Contract
X
X VISION ENTERPRISES, INC.
THIS
SUBSCRIPTION AGREEMENT
(this
“Subscription
Agreement”)
dated
as of June 18, 2007 by and between X
X
VISION
ENTERPRISES, INC.,
a
Delaware corporation (the “Corporation”), and the each of the Subscribers
executing a signature page to this Subscription Agreement.
The
Corporation is offering (the “Offering”)
up to
77 shares (the “Shares”)
of the
Common Stock, par value $0.01, of the Corporation.
A. General.
(1) The
undersigned hereby subscribes for and agrees to purchase from the Corporation,
and the Corporation agrees to sell to the undersigned, such number of Shares
as
is set forth on the signature page hereof at a price per Share set forth on
such
signature page.
(2) The
undersigned herewith tenders to the Corporation the entire amount of the
purchase price in
the
manner indicated on the signature page hereof.
B. Securities
offered will not be registered under the Securities Act of 1933, as
amended
The
undersigned acknowledges that (i) the Securities will not be registered under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the “1933
Act”),
or
the securities laws of any state; (ii) absent an exemption, any transfer of
the
Securities would require registration; (iii) the Securities are being offered
for sale in reliance upon exemptions from registration contained in the 1933
Act
and applicable state laws; and (iv) the Corporation’s reliance upon such
exemption is based in part upon the undersigned’s representations, warranties
and agreements contained in this Subscription Agreement.
C. Representations,
Warranties, Acknowledgements and Agreements
In
order
to induce the Corporation to accept this Subscription Agreement, the undersigned
represents, warrants, acknowledges and covenants to the Corporation as
follows:
(1) The
undersigned understands that (i) this Subscription Agreement may be accepted
or
rejected in whole or in part by the Corporation in its sole and absolute
discretion, and (ii) this Subscription Agreement shall survive the undersigned’s
death, disability or insolvency, except that the undersigned shall have no
obligation in the event that this Subscription Agreement is rejected by the
Corporation. In the event that the Corporation does not accept the undersigned’s
subscription, or if the Offering is terminated for any reason, the undersigned’s
subscription payment (or portion thereof, as the case may be) will be returned
to the undersigned without interest or deduction.
(2) The
undersigned has carefully read this Subscription Agreement and such materials
as
the Company deems necessary to the Offering (collectively, the “Offering
Materials”).
In
making the decision to invest in the Shares, the undersigned has relied solely
upon the information provided by the Company in the Offering Materials. To
the
extent necessary, the undersigned has discussed with his, her or its counsel
the
representations, warranties and agreements which the undersigned makes by
signing this Subscription Agreement, the applicable limitations upon the
undersigned’s resale of the Shares, and the investment, tax and legal
consequences of this Subscription Agreement. The undersigned disclaims reliance
on any statements made or information provided by any person or entity in the
course of the undersigned’s consideration of an investment in the Securities
other than the Offering Materials.
(3) The
undersigned understands that no federal or state agency has made any finding
or
determination regarding the fairness of the Offering, or any recommendation
or
endorsement of the Offering.
(4) The
undersigned is purchasing the Securities for the undersigned’s own account, with
the intention of holding the Shares for investment purposes, with no present
intention of dividing or allowing others to participate in this investment
or of
reselling or otherwise participating, directly or indirectly, in a distribution
of the Shares; and shall not make any sale, transfer or other disposition of
the
Shares without registration under the 1933 Act and applicable state securities
laws unless an exemption from registration is available under those laws. The
undersigned is not acquiring any portion of the Shares, or any interest therein,
on behalf of another person. No person other than the undersigned has any direct
or indirect beneficial interest in the Shares subscribed for hereunder by the
undersigned. The undersigned, if an entity, was not formed for the purpose
of
purchasing the Shares.
(5) The
undersigned’s overall commitment to investments which are not readily marketable
is not disproportionate to the undersigned’s net worth, and the undersigned’s
investment in the Shares will not cause such overall commitment to become
excessive.
(6) The
undersigned is an “accredited investor” as that term is defined in Rule 501(a)
under Regulation D promulgated by the Securities and Exchange Commission (the
“SEC”)
under
the 1933 Act. The undersigned is financially able to bear the economic risk
of
this investment, including the ability to afford holding the Shares for an
indefinite period or to afford a complete loss of this investment.
(7) The
address shown under the undersigned’s signature at the end of this Subscription
Agreement is the undersigned’s principal residence if he or she is an
individual, or its principal business address if a corporation or other
entity.
(8) The
undersigned has such knowledge and experience in financial business matters
as
to be capable of evaluating the merits and risks of an investment in the Shares.
The undersigned acknowledges that the undersigned must rely on his, her or
its
own examination of the Corporation and the terms and conditions of the Offering
prior to making any investment decision with respect to the Shares.
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(9) The
undersigned has been given the opportunity to ask questions of and receive
answers from the Corporation and its executive officers concerning the business
and operations of the Corporation and the terms, provisions, and conditions
of
the Offering, and to obtain any such additional information that the undersigned
deems necessary or advisable to verify the accuracy of the information contained
in the Offering Materials, or such other information as the undersigned desired
in order to evaluate an investment in the Company; and the undersigned availed
himself, herself or itself of such opportunity to the extent considered
appropriate in order to evaluate the merits and risks of the proposed
investment.
(10) The
undersigned has made an independent evaluation of the merits of the investment
and acknowledges the high risk nature of the investment.
(11) (i) The
undersigned understands that none of the Shares have been registered under
the
1933 Act or any state securities laws in reliance on exemptions for private
offerings; the Shares cannot be resold or otherwise disposed of unless they
are
subsequently registered under the 1933 Act and applicable state securities
laws
or an exemption from registration is available. The certificate(s) representing
the Shares will bear a legend substantially similar to the legend set forth
immediately below until (i) such Shares shall have been registered under the
1933 Act and effectively disposed of in accordance with a registration
statement, or (ii) in the opinion of counsel reasonably satisfactory to the
Corporation such securities may be sold without registration under the 1933
Act:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE “BLUE SKY” OR
SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE 1933 ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH
RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT BUT ONLY UPON A HOLDER THEREOF FIRST HAVING
OBTAINED THE WRITTEN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE
PROVISIONS OF THE 1933 ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR
SECURITIES LAWS.”
(ii) The
undersigned understands that in the absence of registration by the Corporation,
the Shares will not be, and, except as set forth in Section D of this
Subscription Agreement, the undersigned will have no rights to require that
the
Shares shall be, registered under the 1933 Act or any state securities laws;
the
undersigned may have to hold the Shares indefinitely and it may not be possible
for the undersigned to liquidate his, her or its investment in the Corporation;
and the undersigned should not purchase any Shares unless he, she or it can
afford a complete loss of his, her or its investment and bear the burden of
such
loss for an indefinite period of time.
3
(iii) The
undersigned understands there is no public market for the Shares and that no
public market may develop for any such Shares. The undersigned understands
that
the provisions of Rule 144 promulgated under the 1933 Act to permit resales
of
the Shares are not available for at least one (1) year after the same class
of
securities is registered under the 1933 Act and the Securities Exchange Act
of
1934, as amended (the “1934
Act”),
and
there can be no assurances that any such class of securities will ever be
registered under the 1933 Act or the 1934 Act, or even if such class of
securities is registered under the 1933 Act and the 1934 Act, that the
conditions necessary thereafter to permit routine sales of the Shares under
Rule
144 will ever be satisfied, and, if Rule 144 should become available, routine
sales made in reliance on its provisions could be made only in limited amounts
and in accordance with the terms and conditions of Rule 144. The undersigned
further understands that in connection with the sale of securities for which
Rule 144 is not available, compliance with some other exemption from
registration will be required. The undersigned understands, subject to the
provisions of Section D of this Subscription Agreement, that the Corporation
is
under no obligation to the undersigned to register any such class of securities
or to comply with the conditions of Rule 144 or take any other action necessary
in order to make available any exemption for the resale of the Shares without
registration.
(12) If
at any
time prior to issuance of the Shares to the undersigned, any representation
or
warranty of the undersigned shall no longer be true, the undersigned promptly
shall give written notice thereof to the Corporation specifying which
representations and warranties are not true and the reason therefor, whereupon
the undersigned’s subscription may be rejected by the Corporation in whole or in
part.
(13) Notwithstanding
the place where this Subscription Agreement may be executed by any of the
parties hereto, all of the terms, provisions, and conditions hereof shall be
construed in accordance with and governed by the laws of the State of
New
York,
without giving effect to its conflict of laws principles. Any dispute that
may
arise out of or in connection with this Subscription Agreement shall be
adjudicated before a court located in New
York
City
and the
parties hereto submit to the exclusive jurisdiction and venue of the state and
local courts of the State of New
York
located
in New
York
City
and of
the federal courts in the Southern
District
of New
York
with
respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any action or proceeding brought in such a court or respecting the
fact
that such court is an inconvenient forum, relating to or arising out of this
Subscription Agreement or any acts or omissions relating to the sale of the
Shares, and the undersigned consents to the service of process in any such
action or legal proceeding by means of registered or certified mail, return
receipt requested, in care of the address set forth below or such other address
as the undersigned shall furnish in writing to the Corporation.
(14) THE
UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT, FRAUD
OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION
AGREEMENT OR THE UNDERSIGNED’S PURCHASE OF THE SHARES.
4
(15) The
undersigned acknowledges that he, she or it understands the meaning and legal
consequences of the representations, warranties and acknowledgments contained
in
this Subscription Agreement, and hereby agrees to indemnify and hold harmless
the Corporation, and each of its stockholders, officers, directors, affiliates,
controlling persons, agents and representatives, from and against any and all
loss, damage, expense, claim, action, suit or proceeding (including the
reasonable fees and expenses of legal counsel) as incurred arising out of or
in
any manner whatsoever connected with (i) a breach of any representation or
warranty of the undersigned contained in this Subscription Agreement (ii) any
sale or distribution by the undersigned in violation of the 1933 Act or any
applicable state securities laws or (iii) any untrue statement of a material
fact made by the undersigned and contained herein, or omission to state herein,
a material fact necessary in order to make the statements contained herein,
in
light of the circumstances under which they were made, not misleading. The
undersigned acknowledges that such damage could be substantial since (a) the
Shares are being offered without registration under the 1933 Act in reliance
upon the exemption pursuant to Section 4(2) and/or Regulation D of the 1933
Act
for transactions by an issuer not involving a public offering and, in various
states, pursuant to exemptions from registration, (b) the availability of such
exemptions is, in part, dependent upon the truthfulness and accuracy of the
representations made by the undersigned herein, and (c) the Corporation will
rely on such representations in accepting the undersigned’s Subscription
Agreement.
(16) The
undersigned is not subscribing for the Shares as a result of or subsequent
to
any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
any
seminar or meeting, or any solicitation of a subscription by a person not
previously known to the undersigned in connection with investments in securities
generally.
(17) Unless
otherwise indicated on a separate sheet of paper that details any such
affiliation submitted by the undersigned to the Corporation along with this
completed Subscription Agreement, the undersigned is not affiliated directly
or
indirectly with a member broker-dealer firm of the National Association of
Securities Dealers, Inc. as an employee, officer, director, partner or
shareholder or as a relative or member of the same household of an employee,
director, partner or shareholder of an NASD member broker-dealer
firm.
(18) Except
as
expressly provided herein, this Subscription Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
hereunder and may be amended only by a writing executed by all of the parties
hereto. The undersigned represents that he, she or it has full power and
authority (corporate, statutory or otherwise) to execute and deliver this
Subscription Agreement and the other Offering Materials to which the undersigned
is a party and to purchase the Shares. The execution, delivery and performance
of this Subscription Agreement will not: (i) violate, conflict with or result
in
a default under any provision of the Certificate or By-Laws (or analogous
organizational documents), if any, of the undersigned; or (ii) violate or
result in a violation of, or constitute a default (whether after the giving
of
notice, lapse of time or both) under, any provision of any law, regulation
or
rule, or any order of, or any restriction imposed by any court or other
governmental agency applicable to the undersigned, except for those which do
not, or are not reasonably likely to, adversely affect the undersigned’s ability
to perform its obligations under this Subscription Agreement and to consummate
the transactions contemplated hereby and thereby. This Subscription Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable against the undersigned in accordance with its terms. This
Subscription Agreement supersedes all prior arrangements or understandings
with
respect thereto, whether oral or written. The terms and conditions of this
Subscription Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors, heirs and assigns.
5
(19) The
undersigned understands that the Corporation intends to use the net proceeds
from the Offering for, among other things, sales and marketing, capital
expenditures, and other corporate and working capital purposes.
In
order
to induce the undersigned to execute and deliver this Subscription Agreement,
the Corporation represents, warrants, and covenants to the undersigned as
follows:
(1) The
Corporation is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly authorized to
transact business as a foreign corporation in the State of New York. The
Corporation has full power and authority to own its properties and to carry
on
its business as currently conducted.
(2) The
execution, delivery and performance by the Corporation of this Subscription
Agreement and the Offering and sale of Shares to accredited investors
contemplated hereby shall, assuming the representations and warranties of the
undersigned are correct, be in compliance with the exemptions from registration
set forth in Regulation D and/or Section 4(2) of the 1933 Act and applicable
state securities “blue sky” laws, and the Corporation, in reliance on the
representations and warranties of the undersigned, shall make all filings
required to qualify for such exemptions. No additional permit, license,
exemption, consent, authorization or approval of, or the giving of any notice
by
the Corporation to, any governmental or regulatory body, agency or authority
is
required in order for the Corporation to execute, deliver and perform its
obligations hereunder, which has not been made, or will not when required be
made, by the Corporation. No notice by the Corporation to any third party,
and
no consent or approval of any third party, of the Corporation’s execution,
delivery and performance of this Subscription Agreement is required which has
not been given or obtained.
(3) The
Corporation has the requisite power and authority to execute and deliver this
Subscription Agreement, and perform its obligations herein, and consummate
the
transactions contemplated hereby. Upon the acceptance of the undersigned’s
subscription by the Corporation and the execution of this Subscription Agreement
by the Corporation, this Subscription Agreement will be a valid, legal and
binding obligation of the Corporation enforceable against the Corporation in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally and subject to general principles of
equity (regardless of whether such enforcement is considered in a proceeding
at
law or at equity).
6
D. Notice
Provisions
Any
and
all notices, demands or requests required or permitted to be given under this
Subscription Agreement shall be given in writing and sent, by registered or
certified U.S. mail, return receipt requested, by hand, or by overnight courier,
addressed to the parties hereto at their addresses set forth above or such
other
addresses as they may from time-to-time designate by written notice, given
in
accordance with the terms of this Section D, together with copies thereof as
follows:
In
the
case of the Corporation to:
X
X
Vision Enterprises, Inc.
00
Xxxx
00xx
Xxxxxx,
Xxxxx 0X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
X.
Xxxxxx, President and CEO
Fax:
(000) 000-0000
In
the
case of any owner of equity securities of the Corporation, to:
The
address of such equity owner on the books and records of the
Corporation.
Notice
given as provided in this Section shall be deemed effective: (i) on the business
day hand delivered (or, if it is not a business day, then the next succeeding
business day thereafter), (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if
it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
As
used herein, the term business day (other than Saturday or Sunday) shall mean
any day when commercial banks are open in the State of New York to accept
deposits.
E. Governing
Law; Jurisdiction; Venue.
(1) This
agreement shall be construed, interpreted and enforced in accordance with,
and
shall be governed by, the laws of the state of New York without regard to
principles of conflicts of laws.
(2)
Each
of
the parties hereto hereby irrevocably consents and submits to the jurisdiction
of the United States District Court for the Southern District of New York in
connection with any dispute arising out of or relating to this agreement or
the
transactions contemplated hereby, waives any objection to venue in such District
(unless such court lacks jurisdiction with respect to such dispute, in which
case, each of the parties hereto irrevocably consents to the jurisdiction of
the
courts of the State of New York located in New York County in
connection with such dispute and waives any objection to venue in the County
of
New York), and agrees that service of any summons, complaint, notice or other
process relating to such dispute may be effected in the manner provided
herein.
7
IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement on
this 3rd
day of
December, 2007.
|
X
X VISION ENTERPRISES, INC.
|
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx |
|
Xxxxxxxx
Xxxxxx
|
|
|
President
and Chief Executive Officer
|
|
8
IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement on
this 3rd
day of
December, 2007.
|
DIGITALFX
INTERNATIONAL, INC.
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Xxxxx
Xxxxxx
|
|
|
Chief
Executive Officer &
President
|
|
|
No.
of Shares Subscribed for:
|
20
|
|
Purchase
Price:
|
$ |
600,000
|
Federal
Tax Identification Number of Purchaser: 00-0000000
Mailing
Address:
0000
Xxxx
Xxxxxxx Xxxx, Xxxxx 0
Xxx
Xxxxx, Xxxxxx 00000
ACCEPTED
as of the 3rd
day of
December, 2007.
|
X
X VISION ENTERPRISES, INC.
|
|
|
By:
|
/s/
Xxxxxxxx Xxxxxx
|
|
Xxxxxxxx
Xxxxxx
|
|
|
President
and Chief Executive Officer
|
|
S-1
