Contract
THIS
AGREEMENT RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION TO
PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")) PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT. NONE OF THE SECURITIES TO WHICH THIS
AGREEMENT RELATES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY U.S.
STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED
HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
EACH
CASE ONLY IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS. IN ADDITION,
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
ACCORDANCE WITH THE SECURITIES ACT.
MALIBU
MINERALS, INC.
SUBSCRIPTION
AGREEMENT (this “Agreement”) made as of this 29th
day of
December 2006 between Malibu Minerals, Inc., a Nevada corporation, (the
“Company”), and the undersigned (the “Subscriber”).
WHEREAS,
the Company is offering shares
(the “Shares” or “Securities”) of the Company’s common stock, $0.001 par value
(the “Common Stock”), to be sold in connection with the proposed private
placement (the "Private Placement") on a “best efforts” basis for a maximum
offering of up to $1,650,000 in Shares (“Maximum Offering”) at $0.70 per share,
for up to an aggregate total of 2,357,150 Shares;
WHEREAS,
the Company intends to offer the Shares through the services of its officers,
directors and agents;
WHEREAS,
the offering period (the “PPO
Period”)
for
the Private Placement shall commence on the day the Offering Documents, as
defined below, are first made available by the Company for delivery in
connection with the PPO, which is expected to be on or about December 12, 2006
(the “Delivery
Date”
or
the
“Commencement
Date”)
and
shall continue until the earlier to occur of: (i) the sale of all of the Shares,
or (ii) close of business on January 31, 2007 (which date may be extended for
up
to an additional 30 days at the sole discretion of the Company);
and
WHEREAS,
the Subscriber desires to purchase Shares in the amount set forth on the
signature page hereof on the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the premises and the mutual representations
and
covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
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I.
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SUBSCRIPTION
FOR SECURITIES; REPRESENTATIONS BY AND COVENANTS OF
SUBSCRIBER
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1.1 Subscription
for Securities.
Subject
to the terms and conditions hereinafter set forth and in the Confidential
Private Placement Memorandum dated December 12, 2006 (such memorandum, together
with all amendments thereof and supplements and exhibits thereto, the
“Memorandum”), the Subscriber hereby irrevocably subscribes for and agrees to
purchase from, and the Company agrees to sell to the Subscriber, such number
of
Shares which is set forth on the signature page hereof. The entire purchase
price is due and payable upon the submission of this Subscription Agreement,
and
shall be payable by wire transfer or check subject to collection, to the order
of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, as Escrow Agent. The wire transfer
instructions are as follows:
BANK:
HSBC
Bank
USA
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
A/C
of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, XXXX
ABA:
ACCOUNT:
REFERENCE:
“Malibu
Minerals, Inc. - [insert Subscriber’s name]”
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP Accounting Contact: Xxxx Xxxxx; telephone: (000)
000-0000; email: xxxxxx@xxxx.xxx.
1.2 Reliance
on Exemptions.
The
Subscriber acknowledges that the Offering has not been reviewed by the United
States Securities and Exchange Commission (the “SEC”) or any state agency
because it is intended to be an offshore transaction pursuant to Regulation
S
(“Regulation S”) as promulgated by the SEC under the Securities Act of 1933, as
amended. The Subscriber understands that the Company is relying in part upon
the
truth and accuracy of, and the Subscriber’s compliance with the representations,
warranties, agreements, acknowledgments and understandings of the Subscriber
set
forth herein in order to determine the availability of such exemptions and
the
eligibility of the Subscriber to acquire the Securities.
1.3 Offshore
Transaction.
The
Subscriber agrees that it is acquiring the Securities in an offshore transaction
pursuant to Regulation S, promulgated under the Securities Act, and hereby
represents to the Company as follows:
(a) Subscriber
is outside the United States when receiving and executing this Subscription
Agreement; and
2
(b) Subscriber
has not acquired the Securities as a result of, and will not itself engage
in,
any “directed selling efforts” (as defined in Regulation S under the Securities
Act) in the United States in respect of the Securities which would include
any
activities undertaken for the purpose of, or that could reasonably be expected
to have the effect of, conditioning the market in the United States for the
resale of the Securities; provided, however, that the Subscriber may sell or
otherwise dispose of the Securities pursuant to registration of the Securities
under the Securities Act and any applicable state and provincial securities
laws
or under an exemption from such registration requirements and as otherwise
provided herein;
1.4 Rejection
of Subscriptions. This
offering is made subject to withdrawal, cancellation or modification by the
Company. The Company reserves the right to reject any subscription in whole
or
in part or to allot to any prospective Subscriber fewer than the number of
Shares subscribed for by such Subscriber. Shares will be sold only to a limited
number of Subscribers meeting certain standards.
1.5 Compliance
with U.S. Securities Laws.
The
Subscriber agrees that the Company will refuse to register any transfer of
the
Securities not made in accordance with the provisions of Regulation S, pursuant
to an effective registration statement under the Securities Act, or pursuant
to
an available exemption from the registration requirements of the Securities
Act
and in accordance with applicable state and provincial securities
laws.
1.6 Distribution
Compliance Period.
The
Subscriber understands and agrees that offers and sales of any of the Securities
prior to the expiration of a period of one year after the date of transfer
of
the Securities under this Subscription Agreement (the “Distribution Compliance
Period”), shall only be made in compliance with the safe harbor provisions set
forth in Regulation S, pursuant to the registration provisions of the Securities
Act or an exemption therefrom, and that all offers and sales after the
Distribution Compliance Period shall be made only in compliance with the
registration provisions of the Securities Act or an exemption therefrom, and
in
each case only in accordance with all applicable securities laws.
1.7 Hedging
Transactions.
The
Subscriber understands and agrees not to engage in any hedging transactions
involving the Securities prior to the end of the Distribution Compliance Period
unless such transactions are in compliance with the Securities Act.
1.8
Legends.
The
Subscriber understands that the certificates representing the Securities, until
such time as they have been registered under the Securities Act, shall bear
a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such certificates or other
instruments):
THESE
SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). ACCORDINGLY, NONE OF THE
SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE
1933
ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY
BE
OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS
(AS DEFINED HEREIN) EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE
1933
ACT.
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The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which
it is
stamped, if (a) such Securities are being sold pursuant to a registration
statement under the Securities Act, or (b) such holder delivers to the Company
an opinion of counsel, in a reasonably acceptable form, to the Company that
a
disposition of the Securities is being made pursuant to an exemption from such
registration.
1.9 Risk
of Investment.
The
Subscriber recognizes that the purchase of the Securities involves a high degree
of risk in that: (a) 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 Securities; (b) transferability of the
Securities is limited; and (c) the Company may require substantial additional
funds to operate its business and subsequent equity financings will dilute
the
ownership and voting interests of Subscriber.
1.10 Information.
The
Subscriber acknowledges careful review of this Subscription Agreement as well
as
the Company’s filings with the Securities and Exchange Commission, as required
pursuant to the Securities and Exchange Act of 1934, which are available on
the
Internet at xxx.xxx.xxx
(collectively, the “Offering Documents”), all of which the undersigned
acknowledges have been provided to the undersigned. The undersigned has been
given the opportunity to ask questions of, and receive answers from, the Company
concerning the terms and conditions of this Offering and the Offering Documents
and to obtain such additional information, to the extent the Company possesses
such information or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of same as the undersigned reasonably desires
in order to evaluate the investment. The undersigned understands the Offering
Documents, and the undersigned has had the opportunity to discuss any questions
regarding any of the Offering Documents with its counsel or other advisor.
Notwithstanding the foregoing, the only information upon which the undersigned
has relied is that set forth in the Offering Documents. The undersigned has
received no representations or warranties from the Company, its employees,
agents or attorneys in making this investment decision other than as set forth
in the Offering Documents. The undersigned does not desire to receive any
further information.
1.11 No
Representations.
The
Subscriber hereby represents that, except as expressly set forth in the Offering
Documents, no representations or warranties have been made to the Subscriber
by
the Company or any agent, employee or affiliate of the Company, and in entering
into this transaction the Subscriber is not relying on any information other
than that contained in the Offering Documents and the results of independent
investigation by the Subscriber.
4
1.12 Tax
Consequences.
The
Subscriber acknowledges that the Offering may involve tax consequences and
that
the contents of the Offering Documents do not contain tax advice or information.
The Subscriber acknowledges that it must retain its own professional advisors
to
evaluate the tax and other consequences of an investment in the
Securities.
1.13 Transfer
or Resale.
The
Subscriber understands and hereby acknowledges that the Company is under no
obligation to register the Securities under the Securities Act except as
contained herein. The Subscriber consents that the Company may, if it desires,
permit the transfer of the Securities out of the Subscriber’s name only when the
Subscriber’s 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 Securities Act or any applicable state
“blue sky” laws.
1.14 Validity;
Enforcement.
If the
Subscriber is a corporation, partnership, trust or other entity, the Subscriber
represents and warrants that: (a) it is authorized and otherwise duly qualified
to purchase and hold the Securities; and (b) that this Subscription Agreement
has been duly and validly authorized, executed and delivered and constitutes
the
legal, binding and enforceable obligation of the undersigned. If the Subscriber
is an individual, the Subscriber represents and warrants that this Subscription
Agreement has been duly and validly executed and delivered and constitutes
the
legal, binding and enforceable obligation of the undersigned.
1.15 Address.
The
Subscriber hereby represents that the address of the Subscriber furnished by
the
Subscriber at the end of this Subscription Agreement is the undersigned’s
principal residence if the Subscriber is an individual or its principal business
address if it is a corporation or other entity.
1.16 Foreign
Subscriber.
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 or any use of this Subscription Agreement,
including: (a) the legal requirements within its jurisdiction for the purchase
of the Securities; (b) any foreign exchange restrictions applicable to such
purchase; (c) any governmental or other consents that may need to be obtained;
and (d) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of the Securities. Such
Subscriber’s subscription and payment for, and its continued beneficial
ownership of the Securities, will not violate any applicable securities or
other
laws of the Subscriber’s jurisdiction.
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II.
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REPRESENTATIONS
BY THE COMPANY
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The
Company represents and warrants to the Subscriber, except as set forth in the
disclosure schedules attached hereto:
2.1 Organization,
Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and has full corporate power and authority
to conduct its business.
5
2.2 Capitalization
and Voting Rights.
The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Company’s Registration Statement filed with the SEC on Form SB-1 on
August 4, 2006, and all issued and outstanding shares of the Company are validly
issued, fully paid and nonassessable. Except as set forth in the Offering
Documents and the Company’s SEC filings, there are no outstanding options,
warrants, agreements, convertible securities, preemptive rights or other rights
to subscribe for or to purchase any shares of capital stock of the Company.
Except as set forth in the Offering Documents and the Company’s SEC filings, and
as otherwise required by law, there are no restrictions upon the voting or
transfer of any of the shares of capital stock of the Company pursuant to the
Company’s Articles of Incorporation (the “Articles of Incorporation”), By-Laws
or other governing documents or any agreement or other instruments to which
the
Company is a party or by which the Company is bound.
2.3 Authorization;
Enforceability. The
Company has all corporate right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. All corporate
action on the part of the Company, its directors and stockholders necessary
for
the (i) authorization execution, delivery and performance of this Agreement
by
the Company; and (ii) authorization, sale, issuance and delivery of the
Securities contemplated hereby and the performance of the Company’s obligations
hereunder has been taken. This Agreement has been duly executed and delivered
by
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief
or
other equitable remedies, and to limitations of public policy. The Common Stock,
when issued and fully paid for in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable. The issuance and sale
of
the Shares of Common Stock contemplated hereby will not give rise to any
preemptive rights or rights of first refusal on behalf of any person which
have
not been waived in connection with this offering.
2.4 No
Conflict; Governmental Consents.
(a) The
execution and delivery by the Company of this Agreement and the consummation
of
the transactions contemplated hereby will not result in the violation of any
material law, statute, rule, regulation, order, writ, injunction, judgment
or
decree of any court or governmental authority to or by which the Company is
bound, or of any provision of the Articles of Incorporation or By-Laws of the
Company, and will not conflict with, or result in a material breach or violation
of, any of the terms or provisions of, or constitute (with due notice or lapse
of time or both) a default under, any lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which the Company
is a party or by which it is bound or to which any of its properties or assets
is subject, nor result in the creation or imposition of any lien upon any of
the
properties or assets of the Company.
6
(b) No
consent, approval, authorization or other order of any governmental authority
is
required to be obtained by the Company in connection with the authorization,
execution and delivery of this Agreement or with the authorization, issue and
sale of the Shares, except such filings as may be required to be made with
the
SEC, NASD, NASDAQ and with any state or foreign blue sky or securities
regulatory authority.
2.5 Licenses.
Except
as otherwise set forth in the Memorandum, the Company has sufficient licenses,
permits and other governmental authorizations currently required for the conduct
of its business or ownership of properties and is in all material respects
in
compliance therewith.
2.6 Litigation. Except
as
may be disclosed in the Offering Documents and the Company’s SEC filings, the
Company knows of no pending or threatened legal or governmental proceedings
against the Company which could materially adversely affect the business,
property, financial condition or operations of the Company or which materially
and adversely questions the validity of this Agreement or any agreements related
to the transactions contemplated hereby or the right of the Company to enter
into any of such agreements, or to consummate the transactions contemplated
hereby or thereby. The Company is not a party or subject to the provisions
of
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality which could materially adversely affect the business,
property, financial condition or operations of the Company. There is no action,
suit, proceeding or investigation by the Company currently pending in any court
or before any arbitrator or that the Company intends to initiate.
2.7 Disclosure.
The
information set forth in the Offering Documents as of the date hereof contains
no untrue statement of a material fact nor omits to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
2.8 Investment
Company.
The
Company is not an “investment company” within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of
the
SEC thereunder.
2.9 Intellectual
Property.
(a) To
the
best of its knowledge, the Company owns or possesses sufficient legal rights
to
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and other proprietary rights and processes necessary
for
its business as now conducted and as presently proposed to be conducted, without
any known infringement of the rights of others. Except as otherwise set forth
in
the Memorandum, there are no material outstanding options, licenses or
agreements of any kind relating to the foregoing proprietary rights, nor is
the
Company bound by or a party to any material options, licenses or agreements
of
any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes of any other person or entity other than such licenses or
agreements arising from the purchase of “off the shelf” or standard products.
The Company has not received any written communications alleging that the
Company has violated or, by conducting its business as presently proposed to
be
conducted, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity.
7
(b) Except
as
otherwise set forth in the Memorandum, the Company is not aware that any of
its
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere
with
their duties to the Company or that would conflict with the Company’s business
as presently conducted.
(c) Neither
the execution nor delivery of this Agreement, nor the carrying on of the
Company’s business by the employees of the Company, nor the conduct of the
Company’s business as presently conducted, will, to the Company’s knowledge,
conflict with or result in a breach of the terms, conditions or provisions
of,
or constitute a default under, any contract, covenant or instrument under which
any employee is now obligated.
(d) To
the
best of the Company’s knowledge, no employee of the Company, nor any consultant
with whom the Company has contracted, is in violation of any term of any
employment contract, proprietary information agreement or any other agreement
relating to the right of any such individual to be employed by, or to contract
with, the Company because of the nature of the business conducted by the
Company; and to the best of the Company’s knowledge the continued employment by
the Company of its present employees, and the performance of the Company’s
contracts with its independent contractors, will not result in any such
violation. The Company has not received any written notice alleging that any
such violation has occurred. Except as otherwise set forth in the Memorandum,
no
employee of the Company has been granted the right to continued employment
by
the Company or to any compensation following termination of employment with
the
Company except for any of the same which would not have a material adverse
effect on the business of the Company. The Company is not aware that any
officer, key employee or group of employees intends to terminate his, her or
their employment with the Company, nor does the Company have a present intention
to terminate the employment of any officer, key employee or group of
employees.
2.10
Title
to Properties and Assets; Liens, Etc.
The
Company has good and marketable title to its properties and assets, including
the properties and assets reflected in the most recent balance sheet included
in
the Financial Statements, and good title to its leasehold estates, in each
case
subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than
(a) those resulting from taxes which have not yet become delinquent; (b) liens
and encumbrances which do not materially detract from the value of the property
subject thereto or materially impair the operations of the Company; and (c)
those that have otherwise arisen in the ordinary course of business. The Company
is in compliance with all material terms of each lease to which it is a party
or
is otherwise bound.
2.11 Obligations
to Related Parties.
Except
as described in the Memorandum, there are no obligations of the Company to
officers, directors, stockholders, or employees of the Company other than (a)
for payment of salary or other compensation for services rendered, (b)
reimbursement for reasonable expenses incurred on behalf of the Company and
(c)
for other standard employee benefits made generally available to all employees
(including stock option agreements outstanding under any stock option plan
approved by the Board of Directors of the Company). Except as may be disclosed
in the Memorandum, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
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III.
MISCELLANEOUS
3.1 Notice.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Subscription Agreement must be in writing and
will
be deemed to have been delivered: (a) upon receipt, when delivered personally,
(b) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party), or (c) one (1) business day after deposit with an overnight courier
service, in each case properly addressed to the party to receive the same.
The
addresses and facsimile numbers for such communications shall be:
If
to the
Company:
Malibu
Minerals, Inc.
Suite
510
- 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attn:
Xxxxx
Xxxxx
Facsimile:
With
a
copy to (which shall not constitute notice):
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxx
X. Xxxxxxxx, Esq
Facsimile:
(000) 000-0000
If
to the
Subscriber, to its address and facsimile number set forth at the end of this
Subscription Agreement, or to such other address and/or facsimile number and/or
to the attention of such other person as specified by written notice given
to
the Company five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (a) given by the recipient of such notice, consent,
waiver or other communication, (b) mechanically or electronically generated
by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission, or (c) provided
by
an overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (a), (b) or (c) above, respectively.
3.2 Entire
Agreement; Amendment.
This
Subscription Agreement supersedes all other prior oral or written agreements
between the Subscriber, the Company, their affiliates and persons acting on
their behalf with respect to the matters discussed herein, and this Subscription
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company no
r
the Subscriber makes
9
any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Subscription Agreement may be amended or waived other
than
by an instrument in writing signed by the Company and the holders of at least
a
majority of the Securities then outstanding (determined on an as exercised
to
common stock basis) (or if prior to the closing, the Subscribers purchasing
at
least a majority of the Securities to be purchased at the closing). No such
amendment shall be effective to the extent that it applies to less than all
of
the holders of the Securities then outstanding.
3.3 Severability.
If any
provision of this Subscription Agreement shall be invalid or unenforceable
in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Subscription Agreement
in
that jurisdiction or the validity or enforceability of any provision of this
Subscription Agreement in any other jurisdiction.
3.4 Governing
Law; Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by, and construed in accordance with the laws of
the
State of New York without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of
the
courts of the State of New York for the purpose of any suit, action, proceeding
or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action
or proceeding may be served on each party hereto anywhere in the world by the
same methods as are specified for the giving of notices under this Agreement.
Each of the parties hereto irrevocably consents to the jurisdiction of any
such
court in any such suit, action or proceeding and to the laying of venue in
such
court. Each party hereto irrevocably waives any objection to the laying of
venue
of any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT
TO
THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY
AS TO
THIS WAIVER.
3.5 Headings.
The
headings of this Subscription Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Subscription
Agreement.
3.6 Successors
And Assigns.
This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Company shall not
assign this Subscription Agreement or any rights or obligations hereunder
without the prior written consent of the holders of at least a majority the
Securities then outstanding, except by merger or consolidation. The Subscriber
shall not assign its rights hereunder without the consent of the Company, which
consent shall not be unreasonably withheld.
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3.7 No
Third Party Beneficiaries.
This
Subscription Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
3.8 Survival.
The
representations and warranties of the Company and the Subscriber contained
in
Articles I and II and the agreements set forth this Article IV shall survive
closing for a period of two years.
3.9 Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Subscription Agreement and the consummation of the transactions contemplated
hereby.
3.10 No
Strict Construction.
The
language used in this Subscription Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
3.11 Legal
Effect.
The
Subscriber acknowledges that: (a) it has read this Subscription Agreement and
the exhibits hereto; and (b) it understands the terms and consequences of this
Subscription Agreement and is fully aware of its legal and binding
effect.
3.12 Counterparts.
This
Subscription Agreement may be executed in two or more identical counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party; provided that a facsimile signature shall be considered due
execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original, not a facsimile
signature.
[Signature
page follows.]
11
IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of
the
day and year first written above.
|
______________________________________
Name
of Subscriber
|
No.
of Shares:
____________________
|
|
______________________________________
Signature
|
|
|
______________________________________
Name
(Please Print)
|
______________________________________
Title
______________________________________
Address
of Subscriber
|
Subscription
Aceepted:
MALIBU
MINERALS, INC.
|
||
| |
|
|
| By: | /s/ | |
|
Xxxxx Xxxxx |
||
| Chief Executive Officer | ||
