Print Name of Subscriber_________________
SUBSCRIPTION AGREEMENT
XxxxXxxxxx.xxx, Inc.
000 Xxxx Xxxxxx, X.X. Xxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
1. Subscription; Minimum; Placement Agent. I (sometimes referred to herein
as the "Investor") hereby subscribe for and agree to purchase _______________
shares of common stock, par value $.01 per share ("Common Stock"), of
XxxxXxxxxx.xxx, Inc. ("Company"), a Delaware corporation, at a purchase price of
$1.375 per share on the terms and conditions described herein and in the
Confidential Term Sheet ("Term Sheet"), dated March 3, 2000, together with all
exhibits and any supplements. The minimum subscription is $27,500, but X.X.
Xxxxxxxx & Co., Inc. ("Xxxxxxxx" or "Placement Agent") and the Company have the
discretion to accept subscriptions for less than the minimum. Xxxxxxxx is acting
as the exclusive placement agent for this offering. This offering will be made
on a "best efforts, $1,145,375 minimum, $1,832,875 maximum" basis.
2. Description of the Common Stock. Holders of the common stock are
entitled to dividends as and when declared by the Board of Directors of the
Company from funds legally available for such purpose. However, the Company has
never declared or paid dividends on its common stock and does not intend to do
so for the foreseeable future. Upon liquidation, shares of common stock are
entitled to a pro rata share in any distribution available to holders of common
stock. The holders of common stock have one vote per share on each matter to be
voted upon by stockholders. The common stock is not entitled to cumulative
voting and holders of common stock do not have any pre-emptive rights. All of
the outstanding shares of common stock are, and all of the shares of common
stock issued in this offering will be, validly issued, fully paid and
non-assessable.
3. Purchase.
3.1 Escrow Account. I (i) hereby tender instructions for the transfer of
funds in the amount indicated above from my account at Xxxxxxxx or (ii) have
instructed my bank to wire funds in the amount indicated above from my account
at such bank to the order of "CST&T AAF - XxxxXxxxxx.xxx, Inc." I hereby tender
two manually executed copies of this Subscription Agreement, a completed and
executed copy of my Confidential Purchaser Questionnaire and a completed and
executed copy of my NASD Questionnaire.
3.2 Offering Period. This offering will continue until March 31, 2000,
unless such date is extended, without notice to the Investor, by mutual consent
of Xxxxxxxx and the Company, to a date not later than April 30, 2000
("Termination Date"). Prior to the earlier of a Closing (as defined in Section 5
hereof) or the Termination Date, my cash, check or wire transfer delivered
herewith will be held in escrow by Continental Stock Transfer & Trust Company,
as escrow agent, subject to the terms and conditions herein. If subscriptions
for at least 833,000 shares of Common Stock are not received and accepted by the
Company by the Termination Date, my payment will be returned to me without
interest or deduction.
4. Acceptance or Rejection of Subscription. The Company and Xxxxxxxx have
the right to reject this subscription for the Common Stock, in whole or in part
for any reason and at any time prior to the Closing (as defined in Section 5
below) with respect to my subscription, notwithstanding prior receipt by me of
notice of acceptance of my subscription. In the event of the rejection of this
subscription, my subscription payment will be promptly returned to me without
interest or deduction and this Subscription Agreement shall have no force or
effect. In the event my subscription is accepted and there is a Closing, my
subscription proceeds shall be released to the Company and the certificates
representing the shares of Common Stock will be promptly delivered to me.
5. Closing and Delivery of Common Stock. An initial closing ("Initial
Closing") may occur at the office of Xxxxxxxx Xxxxxx & Xxxxxx ("GM&M") at any
time prior to the Termination Date and after the sale by the Company of at least
833,000 shares of Common Stock, as determined jointly by the Company and
Xxxxxxxx. After the Initial Closing, subsequent closings with respect to the
sale of additional shares of Common Stock may take place at any time prior to
the Termination Date (each such closing, together with the Initial Closing,
being referred to as the "Closing"). The Common Stock subscribed for herein
shall not be deemed issued to or owned by me until two copies of this
Subscription Agreement have been executed by me and countersigned by the Company
and a Closing with respect to my subscription has occurred.
6. Disclosure. This offering is limited to accredited investors as defined
in Section 2(15) of the Securities Act of 1933, as amended ("Securities Act"),
and Rule 501 promulgated thereunder, and is being made without registration
under the Securities Act in reliance upon the exemptions contained in Sections
3(b), 4(2) and/or 4(6) of the Securities Act and applicable state securities
laws. I acknowledge receipt of the Term Sheet and all exhibits listed therein
and represent that I have carefully reviewed and understand the Term Sheet and
its exhibits. I have received all information and materials regarding the
Company that I have requested.
7. Registration Rights; Lock-Up.
7.1 Registration in 13 Months.
(a) Grant of Right. The Company agrees to file a registration statement
under the Securities Act for the resale of the common stock sold in the offering
contemplated by the Term Sheet (the "Registrable Securities") not later than 13
months after the Initial Closing and to use its best efforts to have such
registration statement declared effective promptly thereafter. The Company's
obligation to file a registration statement pursuant to this Section 7.1 shall
be deemed to have been fulfilled if and to the extent that prior to the date
that is 13 months after the Initial Closing the Registrable Securities are
included on a registration statement filed by the Company pursuant to Section
7.2 below.
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(b) Terms. The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, but the Investors shall pay any and all
underwriting commissions and the fees and expenses of any legal counsel selected
by the Investors to represent them in connection with the sale of the
Registrable Securities. The Company agrees to use its best efforts to qualify or
register the Registrable Securities in such States as are reasonably requested
by the holders ("Holders") thereof; provided, however, that in no event shall
the Company be required to register the Registrable Securities in a State in
which such registration would cause (i) the Company to be obligated to register
or be licensed to do business in such State, or (ii) the principal stockholders
of the Company to be obligated to escrow their shares of capital stock of the
Company. The Company shall cause any registration statement filed pursuant to
the rights granted under Section 7.1(a) to remain effective, and any State
qualifications or registrations obtained or filed pursuant to this Section
7.1(b) to continue in effect, for a period of at least nine consecutive months
from the date that the Holders of the Registrable Securities covered by such
registration statement are first given the opportunity to sell all of such
securities.
7.2 "Piggy-Back" Registration.
(a) Grant of Right. In addition to the right of registration set forth in
Section 7.1, the Holders shall have the right until the date that is five years
after the date of the Initial Closing to include the Registrable Securities as
part of any other registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a) under the Securities
Act or pursuant to Form S-8 or any equivalent form), provided, however, that if,
in the written opinion of the Company's managing underwriter or underwriters, if
any, for such offering, the inclusion of the Registrable Securities, when added
to the securities being registered by the Company or the selling stockholder(s),
will exceed the maximum amount of the Company's securities that can be marketed
(i) at a price reasonably related to their then current market value, or (ii)
without materially and adversely affecting the entire offering, the Company
shall nevertheless register all or any portion of the Registrable Securities
required to be so registered but such Registrable Securities shall not be sold
by the Holders until 90 days after the registration statement for such offering
has become effective and provided further that, if any securities are registered
for sale on behalf of other stockholders in such offering and such stockholders
have not agreed to defer such sale until the expiration of such 90 day period,
the number of securities to be sold by all stockholders in such public offering
during such 90 day period shall be apportioned pro rata among all such selling
stockholders, including all Holders of the Registrable Securities, according to
the total amount of securities of the Company owned by said selling
stockholders, including all Holders of the Registrable Securities.
(b) Terms. The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, but the Holders shall pay any and all
underwriting commissions and the expenses of any legal counsel selected by the
Holders to represent them in connection with the sale of the Registrable
Securities. In the event of such a proposed registration, the Company shall
furnish the then Holders of outstanding Registrable Securities with not less
than 30 days' written notice prior to the proposed date of filing of such
registration statement. Such notice shall continue to be given for each
registration statement filed by the Company until the earlier of (i) such time
as all of the Registrable Securities have been sold by the Holders thereof or
(ii) the expiration of the "piggy- back" rights provided for herein. The Holders
of the Registrable Securities shall exercise the "piggy-back" rights provided
for herein by giving written notice within 20 days of the receipt of the
Company's notice of its intention to file a registration statement. The Company
shall cause any registration statement filed pursuant to the above "piggy-back"
rights to remain effective for a period of at least nine consecutive months from
the date that the Holders of the Registrable Securities covered by such
registration statement are first given the opportunity to sell all of such
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securities. Notwithstanding the provisions of this Section 7.2, the Company
shall have the right at any time after it shall have given written notice of its
intention to file a registration statement (irrespective of whether a written
request for inclusion of any Registrable Securities shall have been made) to
elect not to file any such proposed registration statement, or to withdraw the
same after the filing but prior to the effective date thereof.
7.3 General Terms.
(a) Indemnification. The Company shall indemnify the Holder(s) of the
Registrable Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such Holders within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all reasonable attorneys' fees and other
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the
Securities Act, the Exchange Act or otherwise, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in (i)
such registration statement; or (ii) any application or other document or
written communication (in this Section 7.3 collectively called "application")
executed by the Company or based upon written information furnished by the
Company in any jurisdiction in order to qualify the Registrable Securities under
the securities laws thereof or filed with the Securities and Exchange Commission
("Commission"), any state securities commission or agency, Nasdaq or any
securities exchange; or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon, and in strict
conformity with, written information furnished to the Company with respect to
the Holder(s) by or on behalf of the Holder(s) expressly for use in such
registration statement or in any application, as the case may be. The Company
agrees promptly to notify the Holder(s) of the commencement of any litigation or
proceedings against the Company or any of its officers, directors or controlling
persons in connection with the issue and sale of the Registrable Securities or
in connection with the registration statement or any application. The Holder(s)
and their successors and assigns shall severally, and not jointly, indemnify the
Company, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Securities Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such Holders, with respect
to such Holders, in writing, for specific inclusion in such registration
statement or any application.
(b) Elimination of Registration Rights. Notwithstanding anything to the
contrary in Section 7.2, no Holders shall be entitled to have their Registrable
Securities registered under the Securities Act if, in the opinion of counsel to
the Company, they may be sold without restriction pursuant to Rule 144(k)
promulgated under the Securities Act and any restrictive legends under the
Securities Act are removed from the certificates representing such securities
and any stop transfer order for such certificates is removed.
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(c) Successors and Assigns. The registration rights granted to the
Holders inure to the benefit of all the Holders' successors, heirs, pledgees,
assignees, transferees and purchasers of the Registrable Securities.
(d) Documents Delivered to Holders. The Company shall furnish to each
Holder participating in any of the foregoing offerings that are underwritten and
to each underwriter of any such offering, if any, a signed counterpart,
addressed to such Holder or underwriter, of (i) an opinion of counsel to the
Company, dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the date
of the closing under any underwriting agreement related thereto), and (ii) a
"cold comfort" letter dated the effective date of such registration statement
(and a letter dated the date of the closing under the underwriting agreement)
signed by the independent public accountants who have issued a report on the
Company's financial statements included in such registration statement, in each
case covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to each Holder
participating in the offering requesting the correspondence and memoranda
described below and to the managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc.
(e) Underwriting Agreement. The Company shall enter into an underwriting
agreement with the underwriter representing the Holders whose Registrable
Securities are being registered pursuant to Section 7.1 in connection with an
underwritten offering. Such underwriter must be reasonably acceptable to the
Company. Such agreement shall be reasonably satisfactory in form and substance
to the Company, each Holder and such underwriter, and shall contain such
representations, warranties and covenants by the Company and such other terms as
are customarily contained in agreements of that type used by the underwriter.
The Holders shall be parties to any underwriting agreement relating to an
underwritten sale of their Registrable Securities and may, at their option,
require that any or all the representations, warranties and covenants of the
Company to or for the benefit of such underwriter shall also be made to and for
the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriter except as they may relate to such Holders, their shares and their
intended methods of distribution.
(f) Documents to be Delivered by Holder(s). Each of the Holder(s)
participating in any of the foregoing offerings shall furnish to the Company a
completed and executed questionnaire provided by the Company requesting
information customarily sought of selling security holders.
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7.4 Lock-up. I agree that, notwithstanding the registration rights set
forth in this Section 7, the Shares offered hereby may not be sold or otherwise
transferred until the date that is one year after the date of the Initial
Closing, unless (i) Xxxxxxxx, in its sole discretion, agrees to the sale of all
or part of such securities at an earlier date and (ii) if I am a Pennsylvania
resident, I comply with ss. 204.11 of the Pennsylvania Blue Sky Regulations. The
parties hereto agree that Xxxxxxxx is a third-party beneficiary of this
Subscription Agreement and that no modification of the "lock-up" provisions
contained in this Section 7.4 may be made without the prior written consent of
Xxxxxxxx.
8. Investor Representations and Warranties. I acknowledge, represent and
warrant to, and agree with, the Company and the Placement Agent as follows:
(a) I am aware that the Common Stock is a speculative investment that
involves a high degree of risk of loss of my entire investment. I have read and
fully understand the Term Sheet, including the section entitled "Risk Factors".
I acknowledge and fully understand the nature of the risks involved in
purchasing the Common Stock.
(b) I acknowledge and am aware that despite its organization in 1968 the
Company is essentially in the startup stage, has not yet derived sufficient
revenues from its current business operations to maintain operations and has
incurred losses since the commencement of its current business operations in May
1999. I acknowledge that there is no assurance as to the future performance of
the Company.
(c) I acknowledge that, notwithstanding the Company's commitment herein,
there can be no assurance that the Company will file any registration statement
for the securities I am purchasing, that such registration statement, if filed,
will be declared effective or, if declared effective, that the Company will be
able to keep it effective until I sell the securities registered thereon.
(d) I am purchasing the Common Stock for my own account for investment
and not with a view to or for sale in connection with the distribution of the
Common Stock, nor with any present intention of selling or otherwise disposing
of all or any part of the Common Stock. I understand that there is no market at
present and there may not be any market in the future for the Common Stock. I
agree that (i) the purchase of the Common Stock is a long-term investment, (ii)
I may have to bear the economic risk of investment for an indefinite period of
time because the Common Stock has not been registered under the Securities Act
and, notwithstanding the Company's commitment herein, may not be registered and,
cannot be resold, pledged, assigned, or otherwise disposed of unless it is
subsequently registered under said Securities Act and under applicable
securities laws of certain states or an exemption from such registration is
available. I understand that, except as set forth herein, the Company is under
no obligation to register the Common Stock or to assist me in complying with any
exemption from such registration under the Securities Act or any state
securities laws. I hereby authorize the Company to place a legend denoting the
restrictions on the shares of Common Stock to be issued.
(e) I recognize that the Common Stock, as an investment, involves a high
degree of risk including, but not limited to, the risk of economic losses from
operations of the Company and the total loss of my investment. I am qualified by
my knowledge and experience to evaluate investments of this type. I believe that
the investment in the Common Stock is suitable for me based upon my investment
objectives and financial needs, and I have adequate means for providing for my
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current financial needs and contingencies and have no need for liquidity with
respect to my investment in the Company. The investment in the Company does not
constitute my complete portfolio.
(f) I have been given access to full and complete information regarding
the Company and have utilized such access to my satisfaction for the purpose of
obtaining information in addition to, or verifying information included in, the
Term Sheet and exhibits thereto, and I have either met with or been given
reasonable opportunity to meet with officers of the Company for the purpose of
asking questions of, and receiving answers from, such officers concerning the
terms and conditions of the offering of the Common Stock and the business and
operations of the Company and to obtain any additional information, to the
extent reasonably available.
(g) I have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Common Stock and have obtained, in my judgment, sufficient information from
the Company to evaluate the merits and risks of an investment in the Company. I
have not utilized any person as my purchaser representative as defined in
Regulation D in connection with evaluating such merits and risks.
(h) I have relied solely upon my own investigation in making a decision
tp invest in the Company.
(i) I have received no representation or warranty from the Company or the
Placement Agent or any of their respective officers, directors, employees or
agents in respect of my investment in the Company and I have received no
information (written or otherwise) from them relating to the Company or its
business other than as set forth in the Term Sheet. I am not participating in
the offer as a result of or subsequent to: (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television, radio or the Internet or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising.
(j) I have had full opportunity to ask questions and to receive
satisfactory answers concerning the offering and other matters pertaining to my
investment and all such questions have been answered to my full satisfaction. In
addition, as required by Section 517.061(11)(a)(3), Florida Statutes and by Rule
3-500.05(a) thereunder, if I am a Florida resident I may have, at the offices of
the Company, at any reasonable hour, after reasonable notice, access to the
materials set forth in the Rule that the Company can obtain without unreasonable
effort or expense.
(k) I have been provided an opportunity to obtain any additional
information concerning the offering and the Company and all other information to
the extent the Company possesses such information or can acquire it without
unreasonable effort or expense.
(l) I am an "accredited investor" as defined in Section 2(15) of the
Securities Act and in Rule 501 promulgated thereunder.
(m) I understand that (i) the Common Stock has not been registered under
the Securities Act or the securities laws of certain states in reliance on
specific exemptions from registration, (ii) no securities administrator of any
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state or the federal government has recommended or endorsed this offering or
made any finding or determination relating to the fairness of an investment in
the Company, and (iii) the Company is relying on my representations and
agreements for the purpose of determining whether this transaction meets the
requirements of the exemptions afforded by the Securities Act and certain state
securities laws.
(n) I have been urged to seek independent advice from my professional
advisors relating to the suitability of an investment in the Company in view of
my overall financial needs and with respect to the legal and tax implications of
such investment.
(o) If the Investor is a corporation, company, trust, employee benefit
plan, individual retirement account, Xxxxx Plan, or other tax-exempt entity, it
is authorized and qualified to become an Investor in the Company and the person
signing this Subscription Agreement on behalf of such entity has been duly
authorized by such entity to do so.
(p) I hereby acknowledge and am aware that except for any rescission
rights that may be provided under applicable laws, I am not entitled to cancel,
terminate or revoke this subscription, and any agreements made in connection
herewith shall survive my death or disability.
(q) My responses to the questions in my Purchaser Questionnaire and my
NASD Questionnaire delivered herewith to the Company are true and correct.
9. Indemnification. I hereby agree to indemnify and hold harmless the
Company and Xxxxxxxx, as Placement Agent, their respective officers, directors,
stockholders, employees, agents, and attorneys against any and all losses,
claims, demands, liabilities, and expenses (including reasonable legal or other
expenses, including reasonable attorneys' fees and other expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever
incurred by the indemnified party in any action or proceeding between the
indemnitor and the indemnified party or between the indemnified party and any
third party or otherwise) incurred by each such person in connection with
defending or investigating any such claims or liabilities, whether or not
resulting in any liability to such person, to which any such indemnified party
may become subject under the Securities Act, under any other statute, at common
law or otherwise, insofar as such losses, claims, demands, liabilities and
expenses (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact made by me and contained in this
Subscription Agreement or my Purchaser Questionnaire, or (b) arise out of or are
based upon any breach by me of any representation, warranty, or agreement made
by me contained herein, or (c) arise out of or are based upon any material
misstatement or omission in my Purchaser Information. Xxxxxxxx is a third-party
beneficiary of this Section 9 and this Section 9 may not be modified or amended
without the prior written agreement of Xxxxxxxx.
10. Severability; Remedies. In the event any parts of this Subscription
Agreement are found to be void, the remaining provisions of this Subscription
Agreement shall nevertheless be binding with the same effect as though the void
parts were deleted.
11. Governing Law and Jurisdiction. This Subscription Agreement will be
deemed to have been made and delivered in New York City and will be governed as
to validity, interpretation, construction, effect and in all other respects by
the internal laws of the State of New York. The Company hereby (i) agrees that
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any legal suit, action or proceeding arising out of or relating to this
Subscription Agreement shall be instituted exclusively in New York State Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York, (ii) waives any objection to the venue of any
such suit, action or proceeding and the right to assert that such forum is not a
convenient forum for such suit, action or proceeding, (iii) irrevocably consents
to the jurisdiction of the New York State Supreme Court, County of New York, and
the United States District Court for the Southern District of New York in any
such suit, action or proceeding, (iv) agrees to accept and acknowledge service
of any and all process that may be served in any such suit, action or proceeding
in New York State Supreme Court, County of New York or in the United States
District Court for the Southern District of New York and (v) agrees that service
of process upon it mailed by certified mail to its address shall be deemed in
every respect effective service of process upon it in any suit, action or
proceeding.
12. Counterparts. This Subscription Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Subscription Agreement may be by actual or facsimile signature.
13. Benefit. This Subscription Agreement shall be binding upon and inure to
the benefit of the parties hereto (and Xxxxxxxx to the extent it is a
third-party beneficiary hereof) and their respective heirs, executors, personal
representatives, successors and assigns. Xxxxxxxx shall be deemed to be a
third-party beneficiary with respect to any sections hereof that so state or
that otherwise indicate that Xxxxxxxx would be entitled to rely on the
representations, warranties or covenants made by me therein.
14. Notices. All notices, offers, acceptance and any other acts under this
Subscription Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by overnight
courier service, by confirmed facsimile or, if mailed, postage prepaid, by
certified mail (return receipt requested), and shall be effective three days
after being placed in the mail if mailed, or upon receipt or refusal of receipt,
if delivered personally or by courier or confirmed telecopy, in each case
addressed to a party. The addresses for such communications shall be:
Investor: At the address designated on the signature page of this
Subscription Agreement.
The Company: XxxxXxxxxx.xxx, Inc.
000 Xxxx Xxxxxx, X.X. Xxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. XxXxxxxx, III, Chief Executive Officer
Fax: (202)
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In either case, with copies to:
Xxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxx Xxxxxx
Fax: (000) 000-0000
or to such other address as any of them, by notice to the others may designate
from time to time.
15. Oral Evidence. This Subscription Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior oral and written agreements between the parties hereto with
respect to the subject matter hereof. This Subscription Agreement may not be
changed, waived, discharged, or terminated orally but, rather, only by a
statement in writing signed by the party or parties against which enforcement or
the change, waiver, discharge or termination is sought.
16. Section Headings. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part, any of the terms or
provisions of this Subscription Agreement.
17. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements contained herein shall survive the
delivery of, and the payment for, the Common Stock.
18. Acceptance of Subscription. The Company may accept this Subscription
Agreement at any time for all or any portion of the Common Stock subscribed for
by executing a copy hereof as provided and notifying me within a reasonable time
thereafter.
Residents of All States: In making an investment decision, investors must
rely on their own examination of the Company and the terms of the offering,
including the merits and risks involved. The shares of Common Stock offered
hereby have not been registered under the Securities Act, as amended, or the
securities laws of any state and are being offered and sold in reliance on
exemptions from the registration requirements of said Act and such laws. The
Common Stock is subject to restriction on transferability and resale and may not
be transferred or resold except as permitted under said Act and such laws
pursuant to registration or exemption therefrom. Investors should be aware that
they will be required to bear the financial risks of this investment for an
indefinite period of time. The Common Stock has not been approved or disapproved
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by the Securities and Exchange Commission, any state securities commission or
other regulatory authority, nor have any of the foregoing authorities passed
upon or endorsed the merits of the offering or the accuracy or adequacy of the
Term Sheet. Any representation to the contrary is unlawful.
FOR FLORIDA RESIDENTS: These securities have not been registered under the
Securities Act of 1933, as amended, or the Florida Securities Act, by reason of
specific exemptions thereunder relating to the limited availability of the
offering. These securities cannot be sold, transferred, or otherwise disposed of
to any person or entity unless subsequently registered under the Securities Act
of 1933, as amended, or the Securities Act of this State, if such registration
is required.
Pursuant to Section 517.061(11) of the Florida Securities Act, when sales
are made to five (5) or more persons in Florida, any sale made pursuant to
Subsection 517.061(11) of the Florida Securities Act shall be voidable by such
Florida purchaser either within three days after the first tender of
consideration is made by the purchaser to the issuer, an agent of the issuer, or
an escrow agent, or within three days after the availability of the privilege is
communicated to such purchaser, whichever occurs later.
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Manner in Which Title is to be Held. (check one)
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____ Individual Ownership
____ Community Property
____ Joint Tenant with Right of Survivorship (both parties must sign)
____ Partnership
____ Tenants in Common
____ Corporation
____ Trust
____ Other (please indicate)
INDIVIDUAL INVESTORS ENTITY INVESTORS
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Signature (Individual) Name of Entity, If Any
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*Signature
Signature (all record holders should sign) Its: ________________________
Title
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Names Typed or Printed Names Typed or Printed
Address to Which Correspondence Address to Which Correspondence
Should be Directed Should be Directed
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City, State and Zip Code City, State and Zip Code
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Social Security Number Tax Identification Number
* If Common Stock is being subscribed for by any entity, the Certificate of
the Signatory on the next page must also be completed.
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The foregoing subscription is accepted and the Company hereby agrees to be bound
by its terms.
XXXXXXXXXX.XXX, INC.
Dated: , 2000 By:_________________________
------------------- Name:
Title:
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CERTIFICATE OF SIGNATORY
(To be completed if Common Stock is being subscribed for by an entity)
I, __________________________, the ________________________________
(name of signatory) (title)
of
-----------------------------------------------------------------------, a
(name of entity)
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(type of entity)
hereby certify that the above entity is duly empowered and authorized to
purchase the Common Stock and that I am duly empowered and authorized by the
entity to execute the Subscription Agreement on its behalf.
IN WITNESS WHEREOF, I have executed this Certificate this ____ day of
_________, 2000.
(Signature)
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