Subscription Agreement METASwarm Holdings, Inc.
METASwarm
Holdings, Inc.
000
X.
Xxxx Xxx., #000, Xxxxxxxx XX 00000
THIS
SUBSCRIPTION AGREEMENT made this xxx day of (month), (year) by and
between MetaSwarm Holdings, Inc., a Nevada corporation (hereinafter “Issuer” or
“Company”),
and the undersigned Subscriber (hereinafter “Subscriber”), who, for and in
consideration of the mutual promises and covenants set forth herein, do hereto
agree as follows:
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1.
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Subscription. The
Subscriber hereby subscribes for 1,000 Shares (hereinafter “Shares” or
“securities”) of the COMPANY, at a price of $0.10 per Share, and herewith
tenders to the Issuer a promissory note for the subscription in the
amount
of $100.00 which the Subscriber tenders herewith as payment for the
Shares. Each Share consists of one share of $.001 par value
common stock of the Company. This Subscription Agreement
(hereinafter “Subscription”) is an irrevocable offer by the Subscriber to
subscribe for the securities offered by the Issuer, and, subject
to the
terms hereof, shall become a contract for the sale of said securities
upon
acceptance thereof by the Issuer.
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2.
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Acceptance. This
Subscription Agreement is made subject to the Issuer’s discretionary right
to accept or reject the Subscription herein. The Subscriber
will be notified upon closing of the offering whether the Subscription
has
been accepted. If the Issuer for any reason rejects this
Subscription, the Subscription will be refunded in full, without
interest,
and this Subscription Agreement shall be null, void and of no
effect. Acceptance of this Subscription by the Issuer will be
evidenced by the execution hereof by an officer of the
Issuer.
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3.
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Subscriber
Representations. The Subscriber hereby represents,
warrants and agrees that:
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(a)
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The
Subscriber has had an opportunity to ask questions and receive information
from the Company.
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(b)
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The
Subscriber’s
representations in this Agreement are complete and accurate to the
best of
the Subscriber’s
knowledge, and the Company and any sales agent may rely upon
them. The Subscriber will notify the Company and any such agent
immediately if any material change occurs in any of this information
before the sale of the Shares.
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(c)
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The
Subscriber is an "accredited investor" as defined by Regulation D
as set
forth below;
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According
to Rule 501(a) of Regulation D, "accredited investor" means any person who
comes
within any of the following categories, or who the Issuer reasonably believes
comes within any of the following categories, at the time of the sale of the
Shares to that person:
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(i)
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Any
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; any broker
or
dealer registered pursuant to section 15 of the Securities Exchange
Act of
1934; an insurance company as defined in section 2(13) of the Act;
an
investment company registered under the Investment Company Act of
1940 or
a business development company as defined in section 2(a)(48) of
that Act;
a Small business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958; any 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 $5,000,000; any employee benefit plan
within
the meaning of the Employee Retirement Income Security Act of 1974,
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 adviser, or if the employee
benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons
that
are accredited investors;
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(ii)
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Any
private business development company as defined in section 202(a)(22)
of
the Investment Advisers Act of
1940;
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(iii)
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Any
organization described in section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
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(iv)
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Any
director, executive officer, or general partner of the issuer of
the
securities being offered or sold, or any director, executive officer,
or
general partner of that issuer;
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(v)
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Any
natural person whose individual net worth, or joint net worth with
that
person's spouse, at the time of his purchase exceeds
$1,000,000;
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(vi)
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Any
natural person who had individual income in excess of $200,000 in
each of
the two most recent years or joint income with that person's spouse
in
excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current
year;
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(vii)
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Any
trust, with total assets in excess of $5,000,000, not formed for
the
specific purpose of acquiring the securities offered, whose purchase
is
directed by a sophisticated person as described in section
30.506(b)(2)(ii); and
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(viii)
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Any
entity in which all of the equity owners are accredited
investors.
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(d)
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The
Subscriber is able to bear the economic risk of an investment in
the
securities for an indefinite period of time, can afford to risk the
loss
of the entire investment in the securities, and will, after making
an
investment in the securities, have sufficient means of providing
for
current needs and possible future contingencies without reliance
upon this
investment. Additionally, the Subscriber’s overall commitment
to investments that are not readily marketable is not disproportionate
to
the Subscriber’s net worth and this Subscription will not cause such
overall commitment to become
excessive.
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(e)
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The
Subscriber understands and acknowledges that the securities are being
offered and sold in reliance upon an exemption from registration
under
Section 4(6) under the Securities Act of 1933 (hereinafter “Securities
Act”), and are therefore subject to the limitations on resale pursuant
to
Rule 144. Further the Subscriber understands the securities
subscribed for herein are being acquired for the Subscriber’s
own account and risk, and not on behalf of any other person and are
being
purchased by the Subscriber for investment and not with a view to
the
distribution of the securities. The Subscriber is aware that
although there are no legal restrictions on the transferability of
the
securities, the Subscriber must register the securities or have an
exemption from registration before the Subscriber may resell the
securities. Further the Subscriber understands, there is
presently a very limited public market for the securities and no
assurance
of a future public market for the securities, and, accordingly, it
is
unlikely that the Subscriber will be readily able to liquidate an
investment in the securities.
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The
undersigned understands that the securities have not been registered, but are
being acquired by reason of a specific exemption under the Securities Act as
well as under certain state statutes for transactions by an issuer not involving
any public offering and that any disposition of the subject securities may,
under certain circumstances, be inconsistent with this exemption and may make
the undersigned an "underwriter" within the meaning of the Securities
Act. It is understood that the definition of an "underwriter" focuses
on the concept of "distribution" and that any subsequent disposition of the
subject securities can only be effected in transactions that are not considered
distributions. Generally, the term "distribution" is considered
synonymous with "public offering" or any other offer or sale involving general
solicitation or general advertising. Under present law, in
determining whether a distribution occurs when securities are sold
into the public market, under certain circumstances one must consider the
availability of public information regarding the issuer, a holding period for
the securities sufficient to assure that the persons desiring to sell the
securities without registration first bear the economic risk of their
investment, an a limitation on the number of securities which the stockholder
is
permitted to sell and on the manner of sale, thereby reducing the potential
impact of the sale on the trading markets. These criteria are set
forth specifically in rule 144 promulgated under the Securities
Act. After one year from the later of the date the securities are
acquired from the Issuer or an affiliate of the Issuer and the full purchase
price or other consideration is paid, all as calculated in accordance with
rule
144(d), sales of the securities in reliance on rule 144 can only be made in
limited amounts in accordance with the terms and conditions of that
rule. After two years from the date the securities are fully paid
for, as calculated in accordance with rule 144(d), it can generally be sold
without meeting these conditions provided the holder is not (and has not been
for the preceding three months) an affiliate of the issuer.
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The
undersigned acknowledges that the securities must be held and may not be
sold,
transferred, or otherwise disposed of for value unless it is subsequently
registered under the Securities Act or an exemption from such registration
is
available; the Issuer is under no obligation to register the securities under
the Securities Act or under section 12 of the Securities Exchange Act of
1934,
as amended, except as may be expressly agreed to be it in writing; if rule
144
is available, and no assurance is given that it will be, initially only routine
sales of such securities in limited amounts can be made in reliance on rule
144
in accordance with the terms and conditions of that rule; the Issuer is under
no
obligation to the undersigned to make rule 144 available, compliance with
regulation A or some other exemption may be required before the undersigned
can
sell, transfer, or otherwise dispose of such securities without registration
under the Securities Act; the Issuer's registrar and transfer agent will
maintain a stop transfer order against the registration of transfer of the
securities; and the certificate representing the securities will bear a legend
in substantially the following form so restricting the sale of such
securities.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ARE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES
ACT.
The
Issuer may refuse to register transfer of the securities in the absence of
compliance with rule 144 unless the undersigned furnishes the Issuer with
a
"no-action" or interpretative letter from the Securities and Exchange Commission
or an opinion of counsel reasonably acceptable to the Issuer stating that
the
transfer is proper; further, unless such letter or opinion states that the
securities are free of any restrictions under the Securities Act, the Issuer
may
refuse to transfer the securities to any transferee who does not furnish
in
writing to the Issuer the same representations and agree to the same conditions
with respect to such securities as are set forth herein. The Issuer
may also refuse to transfer the securities if any circumstances are present
reasonably indicating that the transferee's representations are not
accurate.
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(f)
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The
Subscriber hereby agrees that he does not have the right to cancel
this
Subscription Agreement, which shall survive the death, disability,
or the
cessation of existence as a legal entity, of the
Subscriber. Further, the Subscriber agrees that he does not
have the right, and will not attempt, to transfer his interest
herein.
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(g)
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The
Subscriber has had access to any and all information concerning
the
Issuer whom the Subscriber and the Subscriber’s
financial, tax and legal advisors required or considered necessary
to make
a proper evaluation of this investment. In making the decision
solely upon their own independent investigations, and fully understand
that there are no guarantees, assurances or promises in connection
with
any investment hereunder and understand that the particular tax
consequences arising from this investment in the Issuer will depend
upon
the Subscriber’s
individual circumstances. The Subscriber further
understands that no opinion is being given as to any securities
matters
involving the offering.
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(h)
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The
Subscriber shall indemnify and hold the Issuer harmless from all
costs and
expenses, including reasonable attorney’s
fees, incurred by the Issuer as a result of a breach hereof by
the
Subscriber. Further, all of the representations and warranties
of the
Subscriber contained herein and all information furnished by the
Subscriber to the Issuer are true, correct and complete in all
respects,
and the Subscriber agrees to notify the Issuer immediately of any
change
in any representation, warranty or other information set forth
herein.
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(i)
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The
Subscriber has been given the unrestricted opportunity to ask questions
of, and receive answers from the Issuer, or persons acting on its
behalf,
concerning the terms and conditions of, and all other matters relating
to
the offering, and has been given the unrestricted opportunity to
obtain
such additional information with respect to the offering as he
has
desired, including, but not limited to, any additional information
necessary to verify the accuracy of the information set forth in
the
attached documentation. The undersigned has carefully read all
material identified as being attached hereto and has no further
questions
with respect thereto.
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(j)
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The
Subscriber knows that the securities subscribed for herein are
offered and
sold pursuant to exemptions from registration and the Securities
Act of
1933, and state securities law based, in part, on these warranties
and
representatives, which are the very essence of this Subscription
Agreement, and constitute a material part of the bargained-for
consideration without which this Agreement would not have been
executed.
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(k)
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By
reason of the Subscriber’s
business or financial experience, the Subscriber has the capacity
to
protect his own interest in connection with this transaction or
has a
pre-existing personal or business relationship with the company
or one or
more of its officers, directors or controlling persons consisting
of
personal or business contacts of a nature and duration such as
would
enable a reasonably prudent purchaser to be aware of the character,
business acumen and general business and financial circumstances
of such
person with whom such relationship
exists.
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(l)
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This
Agreement when fully executed and delivered to the Company will
constitute
a valid and legally binding obligation of the Subscriber, enforceable
in
accordance with its terms. The Subscriber, if it is a
partnership, joint venture, corporation, trust or other entity,
was not
formed or organized for the specific purpose of acquiring the
Shares. The purchase of the Shares by the Subscriber, if it is
an entity investor, is a permissible investment, declaration of
trust or
other similar charter document, and has been duly approved by all
requisite action by the entity’s
owners, directors, officers or other authorized managers. The
person signing this document and all documents necessary to consummate
the
purchase of the Shares has all requisite authority to sign such
document
on behalf of the Subscriber, if it is an entity
investor.
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(m)
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In
connection with this offering the Subscriber has received certain
information from the Company which the Subscriber has reviewed
and is
familiar with the contents. The Subscriber has not duplicated
or distributed this information to anyone other than his Purchaser
Representative or other personal advisors, and will not do so in
the
future.
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(n)
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The
Shares offered hereby were not offered to the Subscriber by way
of general
solicitation or general advertising and at no time was the Subscriber
presented with or solicited by means of any leaflet, public promotional
meeting, circular, newspaper or magazine article, radio or television
advertisement.
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4.
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Governing
Law. This Subscription shall be governed by the laws
of the state of Nevada.
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5.
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Entire
Agreement. This Subscription Agreement together with
the other documents executed contemporaneously herewith, constitute
the
entire agreement between the parties with respect to the matters
covered
thereby, and may only be amended by a writing executed by all parties
hereto.
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6.
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Survival
of Representations. The representations, warranties,
acknowledgments and agreements made by the Subscriber shall survive
the
acceptance of this Subscription and run in favor of, and for the
benefit
of, the Issuer.
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7.
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Waiver. No
waiver or modification of any of the terms of this Agreement shall
be
valid unless in writing. No waiver of a breach of, or default
under, any provision hereof shall be deemed a waiver of such provision
or
of any subsequent breach or default of the same or similar nature
or of
any other provision or condition of this
Agreement.
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8.
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Counterparts. This
Agreement may be executed in two or more counterparts, each of
which shall
be deemed an original, but all of which together shall constitute
one and
the same instrument.
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9.
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Notices. Except
as otherwise required in this Agreement, any notice required or
permitted
under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery or upon deposit with the
United
States Post Office, by registered or certified mail, postage prepaid,
addressed to the last known address of the
party.
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10.
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Non-Assign
Ability. The obligations of the Subscriber hereunder
shall not be delegated or assigned to any other party without the
prior
written consent of the Company.
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11.
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Expenses. Each
party shall pay all of its costs and expenses that it incurs with
respect
to the negotiation, execution and delivery of this
Agreement.
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12.
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Form
of Ownership. Please indicate the form of ownership
that the Subscriber desires for the
Shares:
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Individual
Joint
Tenants with Right of
Survivorship
Tenants
in Common
Community
Property
Trust
Corporation
Partnership
Other:
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Subscriber:
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(name)
SSN:
xxx
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Date
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Accepted:
Company
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Xxxxxx
Xxxxxxx
Chairman
and CEO
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Date
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Number
of
Shares Subscribed for Purchase: 1,000
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