Exhibit 10.06
Exhibit 10.06 Joint Subscription Agreement to Xxxxxxxx.xxx
Incorporated and Hot Caller Com Inc.
J O I N T S U B S C R I P T I O N A G R E E M E N T
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XXXXXXXX.xxx INCORPORATED
HOT XXXXXX.XXX INC.
DATED:______________________
XXXXXXXX.xxx INCORPORATED
HOT XXXXXX.XXX INC.
000 Xxxxxxxxx Xxxxxxxx
Xxxxx 0
Xxxxxxx X0X 0X0 Xxxxxxx, Xxxxxx US$_________________________
(Amount of Notes Subscribed)
Gentlemen:
1. Subscription. I, the undersigned individual or entity
("Subscriber"), hereby irrevocably subscribe as of the above date to purchase
(i) the above stated dollar amount of the 8% Unsecured Convertible Promissory
Notes Due July 31, 2000 ("Notes") of XXXXXXXX.xxx INCORPORATED, a Nevada
corporation ("Company"), together with (ii) certain stock purchase warrants
described in the following sentence, the subscription price being payable in
lawful monies of the United States of America. This subscription includes a
warrant (the "Warrants") entitling the holder thereof to purchase one (1) share
of the no-par value common stock of HOT XXXXXX.XXX INC., a corporation organized
under the Canadian Business Corporations Act ("Hot Caller") and wholly owned by
the Company, at a purchase price of CDN$2.00 per share (the "Warrant Shares"),
for each US$0.80 of Notes purchased. As an example, the purchase of US$10,000 of
Notes would carry Warrants to purchase 12,500 shares of Hot Caller at CDN $2.00
per share( 10,000 div by 0.80). The principal amount of, and all interest and
other charges accrued on, the Notes shall be convertible at any time or from
time to time into fully paid and non-assessable shares of the common stock,
US$.001 par value per share, of the Company at a price of US$0.80 per share (the
"Conversion Shares"). This joint subscription for Notes and Warrants is made in
accordance with and is subject to the terms of this Agreement and the Company's
Certificate of Incorporation and Bylaws, each as amended to date. The term
"Units" used herein refers to the Notes and Warrants subscribed for and
purchased and includes the Conversion Shares and Warrant Shares. Attached
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hereto as schedule "A", is the subscription agreement with respect to the
warrants, (the warrant agreement). The warrant agreement shall be read in
conjunction with the within joint subscription agreement.
2. Acceptance of Subscription. This subscription does not constitute an
offer by the Company to sell any Units to me, nor a solicitation of any offer
from me to buy Units, and shall be deemed accepted by the Company only when
countersigned by an executive officer of the Company. The Company may reject
this subscription, in whole or in part, for any reason in its sole discretion.
3. The Company's Representations, Warranties and Agreements. The
Company hereby represents and warrants to Subscriber and agrees with Subscriber
that:
(a) The Company is duly organized under the laws of the State
of Nevada, in good standing, duly authorized to carry on its current operations
where and in the manner currently conducted. The Company's common shares are
quoted on the OTC Bulletin Board under symbol "INNF," and are traded in the
over-the-counter market. Hot Caller is a newly organized company with limited
assets and no current operations that is privately held by the Company.
(b) The Company will promptly issue the Notes and Warrants
following acceptance of this subscription and receiving due payment, and shall
promptly issue the Conversion Shares upon due conversion of the Notes and issue
the Warrant Shares upon proper exercise of the Warrants. The Notes and Warrants,
and Conversion Shares and Warrant Shares, when issued to Subscriber against due
payment therefor or proper conversion, will be duly authorized, validly issued
and fully paid and non-assessable.
4. Subscriber's Representations, Warranties and Agreements. With full
knowledge that the Company and its officers, directors and controlling persons
will be relying upon the following, among other things, in determining whether a
sale of Units to me will be exempt from the registration requirements of the
U.S. Securities Act of 1933, as amended ("Act"), I represent and warrant to the
Company and agree with the Company that:
(a) I have received and carefully reviewed such information
provided to me in writing by the Company and Hot Caller, or information from
books and records of the Company, as I have requested in making a decision to
subscribe for the Units. I understand that additional information concerning the
Company and Hot Caller has been made available for inspection by me and my
attorney, accountant or other adviser, and that the books and records of the
Company and Hot Caller will be available, upon reasonable notice, for inspection
by subscribers during reasonable business hours at its above-stated place of
business. I and my advisers have had a reasonable opportunity to ask questions
of and receive answers from the Company, or a person or persons acting on its
behalf, concerning the offering of the Units, and all such questions have been
answered to my full satisfaction. No oral representations have been made or oral
information furnished to me or my adviser(s) in connection with the offering of
the Units which were in any way inconsistent with written information provided.
I acknowledge and agree that I have been furnished with substantially the same
information regarding the Company and Hot Caller and their respective current
(or in the case of Hot Caller, proposed) operations, assets, financial condition
and plan of operation as would be contained in a registration statement and
included prospectus prepared in connection with a public offering of the Units,
or that such information has been made freely available to me by the Company.
(b) I understand that the Notes and Conversion Shares have not
been registered under the Act but will be issued in reliance upon Regulation S
of the U.S. Securities and Exchange Commission, an exemption from the
registration requirements of the Act for sales of securities made solely
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outside the United States of America, which term includes its territories and
possessions ("USA") to persons who are not "U.S. Persons." I understand that the
Notes and Conversion Shares may not be offered or sold by me in the USA or to
any U.S. Person during the 1-year "distribution compliance period" following
completion of the offering of the Notes. I agree not to engage in any hedging
transactions during the distribution compliance period involving the Notes or
Conversion Shares except in compliance with the Act. I understand and agree that
a stop transfer order affecting the Notes shall be placed in the Company's
records, and a stop transfer order affecting the Conversion Shares shall be
placed with the Company's transfer agent, in each case preventing the transfer
thereof except as permitted by law.
(c) I have not been solicited to purchase the Units while
present in the USA, and I was outside the USA at the time of executing this
Agreement. The funds utilized for the purchase of the Units were not been
obtained from any U.S. Person.
(d) I am not a "U.S. Person", and I am purchasing the Units
for my own account and not on behalf of or for the account of any U.S. Person.
I, alone or together with my adviser(s), have such knowledge and experience in
financial, tax and business matters as to enable me to utilize the information
made available to me in order to evaluate the merits and risks of purchasing the
Units and to make an informed investment decision with respect thereto.
(e) I have not engaged in any act intended to precondition the
U.S. market for the resale of the Notes, Conversion Shares, Warrants or Warrant
Shares. I am not acting as a "distributor" of the Units or any components of the
Units. However, if I should be deemed to be a distributor prior to reselling the
Units to a non-U.S. Person during the restricted period, I will send a notice to
each new purchaser of the Units or component parts of the Units that he is
subject to the restrictions of Regulation S during the 1-year distribution
compliance period.
(f) I understand and agree that any and all instruments which
are issued representing the Notes shall, unless and until removed upon
registration under the Act or in accordance with applicable law, contain a
legend substantially in the following form:
"This promissory note and the common shares issuable
upon conversion have not been registered under the U.S. Securities Act
of 1933 ("Act") but have been offered and sold in reliance upon
Regulation S under the Act. Transfer of this note or such shares is
prohibited except in accordance with the provisions of Regulation S,
pursuant to registration under the Act, or pursuant to an exemption
from registration under the Act. Any hedging transactions involving
this note or the underlying common shares may not be conducted unless
in compliance with the Act."
(g) I understand and agree that any and all certificates which
may be issued representing Conversion Shares not already registered under the
Act prior to issuance upon Note conversion shall, unless and until removed upon
registration under the Act or in accordance with applicable law, contain a
legend substantially in the following form:
"These shares have not been registered under the U.S.
Securities Act of 1933 ("Act") but have been offered and sold in
reliance upon Regulation S under the Act. Transfer of these shares is
prohibited except in accordance with the provisions of Regulation S,
pursuant to
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registration under the Act, or pursuant to an exemption from
registration under the Act. Any hedging transactions involving these
shares may not be conducted unless in compliance with the Act."
(i) The Warrants and all certificates evidencing the Warrant
Shares shall bear such legends or restrictions as may be required by applicable
laws, rules or regulations of Canada or any province or other governmental unit
thereof. Subscriber agrees to the placement of all such legends and restrictions
on the Warrants and Warrant Share certificates and agrees to the placement of a
stop transfer order in the transfer records of Hot Caller preventing the
transfer of the Warrants and Warrant Shares except in accordance with law.
(j) If Subscriber is a corporation or other entity, Subscriber
has full power and authority to execute this Agreement, to make all
representations, warranties and covenants set forth herein and to acquire and
hold the Units, and has its principal office at the place set forth on the
signature page hereof. If Subscriber is an individual, Subscriber is at least 21
years of age and resides at the place set forth on the signature page hereof.
All information which Subscriber has provided to the Company is correct and
complete as of the date set forth above and, if there should be any adverse
change in such information prior to this subscription being accepted, Subscriber
will immediately provide the Company with such information.
(k) Subscriber has not been solicited by the Company or anyone
on its behalf by any form of general solicitation or general advertising,
including but not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or made available over telephone lines by any
information service, or (ii) any seminar or meeting whose attendees had been
invited by any means of general solicitation or general advertising.
4. Miscellaneous.
(a) I agree not to transfer or assign this Agreement, or any
of my interest herein, and further agree that any transfer or assignment of the
Units acquired pursuant hereto shall be made only in accordance with this
Agreement and all applicable laws. I agree that I may not cancel, terminate or
revoke this Agreement or any agreement made by me hereunder. This Agreement
constitutes the entire agreement between the parties hereto and may be amended
only by a writing executed by both parties. This Agreement shall be enforced,
governed and construed in all respects in accordance with the laws of the State
of Nevada.
(b) Notwithstanding any of the representations, warranties,
acknowledgements or agreements made herein by me, I do not thereby or in any
other manner waive any rights granted to me under applicable securities laws. I
stipulate and agree, however, that the operation of this Agreement will not
result in a waiver of such rights. All representations, warranties, covenants
and undertakings made by me in this Agreement shall survive the Company's
acceptance of this Agreement and the issuance and delivery of the Units.
(c) Wherever the pronouns he, his or him appear in this
Agreement, they shall include the feminine and neuter genders as well as the
masculine and apply equally to individual and entity subscribers, unless the
context clearly requires otherwise.
(d) Notices between the parties shall be effective only if in
writing and delivered: if to the Company, to the address on the first page
hereof; and if to me, to the address on the signature page hereof; or to any
subsequent address provided in writing by either party.
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(e) This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, administrators, executors,
legal representatives, successors and assigns. By executing this Agreement, I
represent that I have carefully read it in its entirety.
6. Payment for Units. The purchase price of the Units shall be paid in
United States dollars, by cash, personal or business check, bank or cashier's
check, or money order.
7. Definitions. The terms "distributor," "distribution compliance
period," "United States of America" and "U.S. Person" used in this Agreement
shall have the meanings given them in Rule 902 of Regulation S under the Act.
The term "affiliate" shall have the meaning given it in Rule 144(a) under the
Act.
8. Registration Rights. As promptly as practicable following the
purchase and payment for all of the Units, the Company shall cause a
registration statement on Form SB-2 or other appropriate form to be filed with
the U.S. Securities and Exchange Commission for the purpose of registering the
Conversion Shares under the Act for resale to the public. The holder or holders
of the Conversion Shares at the time of such registration ("Holder") shall have
the right pursuant to such registration to sell the Conversion Shares at
prevailing market prices in the over-the-counter market or on any exchange where
the Company's Common Shares then are listed, as the case may be, or in
negotiated transactions, all in accordance with the Act and other applicable
law. Each Holder shall, in connection with such registration, make such
representations and warranties to the Company and furnish such information as
the Company shall reasonably request.
No demand, request or other action by any Holder shall be necessary for
inclusion of his or her Conversion Shares in the registration, and such
inclusion shall be automatic. The Company shall use its best efforts to cause
such registration to become effective as soon as practicable. All expenses of
registering the Conversion Shares, other than selling expenses, shall be borne
by the Company. The Company shall furnish to the Holders such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Conversion Shares owned by them.
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Signature Page
In Witness Whereof, I have executed this Subscription Agreement and
initialled every preceding page hereof on the date first above written.
INDIVIDUAL SUBSCRIBERS ONLY:
(Not Corporations, Partnerships, Trusts or other entities)
Signature X.................................................................
Print Name (of all subscribers) _______________________________________________
Residence Address _____________________________________________________________
_________________________________________________ Fax No. ( ) -
----------------------------
Home Telephone No. ( ) - Work Telephone No. ( ) -
------- ------------- ------- --------
Social Security Number _______________________________________________________
(First listed person's number, if more than
person is subscribing)
COMPANY OR OTHER ENTITY SUBSCRIBERS ONLY:
Print Name of Subscriber (Company/Entity Name) _________________________________
Auth. Person's Signature X....................................................
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Authorized Person's Name & Title (Print) _____________________________________
Address of Principal Office ___________________________________________________
_______________________________________________________________________________
Organized under laws of State of _______________________________________________
Telephone ( ) - Fax No. ( ) -
------- ------------------- -------- ---------------------------
Federal Tax I.D. Number ________________________________________________________
Subscriber: Do Not Write Below This Line
Accepted: _______
X.......................................................
Signature
Rejected: _______ Name:__________________________________________
DATED: ____________________________ , 19___ Title:_____________________________
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