EXHIBIT 2
Regulation S Subscription Agreement
7,500,000 Shares of Common Stock, as
amended
AMENDMENT NUMBER 1
TO
REGULATION S SUBSCRIPTION AGREEMENT
AMENDMENT NUMBER 1 TO REGULATION S SUBSCRIPTION AGREEMENT, dated as of
September 19, 2003 (this "Amendment"), by and between CIRMAKER TECHNOLOGY
CORPORATION, a Nevada corporation (the "Company"), and UNIVERSAL SECURITIES
CORP., a Belize corporation ("Universal"). Capitalized terms used, but not
otherwise defined, herein have the meanings ascribed to such terms in the
Agreement (as hereinafter defined).
BACKGROUND
The Company and Universal are parties to that certain Regulation S
Subscription Agreement, dated August 5, 2003 (the "Agreement"). The Agreement
relates to the subscription by Universal for 7,500,000 shares of the Company's
common stock at a price per share of $0.80 with aggregate gross proceeds payable
to the Company of $6,000,000. The Agreement contains a provision which states
that the subscription rights under the Agreement cannot be exercised unless
certain subscription rights of Universal pursuant to a separate subscription
agreement are first exercised. The parties desire to amend the Agreement to
remove this restriction.
NOW, THEREFORE, the parties hereto, intending to be legally bound and in
consideration of the mutual agreements and covenants contained herein and in the
Agreement, hereby agree to amend the Agreement as follows:
1. Amendment to Section 1. Section 1 of the Agreement is hereby amended
by deleting the following quoted text in its entirety from such section:
"THIS SUBSCRIPTION MAY ONLY BE EXERCISED IF SUBSCRIBER HAS EXERCISED IN
FULL AND FULLY PAID FOR 1,000,000 UNITS AT A PURCHASE PRICE OF U.S. $1.00 PER
SHARE AS PROVIDED FOR IN A SEPARATE SUBSCRIPTION AGREEMENT OF EVEN DATE HEREWITH
BETWEEN THE PARTIES HERETO."
2. Agreement Remains in Force. Except as expressly set forth in this
Amendment, the Agreement remains unmodified and in full force and effect.
3. Counterparts; Facsimile Execution. This Amendment may be executed in
any number of counterparts and by the parties hereto on separate counterparts
but all such counterparts shall together constitute one and the same instrument.
Facsimile execution and delivery of this Agreement is legal valid and binding
execution and delivery for all purposes.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
COMPANY
CIRMAKER TECHNOLOGY CORPORATION
By: /s/ Xxxxxxx Xxxx
----------------------------
Name: Xxxxxxx Xxxx
Title: President
UNIVERSAL
UNIVERSAL SECURITIES CORP.
By: /s/ Xxxxx Xxxx-Wen
----------------------------
Name: Xxxxx Xxxx-Wen
Title: President
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THE SECURITIES BEING SUBSCRIBED TO HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY JURISDICTION. THESE SECURITIES ARE
OFFERED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
FEDERAL AND STATE SECURITIES LAWS.
THE SECURITIES BEING SUBSCRIBED TO MAY NOT BE SOLD, OFFERED, OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A "U.S. PERSON" UNLESS THE SECURITIES ARE
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
CIRMAKER TECHNOLOGY CORPORATION
REGULATION S SUBSCRIPTION AGREEMENT
(FOREIGN SUBSCRIBERS)
Dated: August 5, 2003
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NAME AND ADDRESS OF SUBSCRIBER AMOUNT OF INVESTMENT
Universal Securities Corp. U.S. $6,000,000
4F-2
No. 155 Kung Xxxxx Xx NUMBER OF UNITS PURCHASED
Lo Tung Town
Yi Lan Hsien 7,500,000
Taiwan, Republic of China
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REGULATION S SUBSCRIPTION AGREEMENT, dated as of the date specified
above, by and between CIRMAKER TECHNOLOGY CORPORATION, a Nevada corporation (the
"Company"), and the undersigned subscriber (the "Subscriber").
BACKGROUND
The Company is seeking to raise capital through an offering (the
"Offering") to non-U.S. Persons of units (each a "Unit"). Each Unit consists of
one share of the Company's Common Stock, $0.001 par value per share ("Common
Stock"). The Subscriber desires to subscribe for the number of Units specified
in the box above (the "Units").
NOW, THEREFORE, in consideration of the premises and the respective
promises hereinafter set forth, the parties hereto hereby agree as follows:
1. SALE AND PURCHASE OF SECURITIES. Subject to compliance with applicable
Taiwanese and other non-United States securities laws, the Subscriber hereby is
granted the right to subscribe for all, or blocks of not less than 500,000 Units
or, if less, the remaining unexercised portion of the Units provided for under
this Agreement, of 7,500,000 Units at a price per Unit equal to U.S. $0.80 or an
aggregate of U.S.$6,000,000 for 7,500,000 Units. THIS SUBSCRIPTION MAY ONLY BE
EXERCISED IF SUBSCRIBER HAS EXERCISED IN FULL AND FULLY PAID FOR 1,000,000 UNITS
AT A PURCHASE PRICE OF U.S. $1.00 PER SHARE AS PROVIDED FOR IN A SEPARATE
SUBSCRIPTION AGREEMENT OF EVEN DATE HEREWITH BETWEEN THE PARTIES HERETO. If the
undersigned desires to exercise this subscription, it shall provide written
notice of its election to exercise to the Company accompanied by the payment of
the subscription price by delivery of a certified check or through other means
acceptable to the Company not later than 5:00 p.m. United States Eastern
Daylight time on December 31, 2003. The Subscriber hereby acknowledges and
agrees that this subscription shall be void and of no further force or effect if
not exercised on or before 5:00 United States Eastern Standard Time on December
31, 2003. Furthermore, this subscription shall only be exercised for all of the
Units or blocks of not less than 500,000 Units (or, if less, the remaining
unexercised portion of the Units provided for herein, and no partial exercise
shall be permitted.
2. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber by
his signature below hereby represents, warrants and certifies to the Company as
follows:
(a) The Subscriber is aware that the Offering has not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws or regulations in reliance upon exemptions of Section 4(2)
of the Securities Act and Regulation S thereunder, and similar exemptions under
state law. The Subscriber will not offer or sell the Units, the shares of Common
Stock constituting a part of the Units or the warrants constituting a part of
the Units (collectively, such Units and the underlying shares of Common Stock
and warrants to purchase Common Stock are hereinafter referred to as the
"Securities") unless they are registered or are exempt from registration under
the Securities Act of 1933, as amended (the "Securities Act"), and any
applicable state securities laws or regulations.
(b) The Subscriber is also aware that a legend will be placed on any
certificate or certificates evidencing the Securities stating that they have not
been registered under the Securities Act and setting forth or referring to the
restrictions on transfers and sales thereof. The Company will place stop
transfer instructions against the Securities and the certificates therefor to
restrict the transfer thereof, except as may be prescribed by the Securities
Act.
(c) The Subscriber, or his adviser, has such knowledge and experience
in financial and business matters that he is capable of evaluating the merits
and risks of, and protecting his interests in connection with, an investment in
the Units. The Subscriber is aware of the risks involved in his investment
herein.
(d) The Subscriber has been provided with the opportunity to discuss
the terms and conditions of this Offering and the business of the Company with
members of management and to review all relevant financial information, books,
records, and other information concerning the Company, such that the Subscriber
is familiar with the business, finances and general prospects for the future of
the Company which he may consider significant for the purpose of making an
investment decision. The Subscriber acknowledges that he has reviewed the
reports and other information filed by the Company (or others with respect to
the Company) with the Securities and Exchange Commission under the Securities
Exchange Act of 1934 and the Securities Act.
(e) The Subscriber has the full right, power and authority to enter
into this Agreement and to carry out and consummate the transactions
contemplated herein. This Agreement constitutes the legal, valid and binding
obligation of the Subscriber. If the Subscriber is a corporation or trust, the
officer or trustee executing this Agreement represents and warrants that he is
authorized to so sign; that the corporation or trust is authorized by the
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Articles (or Certificate) of Incorporation and By-laws of the corporation or by
the trust agreement, as the case may be, to make this investment.
(f) No representations, assurances or warranties have been made to
the Subscriber, or his adviser, by the Company or by any of its respective
officers, directors, agents, employees or affiliates, nor anyone else on their
behalf, concerning, among others, the future profitability of the Company or the
Subscriber's investment in it, and in entering into this transaction the
Subscriber is not relying upon any information, other than the results of his,
or his adviser's, own independent investigation.
(g) The Subscriber will not offer or sell the Securities (which term
shall include any pre-arrangement for a purchase by a U.S. person or other
person in the U.S.) directly or indirectly, in the United States or to any
natural person who is a resident of the United States or to any other "U.S.
person" (as defined below) or for the account or benefit of any "U.S. person"
unless registered under the Securities Act and all applicable state laws or an
exemption from the registration requirements of the Securities Act and similar
state laws is available.
(h) The Subscriber is neither a U.S. person nor acquiring the
Securities for the account or benefit of any U.S. person. The Subscriber, if
other than a natural person, was not formed for the purpose of acquiring the
Securities.
The Subscriber understands that a "U.S. person", as defined by
Regulation S in Rules 901 through 905 promulgated under the Securities Act
("Regulation S"), includes any natural person resident in the United States; any
partnership or corporation organized or incorporated under the laws of the
United States; any estate of which any executor or administrator is a "U.S.
person"; any trust of which any trustee is a "U.S. person"; any agency or branch
of a foreign entity located in the United States; any non-discretionary account
or similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a "U.S. person"; any discretionary
account or similar account (other than an estate or trust) held by a dealer or
other fiduciary organized, incorporated, or (if an individual) resident in the
United States; and any partnership or corporation organized or incorporated
under the laws of a jurisdiction other than the United States which was formed
by a "U.S. person" principally for the purpose of investing in securities not
registered under the Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) of Regulation D promulgated
under the Act) who are not natural persons, estates or trusts.
(i) The Subscriber is making this subscription from his residence or
offices at the address set forth above. The Subscriber understands that the
exemption afforded by Regulation S requires that the purchasers of the
securities not be in the United States when the offer is made. The purchase of
the Securities hereunder by the Subscriber is in accordance with all securities
and other laws of the jurisdiction in which it is incorporated or legally
resident. This Agreement has not been executed or delivered by the Subscriber in
the United States.
3. INDEMNITY BY THE SUBSCRIBER. The Subscriber understands and
acknowledges that the Company is relying on the representations made by the
Subscriber herein, and, thus, hereby agrees to indemnify the Company, and its
respective officers and directors, agents, attorneys, and employees, and agrees
to hold them harmless from and against any and all loss, damage, liability, or
expense, including reasonable attorney's fees, that it or any of them may
suffer, sustain, or incur by reason of or in connection with any
misrepresentation or breach of warranty or agreement made by the Subscriber
under this Agreement.
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4. MARKET STANDOFF PROVISION. The Subscriber hereby agrees that, if so
requested by the Company or any representative of the underwriters (the
"Managing Underwriter") in connection with any registration of the offering of
any securities of the Company under the Securities Act, the Subscriber shall not
sell or otherwise transfer any Securities or other securities of the Company
during the 180-day period (or such other period as may be requested in writing
by the Managing Underwriter and agreed to in writing by the Company) (the
"Market Standoff Period") following the effective date of a registration
statement of the Company filed under the Securities Act. The Company may impose
stop-transfer instructions with respect to Securities subject to the foregoing
restrictions until the end of such Market Standoff Period.
5. ADDITIONAL ACTION. The Subscriber shall, upon the request of the
Company, from time to time, execute and deliver promptly to the Company all
instruments and documents of further assurances or otherwise and will do any and
all such acts and things as may be reasonably required to carry out the
obligations of the Subscriber hereunder and to consummate the transactions
contemplated hereby.
6. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, heirs, successors
and assigns. This Agreement shall not be assignable, in whole or in part.
(b) This Agreement and any additional agreements and other documents
delivered pursuant hereto set forth the entire agreement and understanding of
the parties in respect of the subject matter hereof and thereof and supersede
all prior agreements, arrangements and understandings relating to the subject
matter hereof and thereof. This Agreement may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties.
(c) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect any other provisions hereof, and the remainder of the
Agreement shall be construed as if such invalid or unenforceable provision were
modified to the extent necessary to make it valid or enforceable but remain
within the spirit of this Agreement, or if that is not possible, then omitted.
(e) All notices provided for in this Agreement shall be in writing
signed by the party giving such notice, and delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail, return
receipt requested, or by telex, facsimile transmission, telegram or similar
means of communication if confirmed by mail to the Company at its current
address and to the Subscriber at its address as it appears on the books and
records of the Company. Notices shall be deemed to have been received on the
date of personal delivery or facsimile, or if sent by certified or registered
mail, return receipt requested, shall be deemed to be delivered on the third
business day after the date of mailing.
(f) This Agreement shall be governed and construed by the laws of the
State of New York, without giving effect to conflicts of law principles of such
state.
[signature page follows]
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SUBSCRIBER SIGNATURE PAGE
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement
as of the date first above written.
FOR INDIVIDUALS:
------------------------------
Print Name Above
------------------------------
Sign Name Above
FOR ENTITIES:
UNIVERSAL SECURITIES CORP.
By: Xxxxx Xxxx Wen
---------------------------
Name: Xxxxx Xxxx-Wen
Title: President
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CIRMAKER TECHNOLOGY CORPORATION
SUBSCRIPTION ACCEPTANCE
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
hereby accepts the subscription by Universal Securities Corp. to purchase
7,500,000 Units in accordance with the terms of the foregoing Subscription
Agreement as of the date first above written.
CIRMAKER TECHNOLOGY CORPORATION
By: Xxxxxxx Xxxx
---------------------------
Its: President
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