MACROSOLVE, INC. SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
EXHIBIT 10.1
| Name of Subscriber: | |
| Number of Shares: | _______________________ |
| Total Investment: | $ |
MACROSOLVE,
INC.
SUBSCRIPTION
AND INVESTMENT
REPRESENTATION
AGREEMENT
MacroSolve,
Inc.
0000 Xxxx
Xxxxxx Xxxxx
Suite
300
Tulsa,
Oklahoma 74135
Attn:
Xxxxx X. XxXxxx
Gentlemen:
This
Subscription and Investment Representation Agreement (the “Agreement”) shall
serve as the agreement of the undersigned subscriber (the "Subscriber") to
purchase from MacroSolve, Inc., an Oklahoma corporation (the "Corporation"),
30,600 shares of common stock of the Corporation, $.01 par (“Common Stock”), as
further described in the Private Placement Memorandum previously delivered by
the Corporation to the Subscriber. The undersigned hereby subscribes
to purchase such Common Stock at a purchase price of $6.5359 per share, for a
total purchase price paid by Subscriber of $200,000 (the
“Subscription”). The undersigned Subscriber hereby tenders to the
Corporation a certified check in the amount of the Subscription.
The Subscription may be held in an
escrow account set up in the name of the Corporation until this Subscription is
accepted or rejected by the Corporation. It is understood that this
Subscription may be accepted or rejected by the Corporation for any reason in
the Corporation’s sole discretion. If this Subscription is rejected,
then this Agreement shall automatically terminate, the Subscriber shall be
released from all obligations hereunder, except from Subscriber’s
representations and warranties set forth herein, and any Subscription payment
shall be promptly refunded to the Subscriber without interest.
As
conditions precedent to the Subscriber’s potential purchase of the Common Stock,
the undersigned Subscriber hereby represents and warrants to the Corporation as
follows:
1. Authorization. Subscriber
has the full power and authority to enter into this Agreement. This
Agreement constitutes a valid and legally binding obligation of such
Subscriber. If the Subscriber is an individual, the Subscriber is
over twenty-one (21) years of age and is legally competent to execute this
Agreement.
2. Purchase Entirely for Own
Account. Subscriber is purchasing the Common Stock for
investment purposes only, solely for its own account, and not as a nominee or
agent, and not with a view to, in connection with, or with intent for, the
resale or distribution of all or any part of the Common Stock. Investor has no
present intention of selling, granting any participation in, or otherwise
distributing all or any part of the Common Stock. Subscriber has made
no agreement with any other person or entity concerning the offer or sale of all
or any part of the Common Stock.
3. Restricted
Stock. Subscriber understands and acknowledges that the Common
Stock is restricted stock and has not been registered under federal or state
law, and that the sale or resale of the securities will not be permitted under
federal or state law unless such securities are first registered, or the sale is
a transaction exempt from registration under both state and federal laws.
Subscriber shall not sell, transfer, assign, encumber or otherwise dispose of
the Common Stock in the absence of an effective registration statement covering
said Common Stock under the Securities Act of 1933, as amended, and applicable
state laws or an opinion of legal counsel, in such form and substance as may be
reasonably acceptable to legal counsel for the Corporation that the transaction
will not result in a violation of federal or state securities
laws. The Common Stock is not transferable except under extremely
limited conditions and Subscriber has no need for liquidity of this
investment. Subscriber consents to the placing of a stop transfer
notification on the securities records of the Corporation with respect to the
Common Stock. Subscriber agrees to indemnify and hold harmless the
Corporation from and against any claim, liability, cost or expense (including
without limitation attorneys fees) arising from any alleged unlawful sale or
offer or agreement to sell, assign, pledge or otherwise transfer all or any
portion of the Common Stock by Subscriber or its representatives or
agents.
4. Legends. Subscriber
consents to the placement of the following legend on the certificates for the
Common Stock:
THE
COMMON STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAW. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, OFFERED FOR SALE OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY IN
FORM AND SUBSTANCE TO COUNSEL FOR THE CORPORATION THAT THE TRANSACTION WILL NOT
RESULT IN A VIOLATION OF FEDERAL OR STATE SECURITIES LAWS.
5. No
Approval. Subscriber is aware that no federal or state agency
has approved or disapproved of the Common Stock or made any review of the
offering or sale of the Common Stock or any finding or determination as to the
fairness of the terms thereof as an investment, the adequacy of any disclosures
made by the Corporation, nor any recommendation or endorsement of the Common
Stock as an investment.
6. Accredited
Investor. Subscriber represents and warrants that it satisfies
one or more of the following:
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(a)
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Subscriber
is a natural person with individual net worth, or joint net worth with
his/her spouse, at the time of purchase exceeding
$1,000,000;
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(b)
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Subscriber
is a natural person who had individual income in excess of $200,000 in
each of the two most recent years or joint income with his/her 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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(c)
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Subscriber
is a trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring Common Stock of the Corporation, whose
purchase is directed by a person who is experienced in investment and
business matters and has such knowledge and experience in
financial and business matters to enable Subscriber to evaluate the merits
and risks of the proposed
investment;
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(d)
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Subscriber
is an 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 Common Stock
of the Corporation, with total assets in excess of
$5,000,000;
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(e)
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Subscriber
is a private business development company as defined in section 202(a)(22)
of the Investment Advisors Act of
1940;
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(f)
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Subscriber
is an entity in which all of the equity owners are “accredited investors”,
as such term is defined in Rule 501(a) of Regulation D, promulgated under
the Securities Act of 1933 (the “Act”);
and/or
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(g)
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Subscriber
otherwise qualifies as an “accredited investor” under Rule 501 of
Regulation D, promulgated under
Act.
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7. Receipt of
Information. Subscriber acknowledges that it has received,
read and understands the Private Placement Memorandum and understands the risks
associated with a purchase of the Common Stock of the Corporation, including the
potential loss of the entire amount of the investment. Subscriber
represents and warrants that in making the decision to purchase the Common
Stock, Subscriber has been advised to rely upon, and has relied upon,
independent investigations made by Subscriber or Subscriber's representatives,
including its own professional tax and business advisors, and that such
persons have been given full and complete access to all information of the
Corporation, including the opportunity to examine all relevant documents and to
ask questions of and to receive answers from the Corporation or persons acting
on its behalf concerning the terms and conditions of the offering and all other
matters relating to an investment in the Corporation, and to obtain any
additional information necessary to verify the accuracy of the information set
forth therein.
8. Investment
Experience. The Subscriber believes that, either alone or with
the assistance of the Subscriber’s own professional advisors, it can fend for
itself and that it has the knowledge and experience in business and financial
matters to make the Subscriber capable of reading, interpreting and
understanding the Private Placement Memorandum and the Corporation’s financial
statements and all other information of the Corporation, and of evaluating the
merits and risks of an investment in the Common Stock. Subscriber has
been fully informed of and is aware that an investment in the Common Stock of
the Corporation is highly speculative and involves a high degree of risk, which
risk includes the possible loss of the entire amount invested by
Subscriber.
9. No Public
Market. Subscriber acknowledges that there presently is no
public market for the Common Stock and there may never be a public market for
the Common Stock. The Subscriber may not be able to liquidate its
investment in the Common Stock in the event of an emergency or to pledge its
Common Stock as collateral for loans. Subscriber represents and
warrants that the Common Stock constitutes an investment which is suitable and
consistent with Subscriber's overall investment program and that its financial
situation enables Subscriber to bear the risks of this investment for an
indefinite period of time.
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10. Address. If
the Subscriber is an individual, the address set forth below is its true and
correct residence, and Subscriber has no present intention of becoming a
resident or state of any other state or jurisdiction. If the
Subscriber is a corporation, limited liability company, partnership, trust or
other entity, its principal place of business is at the address set forth below,
and such entity was not formed specifically to acquire the Common
Stock.
11. Complete and Correct
Information. All of the information furnished to the
Corporation by Subscriber, including all information set forth herein is correct
and complete as of the date hereof. If there should be any material
change in any of such information prior to the admission of Subscriber as a
stockholder of the Corporation, the Subscriber will immediately furnish the
revised or corrected information to the Corporation.
12. Reliance by the
Corporation. Subscriber acknowledges that the Corporation will
rely upon the representations, warranties, agreements and understandings
made herein in its decision whether to accept the Subscription of Subscriber,
and that the foregoing representations, warranties, agreements and
understandings shall survive the purchase of the Common Stock, and will survive
any acceptance or rejection of a Subscription for the Common
Stock. Subscriber agrees to indemnify and hold harmless the
Corporation from and against any claim, liability, cost or expense (including
without limitation attorneys fees) due to, or arising from, any breach of any
representation, warranty or agreement of the Subscriber contained
herein.
DATED as of the.
| _______________________________________________ | _______________________________________________ |
| Name of Subscriber | Signature of Subscriber |
| _______________________________________________ | |
| Printed Name | |
| _______________________________________________ | |
| Title | |
| _______________________________________________ | |
| _______________________________________________ | _______________________________________________ |
| Federal ID Number or | Subscriber's Address |
|
Social
Security Number
|
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