SUBSCRIPTION AGREEMENT
EXHIBIT 10.1
This Subscription Agreement dated as of March 30, 2006 (the “Agreement”) is entered into by
and among ProLink Holdings Corp., a Delaware corporation (the “Company”), and the purchaser shown
on the signature page hereof (the “Purchaser”).
BACKGROUND
WHEREAS, the Company is offering in a private placement to “accredited investors” (as such
term in defined in Regulation D (“Regulation D”) promulgated under the Securities Act of 1933, as
amended (the “Securities Act”) up to 500,000 shares of common stock, $0.0001 par value per share,
of the Company (the “Common Stock”) (each share of Common Stock is being sold at an offering price
of $1.00 per share) (the “Offering”);
WHEREAS, the Purchaser desires to purchase such Common Stock 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 agree as follows:
1. Authorization and Sale of Shares.
1.1
Authorization. The Company has duly authorized the sale and issuance,
pursuant to the terms of this Agreement, of up to 500,000 shares of its Common Stock.
1.2
Sale of Shares. Subject to the terms and conditions of this Agreement,
at the Closing, the Company will sell and issue to the Purchaser, and the Purchaser will purchase,
250,000 shares of Common Stock for the purchase price of $1.00 per share. The shares of Common
Stock being sold under this Agreement are sometimes hereinafter collectively referred to as the
“Securities.”
To subscribe for Securities, this Agreement must be properly completed, executed and delivered
to the Company, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxx. The
Purchaser shall wire to the Company in accordance with the instructions contained on Exhibit A. If
the purchase price is paid by wire transfer, the Purchaser shall (i) include the Purchaser’s name
in the wire transfer instructions; and (ii) request from the bank or other financial institution
that is originating the transfer the federal wire number with respect to the and retain that number
for future reference.
1.3
Use of Proceeds. The Company will use the proceeds from the sale of the
Securities for partial payment of the purchase price of certain assets from the bankruptcy estate
of ParView, Inc., for working capital and general corporate purposes of its subsidiary ProLink
Solutions, LLC.
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2. The
Closing. The closing of the sale and purchase of 250,000 Securities
under this Agreement shall take place at such time and place as the Company may designate (the
“Closing,” and the date on which the Closing occurs, the “Closing Date”). The Offering shall
terminate on March 31, 2006. There is no assurance that any Securities will be sold or that the
Closing will occur. In the event that the Closing does not occur, the Company will return any money
that a prospective purchaser may have delivered to it.
Promptly following the Closing, the Company shall deliver to each of the Purchasers a
certificate for the number of shares of Common Stock being purchased by such Purchaser, registered
in the name of such Purchaser, against payment to the Company of the purchase price therefor by
wire transfer.
The Purchaser hereby authorizes and directs the Company to deliver the Securities to be issued
to the Purchaser pursuant to this Agreement directly to the address indicated on the signature page
hereto.
3. Representations
of the Purchaser. The Purchaser represents and warrants
to the Company as follows:
(a) The Purchaser hereby represents that the Purchaser has carefully read the Company’s
filings (the “SEC Filings”) with the United States Securities and Exchange Commission (the
“Commission”), and all other information regarding the Company which the Purchaser has requested or
desired to know.
(b) The Purchaser has had a reasonable opportunity to ask questions of and receive answers
from the Company concerning the Company and the Offering, and all such questions, if any, have been
answered to the full satisfaction of the Purchaser.
(c) The Purchaser understands that the Company has determined that the exemption from the
registration provisions of Section 4(2) of the Securities Act and Regulation D promulgated
thereunder is applicable to the offer and sale of the Securities, based, in part, upon the
representations, warranties and agreements made by the Purchaser herein. The Purchaser hereby
acknowledges that the Offering has not been reviewed by the Commission.
(d) Except as set forth herein, no representations or warranties have been made to the
Purchaser by the Company or any agent, employee or affiliate of the Company and in entering into
this transaction, the Purchaser is not relying upon any information other than the results of
independent investigation by the Purchaser.
(e) The Purchaser has full power and authority to execute and deliver this Agreement and to
perform the obligations of the Purchaser hereunder and this Agreement is a legally binding
obligation of the Purchaser in accordance with its terms.
(f) Regulation D.
(i) The Purchaser understands and acknowledges that: (A) the Securities acquired pursuant to
this Agreement have not been registered under the Securities Act
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and are being sold in reliance upon an exemption from registration afforded by Regulation D; and
that such Securities have not been registered with any state securities commission or authority;
(B) pursuant to the requirements of Regulation D, the Securities may not be transferred, sold or
otherwise exchanged unless in compliance with the provisions of Regulation D and/or pursuant to
registration under the Securities Act, or pursuant to an available exemption thereunder; and (C)
other than as set forth in Section 5.1 of this Agreement, the Company is under no obligation to
register the Securities under the Securities Act or any state securities law, or to take any action
to make any exemption from any such registration provisions available.
(ii) The Purchaser represents that (i) no Securities were offered or sold to it by means of
any form of general solicitation or general advertising, and in connection therewith the Purchaser
did not (A) receive or review any advertisement, article, notice or other communication published
in a newspaper or magazine or similar media or broadcast over television or radio, whether closed
circuit or generally available; or (B) attend any seminar, meeting or industry investor conference
whose attendees were invited by any general solicitation or general advertising.
(iii) The Purchaser is an accredited investor within the meaning of Rule 501 of Regulation D,
is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with
respect to investment shares representing an investment decision like that involved in the purchase
of the Securities.
(iv) The Purchaser is purchasing the Securities for its own account for investment only and
has no intention of selling or distributing the Securities and no other person has any interest in
or participation in the Securities or any right, option, security interest, pledge or other
interest in or to the Securities. The Purchaser recognizes that an investment in the Securities
involves a high degree of risk, including a risk of total loss of the Purchaser. The Purchaser
understands, acknowledges and agrees that it must bear the economic risk of its investment in the
Securities for an indefinite period of time and has knowledge and experience in financial and
business matters such that it is capable of evaluating the risks of the investment in the
Securities and the Purchaser understands, acknowledges and agrees that prior to any such offer or
sale, the Company may require, subject to the fulfillment of the Company’s obligations under
Section 5 of this Agreement, as a condition to effecting a transfer of the Securities, an opinion
of counsel, acceptable to the Company, as to the registration or exemption therefrom under the
Securities Act and any state securities acts, if applicable.
(v) The Purchaser acknowledges that the Securities will bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES
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ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR AMALGAMATED TECHNOLOGIES, INC. SHALL
HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
(g) Neither the Purchaser, nor any affiliate of the Purchaser or any person acting on his, her
or its behalf, has recently sold shares of unregistered Common Stock of the Company.
(h) The Purchaser represents and warrants that the Purchaser is not (a) a broker or dealer
admitted to membership in the National Association of Securities Dealers, Inc. (“NASD”), (b) a
controlling stockholder of an NASD member, or (c) a person associated with a member of the NASD
(i) The Purchaser represents and warrants that it has not engaged, consented to nor authorized
any broker, finder or intermediary to act on its behalf, directly or indirectly, as a broker,
finder or intermediary in connection with the transactions contemplated by this Agreement. The
Purchaser shall indemnify and hold harmless the Company from and against all fees, commissions or
other payments owing to any such person or firm acting on behalf of such Purchaser hereunder.
(j) The Purchaser agrees that from the time the Purchaser was first contacted by the Company
regarding the Offering, until a point in time equal to four months from the date hereof, the
Purchaser has not and shall not, directly or indirectly, through related parties, affiliates or
otherwise, (A) sell “short” or “short against the box” (as those terms are generally understood)
any equity security of the Company or (B) otherwise engage in any transaction that involves hedging
of the Purchaser’s position in any equity security of the Company.
(k) The Company may terminate the Offering or reject any subscription, in whole or in part, at
any time in its sole discretion. The execution of this Agreement by the Purchaser or solicitation
of the investment contemplated hereby shall create no obligation on the part of the Company to
accept any subscription or complete the Offering.
4. Condition
to the Obligations of the Company. The obligations of the
Company under Section 1.2 of this Agreement are subject to fulfillment, or the waiver, of the
following condition on or before the Closing:
4.1 Accuracy of Representations and Warranties. The representations and
warranties of the Purchasers contained in Section 3 shall be true on and as of the Closing Date
with the same effect as though such representations and warranties had been made on and as of that
date (except that any representation or warranty expressly stated to have been made or given as of
a specific date need be true only as of such date).
5. Covenants of the Company.
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5.1
Piggyback Registration Rights. If at any time the Company shall
determine to register under the Securities Act any of its securities (other than on Form S-8 or
Form S-4 or their then equivalents and other than shares to be issued solely (i) in connection with
any acquisition of any entity or business (ii) upon the exercise of stock options, or (iii)
pursuant to employee benefit plans), it shall send to each holder of Registrable Shares (as defined
below), including each holder who has the right to acquire Registrable Shares, written notice of
such determination and, if within thirty (30) days after receipt of such notice, such holder shall
so request in writing, the Company shall use its commercially reasonable efforts to include in such
registration statement all or any part of the Registrable Shares such holder requests to be
registered therein; provided that, if, in connection with any offering involving an underwriting of
Common Stock to be issued by the Company, the managing underwriter shall prohibit the inclusion of
shares of Common Stock by selling holders in such registration statement or shall impose a
limitation on the number of shares of such Common Stock which may be included in any such
registration statement because, in its judgment, such limitation is necessary to effect an orderly
public distribution, and such limitation is imposed pro rata with respect to all securities whose
holders have a contractual, incidental (“piggyback”) right to include such securities in the
registration statement and as to which inclusion has been requested pursuant to such right and
there is first excluded from such registration statement all shares of Common Stock sought to be
included therein by (i) any holder thereof not having any such contractual, incidental registration
rights, and (ii) any holder thereof having contractual, incidental registration rights subordinate
and junior to the rights of the holders of Registrable Shares, the Company shall then be obligated
to include in such registration statement only such limited portion (which may be none) of the
Registrable Shares with respect to which such holder has requested inclusion hereunder.
“Registrable Shares” means the shares of Common Stock sold in the Offering; provided, however, that
shares of Common Stock shall cease to be Registrable Shares upon any sale of such shares pursuant
to (i) a registration statement filed under the Securities Act, or (ii) Rule 144 promulgated under
the Securities Act.
6. Transfer of Securities. The Purchaser is aware that the Company will
make a notation in its appropriate records and issue “stop transfer” instructions to its transfer
agent with respect to the restrictions on the transferability of such Securities.
(a) The Purchaser understands that this subscription is not binding upon the Company until
the Company accepts it, which acceptance is at the sole discretion of the Company and is to be
evidenced by the Company’s execution of this Agreement where indicated. This Agreement shall be
null and void if the Company does not accept it as aforesaid. In the event the Company does not
accept the Offering proceeds, the Offering will not be completed and all Offering proceeds will
thereafter be promptly returned to the Purchasers without interest or deduction. The
undersigned understands that the Company may, in its sole discretion, reject this subscription,
in whole or in part, and/or reduce this subscription in any amount and to any extent, whether or
not pro rata reductions are made of any other investor’s subscription.
(b) Subject to applicable state securities laws, the subscription delivered to the Company by
the Purchaser pursuant to this Agreement is not subject to revocation by the Purchaser, but may be
rejected by the Company, in whole or in part, in the Company’s sole
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discretion, in which event the purchase price and execution copy of this Agreement submitted
will be returned (by mail) to the undersigned without interest or deduction within 15 business days
thereafter.
7. The Shares are subject to standard anti-dilution provisions in the event of forward or
reverse stock splits or recapitalizations. For example, if the Company engages in a two for one
reverse stock split, a holder of 100,000 Shares will be affected as follows:
Pre-Split Ownership: 100,000 Shares
Post-Split Ownership: 50,000 Shares
8. Miscellaneous.
8.1 Successors and Assigns. This Agreement and any rights and obligations
hereunder may not be transferred or assigned by the Purchaser without the prior written consent of
the Company. This Agreement shall inure to the benefit of, and be binding upon the Company and the
Purchaser and their respective heirs, legal representatives and permitted assigns.
8.2 Survival. All representations and warranties and all covenants,
agreements and obligations made by the Company or the Purchasers in this Agreement, or in any
instrument or document furnished in connection with this Agreement or the transactions contemplated
hereby, shall survive the Closing and any investigation at any time made by or on behalf of any
indemnified party.
8.3. Indemnification. The Purchaser agrees to indemnify the Company and hold it
harmless from and against any and all losses, damages, liabilities, costs and expenses which it may
sustain or incur in connection with the breach by the Purchaser of any representation, warranty or
covenant made by the Purchaser .
8.4 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or mailed by certified
or registered mail, return receipt requested, postage prepaid, as follows:
(a) If to the Company, to ProLink Holdings Corp., 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000, Attention: General Counsel or to such other address as the Company or the undersigned shall
have designated to the other by like notice.
(b) If to the Purchaser, at its address set forth on the signature page, or at such other
address or addresses as may have been furnished to the Company in writing by such Purchaser.
8.5 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject matter.
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8.6 Amendments and Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the majority of the Purchasers. No
waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
8.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which shall be one and
the same document.
8.8 Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
8.9 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement.
8.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
[signature page to follow]
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SIGNATURE PAGE
Date Signed: |
March ____, 2006 | |||
Number of Securities: |
250,000 | |||
Multiplied by Offering Price Per Share: |
x | $1.00 | ||
Equals Amount: = |
$ | 250,000 | ||
Signature
|
Signature | |
| (if purchasing jointly) | ||
Printed Name
|
Printed Second Name | |
Entity Name
|
Entity Name | |
Address
|
Address | |
City, State and Zip Code
|
City, State and Zip Code | |
Telephone – Business
|
Telephone – Business | |
Facsimile – Business
|
Facsimile – Business | |
Tax ID# or Social Security #
|
Tax ID# or Social Security # |
| Name in which securities should be issued: | ||||
This Agreement is agreed to and accepted as of March 31, 2006.
| ProLink Holdings Corp. | ||
| /s/ Xxxxx X. Xxxxxxxx | ||
| Xxxxx X. Xxxxxxxx Chief Financial Officer |
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