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Exhibit 4.8
JAWZ INC.
SUBSCRIPTION AGREEMENT made as of this 17th day of January, 2001
between JAWZ Inc., a corporation organized under the laws of the State of
Delaware with offices at 000, 000 - 0xx Xxxxxx XX, Xxxxxxx, XX Xxxxxx X0X 0X0
(the "Company") and Camborne Invest Inc., a corporation organized under the laws
of the British Virgin Islands (the "Subscriber").
WHEREAS, the Company desires to issue in a private placement (this
"Offering") up to 1,033,158 shares of common stock of the Company, par value
$0.001 per share (the "Common Stock"), such private placement to be made in
accordance with an exemption provided by Rule 506 of Regulation D from the
registration provisions of the Securities Act of 1933 (the "Act"), and from
exemptions from registration requirements provided by other securities
legislation which may be applicable to the Subscriber, on the terms and
conditions hereinafter set forth and the Subscriber desires to acquire the
Common Stock as set forth on the signature page hereof;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
I. SUBSCRIPTION FOR COMMON STOCK AND REPRESENTATIONS BY AND COVENANTS
OF SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth,
the Subscriber hereby subscribes for and agrees to purchase from the Company
1,033,158 shares of Common Stock at a price equal to $0.375 per share (for a
total purchase cost of $387,434.16), and the Company agrees to sell such Common
Stock to the Subscriber for said purchase price subject to the Company's right
to sell to the Subscriber such lesser number of shares of Common Stock as the
Company may, in its sole discretion, deem necessary or desirable. The purchase
price is payable by certified or bank check made payable to the Company or by
wire transfer of funds, contemporaneously with the execution and delivery of
this Subscription Agreement.
1.2 The Subscriber recognizes that the purchase of Common Stock
involves a high degree of risk in that (i) an investment in the Company is
highly speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company and the Common Stock; (ii)
it may not be able to liquidate its investment; (iii) transferability of the
securities comprising the Common Stock is extremely limited; and (iv) the
Subscriber could suffer the loss of its entire investment, as well as other risk
factors as more fully set forth herein and in the Company's filings (the "34 Act
Filings") with the United States Securities and Exchange Commission (the "SEC")
filed in accordance with the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1.3 The Subscriber represents and warrants that:
1.3.1 The Subscriber is an "accredited investor" as such
term is defined in Rule 501 of Regulation D
promulgated under the Act and that it is able to bear
the economic risk of an investment in the Common
Stock;
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1.3.2 The Subscriber is purchasing the Common Stock its own
account, for investment purposes and not for
distribution or resale to others;
1.3.3 The Subscriber is not a "distributor" as defined in
the Act. However, if the Subscriber should be deemed
to be a distributor prior to reselling the Common
Stock, the Subscriber will send a notice to each new
subscriber of the Common Stock, as the case may be,
that such new subscriber is subject to restrictions
on resale as the Subscriber;
1.3.4 The Subscriber understands and agrees that every sale
made by it must be made in compliance with the
provisions of Rule 144 promulgated under the Act
(expect the two-year holding period requirement),
including the filing of Form 144 with the SEC at the
time of the sale, as required under Rule 144; and
1.3.5 The Subscriber does not have a short position in the
Common Stock and will not have a short position in
such securities at any time prior to the expiration
of the restricted period.
1.4 The Subscriber acknowledges that it has prior investment
experience, including investment in non-listed and non-registered securities and
that it recognizes the highly speculative nature of this investment.
1.5 The Subscriber that it has reviewed the Company's 34 Act
Filings and it has been afforded the opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of the Company
concerning the terms and conditions of this Offering.
1.6 The Subscriber acknowledges that this Offering may involve
tax consequences. The Subscriber acknowledges that it must retain his own
professional advisors to evaluate the tax and other consequences of an
investment in the Common Stock.
1.7 The Subscriber acknowledges that this Offering has not been
reviewed by the SEC (or any other regulatory body) because of the Company's
representations that this is intended to be a nonpublic offering pursuant to
Sections 4(2) or 3(b) of the Act.
1.8 The Subscriber understands that Rule 144 (the "Rule")
promulgated under the Act requires, among other conditions, a one year holding
period prior to the resale (in limited amounts) of securities acquired in a
non-public offering without having to satisfy the registration requirements
under the Act. The Subscriber understands that the Company makes no
representation or warranty regarding its fulfillment in the future of any
reporting requirements under the Exchange Act, or its dissemination to the
public of any current financial or other information concerning the Company, as
is required by the Rule as one of the conditions of its availability. The
Subscriber understands and
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hereby acknowledges that the Company is under no obligation to register the
securities comprising the Common Stock under the Act, with the exception of
certain registration rights set forth in Article III herein. The Subscriber
consents that the Company may, if it desires, permit the transfer of the Common
Stock out of its name only when its request for transfer is accompanied by an
opinion of counsel reasonably satisfactory to the Company that neither the sale
nor the proposed transfer results in a violation of the Act or any applicable
state "blue sky" laws (collectively "Securities Laws").
1.9 The Subscriber consents to the placement of a legend on any
share certificate evidencing the Common Stock stating that the shares have not
been registered under the Act and setting forth or referring to the restrictions
on transferability and sale thereof.
1.10 The Subscriber acknowledges that if it is a NASD member
firm, it must give the notice required by the NASD's Rules of Fair Practice.
1.11 The Subscriber is a corporation, and represents and warrants
that: (i) it was not formed for the purpose of investing in the Company; (ii) it
is authorized and otherwise duly qualified to purchase and hold the Common
Stock; and (iii) that this Subscription Agreement has been duly and validly
authorized, executed and delivered constitutes the legal, binding and
enforceable obligation of the undersigned.
1.12 The Subscriber is a resident of Canada. As such, the
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the securities comprising the Common Stock or any use of this
Agreement, including (i) the legal requirements within its jurisdiction for the
purchase and resale of the Common Stock, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that may
need to be obtained, and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale or transfer of
the securities comprising the Common Stock. Such Subscriber's subscription and
payment for, and its continued ownership of the Common Stock, will not violate
any applicable securities or other laws of the Subscriber's jurisdiction.
II. REPRESENTATIONS BY THE COMPANY
2.1 The Company represents and warrants to the Subscriber that
prior to the consummation of this Offering and at the Closing Date:
(a) The Company is a corporation duly organized, existing
and in good standing under the laws of the State of Delaware and has the
corporate power to conduct the business which it conducts and proposes to
conduct.
(b) The execution, delivery and performance of this
Subscription Agreement by the Company will have been duly approved by the Board
of Directors of the Company and all other actions required to authorize and
effect the offer and sale of the Common Stock and the securities contained
therein will have been duly taken and approved.
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(c) The shares of Common Stock subscribed for have been duly
and validly authorized and when issued and paid for in accordance with the terms
hereof, will be duly and validly issued and fully paid and non-assessable.
III. REGISTRATION RIGHTS
3.1 Required Registration. The Company hereby agrees with the
Subscriber or its transferees (collectively, the "Holders") to include the
Common Stock in the registration statement to be filed with the SEC covering the
resale of the securities sold by the Company in this Offering on Form S-1 or
such other form as the Company desires, pursuant to the Act on or before
December 31, 2001, and to use its best efforts to cause such registration to
become effective as soon as practicable thereafter.
The Company shall pay the expenses described in Section 3.3 for the
registration statements filed pursuant to this Section 3.1, except for
underwriting discounts and commissions and legal fees of the Holders, which
shall be borne by the Holders.
3.2 Registration Procedures. If and whenever the Company is
required by the provisions of Section 3.1 to effect the registration of the
Common Stock offered hereby (the "Registrable Shares") under the Act, the
Company will:
(a) prepare and file with the SEC a registration statement
with respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective until the Registrable
Shares are freely tradable without the volume limitations of Rule 144;
(b) prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective until the
Registrable Shares are freely tradable without the volume limitations of Rule
144;
(c) furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities;
(d) use its best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such participating Holders may reasonably
request in writing within 20 days following the original filing of such
registration statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
(e) notify the Holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed;
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(f) notify the Placement Agent promptly of any request by
the SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the SEC, promptly upon the request
of any such Holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holders (and
concurred in by counsel for the Company), is required under the Act or the rules
and regulations thereunder in connection with the distribution of the
Registrable Shares by such Holders;
(h) prepare and promptly file with the SEC and promptly
notify such Holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading; and
(i) advise such Holders, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
3.3 Expenses.
(a) With respect to the registration required pursuant to
Section 3.1 hereof, all fees, costs and expenses of and incidental to such
registration, inclusion and public offering (as specified in paragraph (b)
below) in connection therewith shall be borne by the Company, provided, however,
that Holders participating in such registration shall bear their pro rata share
of the underwriting discount and commissions and transfer taxes.
(b) The fees, costs and expenses of registration to be borne
by the Company as provided in paragraph (a) above shall include, without
limitation, all registration, filing, and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified (except as provided in 3.3(a) above). Fees and
disbursements of counsel and accountants for the participating Holders and any
other expenses incurred by the participating Holders not expressly included
above shall be borne by the such Holders.
3.4 Indemnification.
(a) The Company will indemnify and hold harmless each Holder
of Registrable Shares which are included in a registration statement pursuant to
the provisions of Section 3.1 hereof,
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its directors and officers, and any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or such underwriter
within the meaning of the Act, from and against, and will reimburse such Holder
and each such underwriter and controlling person with respect to, any and all
loss, damage, liability, cost and expense to which such holder or any such
underwriter or controlling person may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expenses arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by or on behalf of such Holder,
its directors and officers, such underwriter or such controlling person in
writing specifically for use in the preparation thereof.
(b) Each Holder of Registrable Shares included in a registration
pursuant to the provisions of Section 3.1 hereof will indemnify and hold
harmless the Company, its directors and officers, any controlling person and any
underwriter from and against, and will reimburse the Company, its directors and
officers, any controlling person and any underwriter with respect to, any and
all loss, damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter may become subject under the Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was so made in conformity with written information furnished by
or on behalf of such Holder specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph (a) or (b) of this Section 3.4 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said paragraph
(a) or (b), promptly notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party,
provided, however, if the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnified party, or if there is a conflict of interest which would
prevent counsel for the indemnifying
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party from also representing the indemnified party, the indemnified party or
parties have the right to select separate counsel to participate in the defense
of such action on behalf of such indemnified party or parties. After notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of said paragraph (a) or (b) for
any legal or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the provisions of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice of the
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
IV. MISCELLANEOUS
4.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its registered office, 000, 000
- 0xx Xxxxxx XX, Xxxxxxx, XX Xxxxxx X0X 0X0, Attention: Chief Financial Officer
and to the Subscriber at its address indicated on the last page of this
Subscription Agreement. Notices shall be deemed to have been given on the date
of mailing, except notices of change of address and notices sent from outside
the continental United States, which shall be deemed to have been given when
received.
4.2 This Subscription Agreement shall not be changed, modified or
amended except by a writing signed by the parties to be charged, and this
Subscription Agreement may not be discharged except by performance in accordance
with its terms or by a writing signed by the party to be charged.
4.3 This Subscription Agreement shall be binding upon and inure
to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Subscription Agreement sets forth
the entire agreement and understanding between the parties as to the subject
matter thereof and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
4.4 Notwithstanding the place where this Subscription Agreement
may be executed by any of the parties hereto, the parties expressly agree that
all the terms and provisions hereof shall be construed in accordance with and
governed by the laws of the Province of Ontario, Canada. The parties hereby
agree that any dispute which may arise between them arising out of or in
connection with this Subscription Agreement shall be adjudicated before a court
located in Xxxxxxx, Xxxxxxx, Xxxxxx and they hereby submit to the exclusive
jurisdiction of the courts of the Province of Ontario located in the City of
Toronto, Ontario 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 such 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 securities hereunder, and consent to the service of process in
any such action or legal proceeding
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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 other.
4.5 This Subscription Agreement may be executed in counterparts.
Upon the execution and delivery of this Subscription Agreement by the
Subscriber, this Subscription Agreement shall become a binding obligation of the
Subscriber with respect to the purchase of Common Stock as herein provided;
subject, however, to the right hereby reserved to the Company to enter into the
same agreements with other subscribers and to add and/or to delete other persons
as subscribers.
4.6 The holding of any provision of this Subscription Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Subscription Agreement, which shall remain in
full force and effect.
4.7 It is agreed that a waiver by either party of a breach of any
provision of this Subscription Agreement shall not operate, or be construed, as
a waiver of any subsequent breach by that same party.
4.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
4.9 The Company agrees not to disclose the name, address or any
other information about the Subscriber, except as required by law, provided,
that the Company may use information relating to the Subscriber in any
registration statement under the Act with respect to the Warrant Shares.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the day and year first written above.
Camborne Invest Inc.
By:
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Name:
Title:
c/o Elixir Ltd./Optima International Trust
Company Ltd.
3076 Xxx Xxxxxxx Xxxxxx Hwy.
Roadtown, Tortola
BVI
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Social Security or Taxpayer Identification
Number of Subscriber
US$ 387,434.16
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Dollar Amount of Common Stock Subscribed For
1,033,158
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Number of Shares of Common Stock Subscribed For
Subscription Accepted:
JAWZ INC.
By:
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Name:
Title:
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