflict with any laws or
regulations applicable to the Company, or (5) require any consent or approval
of, notice to, or filing with any entity or person, except for any notice or
filing which will be made on a timely basis.
Any funds paid to the Company by investors in connection with their
subscription for the Offered Securities will be deposited in a non-interest
bearing escrow account at the Company's legal counsel, Xxxxxxxxxxx & Xxxxxxxx,
LLP. In the event that the Company does not accept Subscriber's subscription for
whatever reason, it will refund all of Subscriber's escrowed funds, without
interest.
8. THE OFFERED SECURITIES. The Offered Securities subscribed for herein
shall be deemed issued to or owned by Subscriber only to the extent that the
purchase price is paid by Subscriber.
9. REGISTRATION RIGHTS.
(a) Registration of Securities. If the Company proposes to
register any of its securities under the Act after the Effective Date, then the
Company shall promptly give Subscriber written notice of such registration (the
"COMPANY NOTICE"). If Subscriber wishes to have the Company include some or all
of his/her/its Registerable Securities in the registration statement, Subscriber
must send a notice to Company no later than twenty (20) days after the Company
has delivered the Company Notice to Subscriber setting forth the number of the
Registerable Securities Subscriber wishes the Company to register (the
"REGISTRATION NOTICE"). The number of Registerable Securities that the Company
will be obligated to register will be the number of Registerable Securities
Subscriber specifies in his/her/its Registration Notice, except as such number
may be reduced, eliminated or conditioned as permitted under this Section 9 (the
"REGISTRATION RIGHTS"). For purposes of this Section 9, the term "REGISTERABLE
SECURITIES" shall mean the Subscribed Shares, plus any shares of common stock or
other securities issued as a dividend or as a stock split with respect to such
Subscribed Shares.
(b) Right to Terminate Registration. The Company may withdraw its
registration statement at any time in its sole discretion and terminate the
registration at any time before the registration statement is declared effective
by the SEC.
(c) Expenses. Except as specifically provided herein, the Company
shall bear all of the expenses it incurs in connection with the preparation of a
registration statement and all other expenses of any registration under this
Section 9. Subscriber shall pay the fees of any attorney, accountant or other
expert Subscriber may retain to represent his/her/its own interests in
connection with the registration of his/her/its Registerable Securities, and
shall also pay any underwriter(s) discounts.
(d) Underwriting Requirements. The Company shall not be required
under this section to include any of Subscriber's Registerable Securities in
such underwriting unless Subscriber accepts the terms of the underwriting as
agreed upon between the Company and the underwriter(s) selected by the Company
(or by other persons entitled to select the underwriter(s)) and enter into an
underwriting agreement in customary form with an underwriter(s) selected by the
Company.
(e) Information. Subscriber agrees to provide the Company with
such information pertaining to Subscriber and his/her/its Registerable
Securities as the Company requests for inclusion in the registration statement
the Company will be filing to register Subscriber's Registerable Securities.
Subscriber agrees that the information he/she/it will provide to the Company
will be true and correct in all respects, and agree to indemnify and hold the
Company harmless for all claims, costs, liabilities and damages the Company
incurs as a result of any false or misleading information Subscriber provides to
the Company that is included in the registration statement.
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(f) Reduction in Registerable Securities. If the underwriter(s)
determine(s) in its/their discretion that the number of shares being registered
should be reduced for any reason, the number of Subscriber's Registerable
Securities to be registered may be reduced at the discretion of the
underwriter(s) in such amount or to zero (0). The underwriter(s) shall not be
obligated to reduce or eliminate the number of shares of the Company's stock or
shares of any other selling shareholder in the event it determines to reduce or
eliminate the number of Subscriber's Registerable Securities to be registered.
(g) Termination of Registration Rights. The Company's obligations
to register Subscriber's Registerable Securities pursuant to this Section 9
shall terminate two (2) years from the Effective Date, provided that the
Company's obligations under this Section 9 shall sooner terminate: (i) at such
time as Subscriber sells all of his/her/its Registerable Securities without
registration under the Act pursuant to Rule 144(k) of the SEC or any successor
rule; or (ii) at such time as Subscriber sells all of his/her/its Registerable
Securities without registration under the Act in any ninety (90) day period
pursuant to Rule 144 of the SEC.
10. INDEMNIFICATION. Subscriber understands that the information
provided herein will be relied upon by the Company for the purpose of
determining the eligibility of Subscriber to purchase Offered Securities.
Subscriber shall indemnify and hold harmless the Company, its affiliates,
subsidiaries, officers, directors, employees and agents, and each other person,
if any, who controls or is controlled by any of them, to the extent permitted by
law, for any and all costs, expenses, liabilities or losses (including legal
expenses) that the indemnified party may incur if and to the extent such costs,
expenses, liabilities or losses are caused by or arising out of the inaccuracy
or breach by Subscriber of any of the representations, warranties or agreements
set forth herein or in any other document provided by Subscriber. The Company
shall also be held harmless and indemnified by Subscriber against any loss
arising from the failure to process this Agreement if such information as has
been required from Subscriber has not been provided by Subscriber. The foregoing
indemnification obligations shall survive the closing relating to the purchase
of the Offered Securities by Subscriber.
11. WAIVER. This Agreement may be amended only by an instrument signed
by Subscriber and the Company. A waiver of any provision of this Agreement must
be in writing, designated as such, and signed by the party against whom
enforcement of such waiver is sought. The waiver by a party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent or other breach hereof.
12. BINDING EFFECT; JOINT AND SEVERAL UNDERTAKING. Except as otherwise
provided herein, this Agreement shall be binding upon and inure to the benefit
of Subscriber and the Company and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns. If
Subscriber is more than one person, the obligations hereunder of Subscriber
shall be joint and several and the representations, warranties and covenants
herein contained shall be deemed to be made by and be binding upon each such
person and such person's heirs, executors, administrators, legatees, devisees,
assigns, legal representatives and successors.
13. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including all
attachments hereto, contains the entire agreement and understanding of the
parties with respect to the subject matter herein, and supersedes all prior or
contemporaneous agreements and understandings of the parties, whether oral or
written. This Agreement cannot be amended unless that amendment is in writing
and is signed by both parties.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, excluding any conflicts of law
provisions that might otherwise apply.
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15. NONASSIGNMENT. This Agreement shall not be assignable by the
undersigned without the prior written consent of the Company.
16. NOTICES. All notices to be given under this Agreement shall be in
writing and delivered either personally, by recognized express courier service
(e.g., Fed Ex, UPS, or Airborne Express), or by first class domestic United
States mail, postage or delivery prepaid. All notices shall be deemed received:
(i) upon actual receipt of the designated recipient if delivered personally;
(ii) one (1) business day after deposit with the overnight courier service; and
(iii) three (3) business days after deposit of the notice with the United States
Postal Service. All notices shall be sent to the following addresses, as
applicable:
If to Subscriber: D & M Investments
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
If to Company: ActiveCore Technologies, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Chairman
With a copy to:
(which shall not
constitute notice): Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Each party shall provide written notice to the other party of any change
to the address(es) to which notice to such party shall be sent.
17. CONFIDENTIALITY. Subscriber acknowledges and agrees that all
information disclosed and materials distributed in connection with the
transactions contemplated by this Agreement is confidential information and that
it will not disclose or distribute to any person or use for its own account any
such confidential information. Subscriber agrees further with respect to all
such confidential information, that (a) such confidential information shall
remain the property of the Company; (b) unless otherwise authorized by the
Company or required by law, Subscriber shall use the confidential information
solely in connection with the transactions contemplated hereby (a "DESIGNATED
PURPOSE"); (c) Subscriber shall not disclose such confidential information to
anyone except (i) those of its officers, directors, agents, employees and
advisors with a need to know in connection with the Designated Purpose, and
shall notify each individual who is permitted access to the confidential
information that such disclosure has been made in confidence, or (ii) as may be
required by law or any legal process, and (d) Subscriber shall not copy or
reproduce any confidential information except to the extent necessary for its
permitted use.
18. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in two or more counterparts which together shall constitute one in the same
instrument. This Agreement may be executed by the parties' authorized
representatives using such persons' signatures transmitted via facsimile
machine.
[SIGNATURE PAGE FOLLOWS; BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Subscription Agreement
to be effective as of the Effective Date.
SUBSCRIBED TO BY THE UNDERSIGNED:
Signature: ___________________________________
Print Name: ___________________________________
Title (if applicable): ___________________________________
Name of Entity On
Whose Behalf
This Agreement
Is Being Executed
(if applicable): ___________________________________
Address: ___________________________________
Telephone: ___________________________________
Facsimile: ___________________________________
Email: ___________________________________
SSN or Taxpayer
Identification Number
(if Subscriber is
an entity): ___________________________________
State of
Residence/Domicile: ___________________________________
ACCEPTED BY IVP TECHNOLOGY CORPORATION D.B.A. ACTIVECORE TECHNOLOGIES, INC.:
Signature: ___________________________________
Print Name and Title: ___________________________________
Effective Date Of This
Subscription Agreement: ___________________________________
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IMPORTANT REMINDERS TO SUBSCRIBERS:
o Please complete and execute two (2) originals of this Agreement and
forward both documents to the Company's legal counsel, Xxxxxxxxxxx &
Xxxxxxxx LLP, at the following address (one fully executed original of
this Agreement will be returned to Subscriber after acceptance and
countersignature by the Company):
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Please be certain to complete and attach to this Agreement, as applicable,
Attachments A through D.
o If Subscriber is an entity, please complete, execute, and return to the
Company (along with two (2) originals of your completed, executed
Agreement) the attached "Certificate for Entity Subscriber".
o If there is to be more than one owner of Offered Securities, each owner
shall sign and indicate the manner in which the Offered Securities are to
be held (i.e., as joint tenants, tenants-in-common, etc.). Please send
payments separately.
o Please be certain to follow the "Payment Instructions" below as Subscriber
should send the signed Agreements to the Company and the funds to the
escrow agent.
PAYMENT INSTRUCTIONS:
Please make your check or wire transfer payable to "ActiveCore Technologies,
Inc." and send to the Company's legal counsel, Xxxxxxxxxxx & Xxxxxxxx LLP, which
is serving as the escrow agent in connection with the offering. The address and
wire transfer instructions for Xxxxxxxxxxx & Xxxxxxxx is as follows:
If payment is by check: Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If payment is by
wire transfer: Citibank, F.S.B.
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
ABA Number: 000000000
Account Name: Xxxxxxxxxxx & Xxxxxxxx LLP
Trust Account (IOTA)
Account Number: 2102516505
Attention: Xxx Xxxxxxxxx / Private Banking
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CERTIFICATE FOR ENTITY SUBSCRIBER
---------------------------------
(to be completed and returned to IVP Technology Corporation
d.b.a. ActiveCore Technologies, Inc. if Subscriber is an entity)
Subscriber, an authorized officer, trustee, manager, member or general
partner of ______________________________, hereby certifies that:
(a) Subscriber has been duly formed and is validly existing under the
laws of the State of ______________________, with full power and authority to
invest in IVP Technology Corporation d.b.a. ActiveCore Technologies, Inc., a
Nevada corporation; and
(b) Subscriber's Subscription Agreement has been duly and validly
authorized, executed and delivered on behalf of Subscriber and, upon acceptance
by IVP Technology Corporation d.b.a. ActiveCore Technologies, Inc., Subscriber's
Subscription Agreement will constitute the valid, binding and enforceable
agreement of Subscriber.
_____________________________
Name Of Subscriber
_____________________________
Signature Of An Authorized
Corporate Officer, Member,
Manager, General Partner or
Trustee of Subscriber
_____________________________
Title
_____________________________
Date
14
ATTACH
ATTACHMENTS A THROUGH D
(AS APPLICABLE)
15
