EXHIBIT 4.11
THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES REFERRED TO HEREIN.
SUBSCRIPTION AGREEMENT
Xxxxxxxx.xxx
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxx xxxxx
Xxxxxx Xxx Xxx, XX 00000
Re: Prospective Purchase of Notes and Warrants
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Xxxxxxxx.xxx, a California corporation
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Gentlemen:
The undersigned, by signing the Signature Page attached hereto, hereby
irrevocably tenders this subscription and applies to purchase 20 units (the
"Units") of Xxxxxxxx.xxx, a California corporation (the "Company"), at a
purchase price of $25,000 per Unit. Each Unit consists of a Promissory Note in
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the principal amount of $25,000 and warrants to purchase 2,500 shares of the
Company's Common Stock, no par value (the "Common Stock"), at an exercise price
of $3.30 per share.
Enclosed, in cash or good funds (in the case of a check, the check should
be payable to the order of "Xxxxxxxx.xxx") as tender of the purchase price for
the Units, is the aggregate amount of $500,000.00 ($25,000 minimum).
The undersigned hereby acknowledges receipt of a copy of the Company's
Annual Report on form 10-KSB for the period ending January 31, 1998 (the
"Report"), relating to and describing the terms and conditions of the offer and
sale of the Units.
The undersigned hereby represents and warrants to, and covenants with, the
Company as follows, recognizing that the Company will rely to a material degree
upon such representations, warranties and covenants, each of which shall survive
any acceptance of this subscription in whole or in part by the Company and the
issuance and sale of any Units to the undersigned:
1. All statements made in the Prospective Investor Questionnaire which
has been or is concurrently being furnished to the Company by the undersigned
continue to be and are true, accurate and complete as of the date hereof.
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2. The undersigned has been informed and is aware that an investment in
the Units involves a degree of risk and speculation, and has carefully read and
considered the Report in its entirety.
3. The undersigned confirms that he has been advised that he should rely
on, and that he has consulted and relied upon, his own accounting, legal and
financial advisors with respect to this investment in the Units. The
undersigned and his professional advisor(s) (as defined in Section 260.102.12(g)
of the Rules of the California Corporations Commissioner), if any, have been
afforded an opportunity to meet with the officers and directors of the Company
and to ask and receive answers to any questions about this offering and the
proposed business and affairs of the Company, and to obtain any additional
information which the Company possesses or can acquire without unreasonable
effort or expense that is necessary to verify the accuracy of information
provided in the Report, and have therefore obtained, in the judgement of the
undersigned and/or his or her professional advisor(s), sufficient information to
evaluate the merits and risks of investment in the Units. The undersigned
acknowledges and agrees that he/she has had an opportunity to meet and speak
with officers or representatives and to ask questions and get answers with
respect to the Company and this offering.
4. The undersigned understands and acknowledges that no federal or state
agency has made any finding or determination as to the fairness or suitability
for investment in, nor any recommendation or endorsement of, the Company or the
Units.
5. On the basis of the review of the materials and information described
above, and relying solely thereon and upon the knowledge and experience of the
undersigned and/or his or her professional advisor(s), if any, in business and
financial matters, the undersigned has evaluated the merits and risks of
investment in the Units and has determined that he or she is both willing and
able to undertake the economic risk of this investment.
6. The Units are being acquired by the undersigned for the personal
account of the undersigned for investment and not with a view to, or for resale
in connection with, any distribution thereof or of any interest therein, and no
one else has any beneficial ownership or interest in the Units being acquired by
the undersigned, nor are they to be subject to any lien or pledge. The
undersigned has no present obligation, indebtedness or commitment pending, nor
is any circumstance in existence which will compel the undersigned to secure
funds by the sale, transfer or other distribution of any of the Units or any
interest therein or any Stock that may be distributed in respect thereof.
7. The undersigned understands and agrees that the Units cannot be
transferred or assigned that there is and will be no public market therefor,
and, accordingly, that it may not be possible for the undersigned readily, if at
all, to liquidate this investment in the Units in case of an emergency or
otherwise. The undersigned has the net worth, past income and estimated future
income set forth in the Prospective Investor Questionnaire, can afford to bear
the risks of an investment in the Units, including the risk of losing the entire
investment, for an indefinite period of time, and has adequate means of
providing for his or her current needs and personal contingencies and has no
need for liquidity in this investment.
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8. The undersigned understands and acknowledges that the Units are being
offered and sold pursuant to one or more exemptions from the registration and
qualification requirements of the Securities Act of 1933 and the California
Corporate Securities Act of 1968, the availability of which depend upon the
truth and completeness of the information provided to the Company in the
Prospective Investor Questionnaire and the bona fide nature of the foregoing
representations and warranties. With such realization, the undersigned hereby
authorizes the Company to act as it may see fit in reliance on such information,
representations and warranties, including the placement of the following legend
on the stock certificate(s) issued to the undersigned in addition to any other
legends that may be imposed thereon which, in the reasonable opinion of
Company's counsel, may be required by applicable securities laws:
"THE UNITS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSIONS UNDER THE SECURITIES ACT OF 1933 OR WITH THE
CALIFORNIA DEPARTMENT OF CORPORATIONS UNDER THE CORPORATE SECURITIES LAW OF
1968, AS AMENDED. THE UNITS MAY NOT BE PLEDGED, SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS COVERING THE
UNITS OR AN OPINION OR QUALIFIED COUNSEL OR OTHER EVIDENCE SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
9. The undersigned hereby indemnifies and holds harmless the Company, and
its respective officers, directors, shareholders, employees and agents, as the
case may be, from and against any and all damages suffered and liabilities
incurred by any of them (including costs of investigation and defense and
attorneys' fees) arising out of any inaccuracy in the agreements,
representations, covenants and warranties made by the undersigned herein.
10. If the undersigned is purchasing the Units subscribed for hereby in a
fiduciary capacity, the above representations and warranties shall be deemed to
have been made on behalf of the person or persons for whom the undersigned is so
purchasing.
11. The undersigned hereby acknowledges and agrees that the undersigned is
not entitled to cancel, terminate or revoke this subscription or any agreements
of the undersigned hereunder and that such subscription and agreements shall
survive the death or disability of the undersigned.
12. The undersigned understands and acknowledges that this subscription
may be accepted or rejected by the Company in its sole discretion, together with
a completed and executed Prospective Investor Questionnaire and all information
required by the provisions hereof and payment of the full amount of the
subscription price for the Units subscribed for. Any amounts tendered in excess
of the total payable as the purchase price for Units as to which this
subscription has been accepted will thereafter be delivered to the undersigned
as soon as is practicable, all as described in the Confidential Private
Placement Memorandu. The Company shall signify its rejection by returning to
the undersigned this Subscription Agreement and all funds (without interest or
deduction) submitted by the undersigned.
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NEITHER THE COMPANY, NOR ANY OFFICER, DIRECTOR, SHAREHOLDER, EMPLOYEE OR
AGENT OF ANY OF THEM SHALL BE LIABLE TO ANY XXXXXXX FOR THE REJECTION, IN WHOLE
OR IN PART, OF ANY OFFER TO SUBSCRME TO PURCHASE UNITS, NOTWITHSTANDING THAT THE
UNDERSIGNED MAY OTHERWISE BE QUALEFIED AS A PROSPECTIVE INVESTOR.
13. If, prior to the sale of any Units to the undersigned, there is a
material change in die undersigned's investment intention as expressed herein,
or if there occurs any change which would make either the representations or
warranties made by the undersigned herein or the information provided by the
undersigned in the Prospective Investor Questionnaire materially untrue or
misleading, the undersigned agrees to immediately so notify the Company, and any
prior acceptance of the subscription of the undersigned shall be voidable at the
option of the Company.
IN WITNESS WHEREOF, the undersigned executes and agrees to be bound by this
Subscription Agreement by executing the Signature Page attached hereto on the
date therein indicated.
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SIGNATURE PAGE
(All information must be completed)
Date: August 20, 1998
/s/ Xxxxxx Xxxxxxx $500,000 50,000 $500,000
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Signature of Purchaser Purchase Price # of Warrants Total $ Investment
Xxxxxxx Xxxxxx & Co., Inc.
FBO Xxxxxx Xxxxxxx Xxxxx Plan 1463-1994
__________________________________ ----------------------------------------
Signature of Joint Owner (if any) Name(s) of Purchaser (Print)
If Joint Ownership, check one: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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_____ Joint Tenants, with Address:
Right of Survivorship
_____ Tenants in Common
_____ Community Property 022-448-4484
Social Security No. or Taxpayer I.D. No.
ACCEPTED AND AGREED:
XXXXXXXX.XXX
By /s/Xxxxx Xxxxx
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Date: 11-5-98
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