Exhibit 10.21
SUBSCRIPTION AGREEMENT
_______________, 2002
AESP, Inc.
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Gentlemen:
1. The undersigned hereby subscribes for the number of shares of Common
Stock, $.001 par value per share (the "Shares") of AESP, Inc. (f/k/a Advanced
Electronic Support Products, Inc.), a Florida corporation (the "Company"), set
forth on the signature page hereto. The offering price for the Shares is US
$1.00 per Share and a minimum investment of Ten Thousand Dollars ($10,000) is
required, which minimum may be waived in the sole discretion of the Company. No
fractional shares will be offered and sold hereunder. The Company is offering
(the "Offering") the Shares subject to the terms and conditions described in the
Offering Documents, to which this Subscription Agreement is attached.
The undersigned agrees that this subscription is and shall be
irrevocable (except as provided by law or the terms hereof), however the
undersigned's obligations hereunder shall terminate if this subscription is not
accepted by the Company.
The undersigned understands that the Company will notify the
undersigned as to whether this subscription has been accepted or rejected.
Subscriptions may be accepted or rejected by the Company in its sole discretion.
The Shares are being offered by the Company on a "best efforts" basis; provided,
however, that this Offering may be terminated at any time by the Company,
irrespective of the amount of Shares subscribed for and irrespective of the
amount of gross proceeds so raised. If rejected, the checks tendered by the
undersigned or the amount of money represented thereby will be returned to the
undersigned forthwith and without interest or deduction. Any interest earned by
the Company pending either termination or consummation of the Offering, will be
used by the Company to offset the expenses of this Offering. The Shares are
being offered by the Company on a "best efforts" basis, and the Company,
provided however, that this Offering may be terminated at any time by the
Company, irrespective of the amount of Shares subscribed for and irrespective of
the amount of gross proceeds so raised. The Company may, in its sole discretion,
reject any offer to purchase Shares in the Offering from any Investor or may
limit the number of Shares to be purchased by any such Investor.
An investment hereunder is suitable only for persons who have adequate
means of providing for their current needs and personal contingencies and have
no need for liquidity in their investment. The Shares are only being offered
hereunder to those persons who represent that they can bear the complete
economic loss of their investment in the Company. The Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being offered in reliance upon an exemption from the registration requirements
thereunder, and in a manner that is intended to comply with the requirements of
Section 4(2) of the Act and Rule 506 of Regulation D, promulgated thereunder.
Offers and sales of the Shares hereunder will be made only to persons
who satisfy the conditions set forth herein and in the Offering Documents, and
who also represent in writing to the Company that, in connection with evaluating
the merits and risks of an investment in the Company, they have such knowledge
and experience in financial and business matters generally, that they are
capable of evaluating the merits and risks of an investment in the Company.
THE MERITS OF THESE SECURITIES HAVE NOT BEEN PASSED UPON BY ANY FEDERAL
OR STATE SECURITIES COMMISSION OR REGULATORY OR GOVERNMENTAL AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT REVIEWED, NOR CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THE OFFERING DOCUMENTS.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE OFFERING DOCUMENTS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE RELIED UPON.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE OFFERING DOCUMENTS HAVE BEEN PREPARED IN THE ENGLISH LANGUAGE AND
NO AUTHORIZED TRANSLATION HAS BEEN MADE. ALL INVESTORS BY SUBSCRIBING FOR THE
SECURITIES MUST AGREE THAT THEY ARE FULLY CONVERSANT IN THE ENGLISH LANGUAGE TO
MAKE AN INFORMED DECISION REGARDING ANY SUCH INVESTMENT IN THE COMPANY.
THE DELIVERY OF THE OFFERING DOCUMENTS SHALL NOT UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF.
The Shares duly subscribed for and paid for hereunder will be issued
upon acceptance of the subscriptions by the Company.
2. The undersigned investor ("Investor") represents, warrants and
acknowledges that:
(a) There are substantial risks involved in investing in the
Company, as set forth in the Offering Documents;
(b) No federal or state agency has passed upon the securities
offered herein or made any finding or determination as to the fairness of this
investment;
(c) Investor should only invest in the Company dependent upon
Investor's particular circumstances. The information contained herein is not
complete, no private placement memorandum has been prepared other than the
Offering Documents, consisting of the
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description of the Company, its business and the Offering, and the subscription
documents, of which this Subscription Agreement is a part. An Investor should
confer with and rely on Investor's own investment and tax advisors as to the
substantial risks inherent in an investment herein. The Company and its
representatives make no representation or warranties with respect to the Company
except as specifically set forth herein;
(d) The Company will provide Investor with the opportunity to
meet and confer with the Company regarding all aspects of the Company and its
business, and will afford Investor the opportunity to obtain any additional
information, concerning the Company, to the extent that the Company possesses
such information or can acquire it without unreasonable effort or expense; and
(e) Investor hereby represents, warrants, and acknowledges
that the undersigned is fully aware and understands completely the business of
the Company and its financial condition, as described herein.
3. Investor agrees that this subscription is and shall be irrevocable,
however Investor's obligations hereunder will terminate if this subscription is
not accepted by the Company, in its sole discretion. This subscription, upon
acceptance by the Company, shall be binding upon the heirs, executors,
administrators, successors and assigns of the undersigned. This Subscription
Agreement shall be construed in accordance with and governed in all respects by
the laws of the State of Florida without application of the principles of
conflicts of laws.
4. The Company agrees that it will:
(a) File a registration statement (the "Registration
Statement") to register all Registered Securities (as defined herein below)
purchased by the holders thereof (the "Holders") with the Securities and
Exchange Commission (the "Commission") on an appropriate form available for the
sale of the Registered Securities by the undersigned from time to time in the
Nasdaq Small-Cap Market, in privately negotiated transactions or in a
combination of such methods, within 45 days (the "Target Filing Date") following
the date of the final closing of this Offering ("Final Closing Date"), and to
thereafter use its best efforts to cause such Registration Statement to become
effective under the Act. If the Registration Statement is not filed by the
Target Filing Date, then the Company will pay as liquidated damages to each
Investor in the Offering one Share for every 20 Shares purchased in the
Offering. Additionally, if the Registration Statement does not become effective
within 120 days following the Target Filing Date, then the Company will pay as
liquidated damages to each investor in the Offering one Share for every 20
Shares purchased in the Offering.
(b) Prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
all of the Registered Securities have been sold pursuant thereto, but not for a
period greater than one year from the Final Closing Date (the "Registration
Period"), and to comply with the provisions of the Act and the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "Exchange Act"), with respect to the disposition of all of
the Registered Securities.
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(c) Notify the Holders after becoming aware that (i) the
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; or (ii) the Commission has requested an amendment of
or supplement to the Registration Statement or related prospectus or additional
information.
(d) Furnish promptly to the Holders such numbers of copies of
the Company's prospectus, including a preliminary prospectus, and all amendments
and supplements thereto, in conformity with the requirements of the Act, and
such other documents as the Holders may reasonably request in order to
facilitate the disposition of any of the Registered Securities.
(e) Use its best efforts to register and qualify the
Registered Securities under such other securities or Blue Sky laws of such
states as shall be reasonably requested by the Holders, and prepare and file in
those states such amendments (including post-effective amendments) and
supplements and to take such other actions as may be necessary to maintain such
registration and qualification in effect at all times during the Registration
Period, and to take all other actions necessary or advisable to enable the
disposition of the Registered Securities in such states, PROVIDED that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states.
(f) Notify the Holders, at any time when a prospectus relating
to Registered Securities covered by the Registration Statement is required to be
delivered under the Act, of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state 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. The
Company shall promptly amend or supplement the Registration Statement to correct
any such untrue statement or omission, and provide the Holders with an amended
or supplemented prospectus with respect to the Registered Securities that
corrects such untrue statement or omission.
(g) Notify the Holders of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any
registration statement covering securities of the Company or the initiation of
any proceedings for that purpose or of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registered Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any stop order and, if a stop order is issued, to obtain the
lifting thereof at the earliest possible time,
(h) Take all other reasonable actions necessary to expedite
and facilitate disposition by the Holders of the Registered Securities pursuant
to the Registration Statement.
(i) Pay all expenses in connection with the filing of the
Registration Statement. The Company's expenses shall include, without
limitation, expenses for the registration, filing or qualification of the
Registered Securities and all registration, listing, filing
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and qualification fees, printers fees, accounting fees and the fees and
disbursements of counsel for the Company. The Holders' expenses, which shall not
be the responsibility of the Company, shall include, without limitation,
underwriting discounts and commissions, Holders expenses relating to the
offering and the fees and expenses of the Holders' counsel.
(j) To the fullest extent permitted by law, the Company will
indemnify each Holder of Registered Securities being sold by any such Holder
pursuant to this paragraph (and any person who controls such Holder within the
meaning of Section 15 of the Act) against all claims, losses, damages,
liabilities and expenses under the Act, the Exchange Act, or other Federal or
state statutory laws or regulations, at common law or otherwise, insofar as such
losses, claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of material fact contained in any registration statement filed
pursuant to this paragraph, or in any amendment thereof, or in any preliminary
prospectus or prospectus relating thereto, or in any amendment thereof or
supplement thereto or any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Company shall not be liable to any such Holder in respect of
any claims, losses, damages, liabilities or expenses resulting from any untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
specifically for use in connection with such registration statement and
prospectus and each such Holder will indemnify, to the fullest extent permitted
by law, the Company, each person, if any, who controls the Company within the
meaning of said Section 15 of the Act, each director of the Company and each
officer of the Company who signs the Registration Statement against claims,
losses, damages, liabilities and expenses which they may incur by reason of any
such untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information
furnished to the Company by such Holder specifically for use in connection with
such Registration Statement and prospectus.
(k) For purposes of this Section 4, the term "Registered
Securities" means (i) the Shares and (ii) the shares of Common Stock issuable
upon exercise of the Warrants issued to any selling agent, if any, used by the
Company in the Offering.
(l) It shall be a condition precedent to the obligations of
the Company under this Section 4 to take any action pursuant to this Agreement
with respect to each Holder that such Holder shall furnish to the Company such
information regarding itself, the Registered Securities held by it and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registered Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.
(m) With a view to making available to Holders the benefits of
Rule 144 ("Rule 144") under the Act and any other rule or regulation of the
Commission that may at any time permit Holders to sell securities of the Company
to the public without registration, the Company agrees to use its best efforts
to:
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(1) make and keep public information available, as
those terms are understood and defined in Rule 144, at all times after 90 days
after the effective date of the Registration Statement; and
(2) file with the Commission in a timely manner all
reports and other documents required of the Company under the Act and the
Exchange Act.
Very truly yours,
Dated: ___________, 2002
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Signature
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Name
Number of Shares subscribed for: --------------------------
Amount of check enclosed: $
--------------------------
(payable to "Akerman Senterfitt f/b/o AESP, Inc.")
AGREED TO AND ACCEPTED:
AESP, INC.
By:
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Name:
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Title:
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SPECIAL EXECUTION PAGE FOR SUBSCRIPTION BY AN ENTITY
(Not applicable to subscriptions by individuals)
IN WITNESS WHEREOF, subject to acceptance by the Company, the
undersigned has completed this Subscription Agreement to evidence its
subscription AESP, Inc., on this _____ day of __________, 2002.
Number of Shares subscribed for:
---------------------------
Amount of check enclosed: $
--------------------------
(payable to "Akerman Senterfitt f/b/o AESP, Inc.")
_____ TRUST -- (Please include copy of trust agreement)
_____ CORPORATION --(Attach certified corporate resolution authorizing
signature and a copy of the articles of incorporation)
_____ PARTNERSHIP --(Attach copy of the partnership agreement)
(Please print the following information exactly as you wish it to appear on the
Company's records.)
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(Name of Subscriber)
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(Address)
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(Tax Identification Number)
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(Telephone)
The undersigned trustee, partner or corporate officer certifies that
the undersigned has full power and authority from the beneficiaries, partners or
directors of the entity named below to execute this Subscription Agreement on
behalf of the entity and to make the representations and warranties made herein
on its behalf and that an investment in the Company has been affirmatively
authorized by the governing board of such entity and is not prohibited by the
governing documents of the entity.
Dated: , 2002
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(Print Name of Entity)
By:
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(Signature of authorized trustee,
partner, or corporate officer)
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(Print Name and Capacity)
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