SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
EXHIBIT 10.3
| Name of Subscriber: | _______________ |
| Note Amount: | $______________ |
MACROSOLVE,
INC.
SUBSCRIPTION
AND INVESTMENT
REPRESENTATION
AGREEMENT
MacroSolve,
Inc.
0000 Xxxx
Xxxxxx Xxxxx
Xxxxx
000
Xxxxx,
Xxxxxxxx 00000
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"), a
Promissory Note (a "Note") in the original principal amount set forth
below. The terms and provisions of the Note are described in the
Private Placement Memorandum, including the Exhibits thereto (the “Memorandum”),
previously delivered by the Corporation to the Subscriber. The undersigned
Subscriber hereby tenders to the Corporation a check in the amount of the
Subscription. The Note and the shares of the Corporation's Securities
that may, at the option of the Corporation, be issued in payment of the Note are
sometimes collectively referred to herein as the "Securities."
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.
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1.
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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.
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2.
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Purchase Entirely for
Own Account. Subscriber is purchasing the Securities 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 Securities.
Subscriber has no present intention of selling, granting any participation
in, or otherwise distributing all or any part of the
Securities. Subscriber has made no agreement with any other
person or entity concerning the offer or sale of all or any part of the
Securities.
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3.
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Restricted
Securities. Subscriber understands and acknowledges that
the Securities are restricted and the offer and sale thereof have 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 Securities in the
absence of an effective registration statement covering said Securities
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 Securities 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 Securities. 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 Securities by Subscriber or
its representatives or
agents.
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4.
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Legends. Subscriber
consents to the placement of the following legend on the certificates for
the Securities:
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NEITHER
THE OFFER NOR SALE OF THIS NOTE OR THE SHARES OF COMMON STOCK OF MAKER WHICH MAY
BE ISSUED IN PAYMENT HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES
LAWS. THIS NOTE HAS BEEN, AND ANY SHARES OF COMMON STOCK WHICH MAY BE
ISSUED IN PAYMENT HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION THEREFROM.
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5.
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No
Approval. Subscriber is aware that no federal or state
agency has approved or disapproved of the Securities or made any review of
the offering or sale of the Securities 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 Securities as an
investment.
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2
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6.
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Accredited
Investor. Subscriber represents and warrants that it is
an accredited investor by virtue of the fact that it satisfies one or more
of the provisions set forth below in this
Section.
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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 director, executive officer, or general partner of the
Company;
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d.
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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 Series B Preferred Stock of the Company,
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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e.
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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 Series B
Preferred Stock of the Company, with total assets in excess of
$5,000,000;
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f.
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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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g.
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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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h.
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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.
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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 Securities,
including the potential loss of the entire amount of the
investment. Subscriber represents and warrants that in making
the decision to purchase the Securities, Subscriber has been advised to
rely upon, and has relied upon, independent investigations made by
Subscriber or Subscriber's representatives, including his or her 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.
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3
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8.
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Investment
Experience. The Subscriber believes that, either alone
or with the assistance of the Subscriber’s own professional advisors, he
or she has the knowledge and experience in business and financial matters
to enable the Subscriber to read, interpret and understand the Private
Placement Memorandum and the Corporation’s financial statements and all
other information of the Corporation, and to evaluate the merits and risks
of an investment in the Securities. Subscriber has been fully
informed of and is aware that an investment in the Securities 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.
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9.
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No Public
Market. Subscriber acknowledges that there presently is
no public market for the Securities and there may never be a public market
for the Securities. The Subscriber may not be able to liquidate
its investment in the Securities in the event of an emergency or to pledge
its Securities as collateral for loans. Subscriber represents
and warrants that the Securities constitute an investment which is
suitable and consistent with Subscriber's overall investment program and
that his or her financial situation enables Subscriber to bear the risks
of this investment for an indefinite period of
time.
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10.
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Address. If
the Subscriber is an individual, the address set forth above is his or her
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 above, and such entity was not formed
specifically to acquire the
Securities.
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11.
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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 issuance of
the Note, the Subscriber will immediately furnish the revised or
corrected information to the
Corporation.
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4
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12.
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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 Securities, and will survive any acceptance or
rejection of a Subscription for the Securities. 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.
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13.
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Risks. THE
SECURITIES OFFERED IN THIS SUBSCRIPTION AGREEMENT AFFORD A SIGNIFICANT
DEGREE OF RISK TO THE SUBSCRIBER. AN INVESTMENT IN THESE
SECURITIES IS SUITABLE ONLY AS A LONG-TERM INVESTMENT FOR PERSONS OF
ADEQUATE FINANCIAL MEANS WHO HAVE NO NEED FOR LIQUIDITY WITH RESPECT TO
THIS INVESTMENT AND WHO CAN AFFORD A LOSS OF THEIR ENTIRE
INVESTMENT. ALTHOUGH EVERY EFFORT HAS BEEN MADE TO ANTICIPATE
POSSIBLE RISKS, UNFORESEEN CONDITIONS AND UNEXPECTED EVENTS MAY ARISE, AND
THE FOLLOWING LIST OF RISK FACTORS MAY NOT BE ALL-INCLUSIVE. A
SUBSCRIBER CONSIDERING SUBSCRIBING FOR SHARES IN THE COMPANY SHOULD
CONSIDER ALL OF THE POTENTIAL RISKS OF INVESTMENT IN THE
COMPANY.
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DATED as
of the _____ day of __________, 2008.
| _____________________________________ | |
| Signature of Subscriber | |
| _____________________________________ | |
| Printed Name | |
| _____________________________________ | |
| Title |
ACCEPTED
this ____ day of __________, 2008.
MACROSOLVE,
INC.
By
____________________________
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