EXHIBIT 10.11
CONCENTRAX, INC.
SUBSCRIPTION AGREEMENT
------------------------
1. Subscription. Subject to the terms and conditions hereof,
___________________, the undersigned Investor ("Investor") hereby subscribes
to purchase ____________ ( ) Units of Concentrax, Inc, a Nevada
corporation (the "Company"), with each Unit consisting of 10 shares of the
Company's Common Stock and 10 Common Stock Purchase Warrants at a purchase
price of Two Dollars and Seventy Cents ($2.70) per Unit for a total
consideration of ________Dollars ($ ). The Common Stock Purchase
Warrants are exercisable into shares of our Common Stock on a one for one
basis at an exercise price of the higher of $0.35 per share or 55% of the 20
day average bid and ask price on the Over the Counter Bulletin Board for an
exercise beginning the date of issuance, and extending two years from the
effective date of the Company's next Registration Statement.
2. Private Placement. The parties acknowledge that this offering has
been made and this Subscription Agreement has been entered into as a private
placement negotiated between the parties.
3. Knowledge of Financial and Business Status of Company. Investor
acknowledges that he has investigated the Company immediately prior to this
investment and has reviewed the current financial condition of the Company and
its revised business plan. Investor is aware that the Company needs operating
capital.
4. Piggyback Registration Rights. The Company intends to file a
registration statement with the Securities and Exchange Commission under the
Securities Act of 1933 for the registration of these securities, which it
plans to do immediately upon the full subscription of this offering. At the
time of full subscription, the Company will: (i) file the registration
statement; and (ii) automatically include all Units (shares of Common Stock
and shares to cover the exercise of all Common Stock Purchase Units into
shares of Common Stock) purchased in this offering. The registration will be
made on Form SB-2.
5. Representations and Warranties. In consideration of the sale of
the Units, intending to be legally bound and intending the Company to rely
thereupon, Investor hereby represents, warrants, and covenants, to the Company
as follows:
(a) Neither the Company nor any person acting on behalf of the Company
has offered to sell, offered for sale or sold the Units by means
of general solicitation or general advertising. Investor has not
received, paid or given, directly or indirectly, any commission or
remuneration for or on account of any sale or the solicitation of
any sale of the Units.
(b) Company represents and warrants that the Units being issued
herein, and the constituent securities making up the Units, are
restricted under Rule 144, unless Subscriber has an opportunity to
and exercises his piggyback registration rights, which shall be
automatic in the event of full subscription of this offering.
(c) Investor has been offered full access to all underlying documents
in connection with this transaction as well as such other
information as Investor has deemed necessary or appropriate for a
prudent and knowledgeable investor to evaluate the purchase of the
Investor acknowledges that the Company has made available.
to Investor the opportunity to obtain additional information from,
to ask questions of, and receive satisfactory answers from the
1
officers of the Company concerning the terms and conditions of the
private placement and to verify the information given. Investor
is satisfied that there is no material information concerning the
condition, properties, operations and prospects of the Company of
which Investor is unaware. In making his or her investment
decision, Investor has relied solely upon his or her independent
investigation of the investment.
(d) Investor is aware that an investment in the Units is a highly
speculative investment which involves a substantial degree of
risk. Investor warrants that he/she has such sufficient requisite
knowledge and experience in business and financial matters that
Investor is capable of evaluating the merits and risks of an
investment in the Company, which is a start-up business. Investor
understands that the Company is relying on Investor's
representations for the purposes of confirming Investor's
suitability as an investor in the Company.
(e) Investor is aware that neither the Units nor their constituent
securities have been registered under the Securities Act of 1933
(the "Act"), and that Investor must therefore bear the economic
risk of the investment indefinitely because neither the Units nor
the constituent securities thereof can be sold unless subsequently
registered under the Act or under an available exemption from
registration. Investor agrees not to sell his Units or the
constituent securities thereof without registration under the Act
and applicable state securities laws unless in a transaction
exempt therefrom.
(f) The Units and the constituent securities thereof for which
Investor hereby subscribes are being acquired for investment
purposes, solely for Investor's own account and not on behalf of
other persons, and not with a view to or for the resale,
distribution, subdivision, or fractionalization thereof; Investor
has no present plans to enter into any contract, undertaking,
agreement, or arrangement for any such resale, distribution,
subdivision, or fractionalization thereof. Investor agrees that
he or she will not sell, assign, pledge, give, transfer or
otherwise dispose of any or all of the Units or the constituent
securities thereof or any interest therein unless and until
Investor has complied with all applicable provisions of federal
and state securities laws.
(g) Investor has reviewed his or her financial condition and
commitments. Based upon such review, Investor is satisfied that
he or she has adequate means of providing for his or her financial
needs and possible contingencies as well as those of any
dependents, and that he or she does not have any current or
foreseeable future need for liquidity of the funds being utilized
in the purchase of the Units. Investor is capable of bearing the
economic risk of the investment in the Units and the constituent
securities thereof for the indefinite future. At this time,
Investor has assets or sources of income which, if taken together,
are more than sufficient so that Investor could bear the risk of
loss of its, his or her entire investment in the Units and their
constituent securities.
(h) Investor is aware that this transaction is a "private placement"
and has not been reviewed by the United States Securities and
Exchange Commission or by any state securities authorities. No
agency, federal or state, has passed upon the fairness or merits
of this investment.
(i) Neither this Subscription Agreement nor Investor's rights
hereunder, may be assigned, sold or transferred in any manner and
this Subscription Agreement may not be altered, amended or revoked
without the prior written consent of the President of the Company.
2
(j) Investor is a bona fide resident of the state set forth next to
Investor's signature, such state is Investor's principal
residence, and Investor is at least 18 years of age.
(k) Investor understands and agrees that if Investor's subscription is
accepted, Investor will be required to execute such additional
documents as may be necessary to effect the issuance of the
Company's Units which Investor has purchased.
The foregoing representations, warranties and covenants are true and accurate
as of the date hereof and shall be true and accurate as of the date of
completion of the Private Placement. If such representations and warranties
shall not be true and accurate in any respect prior to completion of the
Private Placement, Investor shall give written notice of such fact to the
Company, specifying which representations and warranties are not true and
accurate and the reasons therefor.
6. Indemnification. Investor acknowledges that he understands the
meaning and legal consequences of the representations and warranties contained
herein, and Investor hereby agrees to indemnify and hold harmless the Company,
its directors, officers and representatives, and any person controlling the
Company within the meaning of Section 15 of the Act, from and against any and
all claim, loss, damage, expense and liability whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending any litigation commenced or threatened
or any claim whatsoever) based upon, due to or arising out of a breach of any
representation or warranty or covenant of the undersigned contained in this
Subscription Agreement or in the Financial Questionnaire or of any false
representation by Investor.
7. Miscellaneous.
(a) This Subscription Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all
prior negotiations and understandings which are deemed to have been
merged herein. No representations were made or relied upon by either
party, other than those expressly set forth herein.
(b) This writing shall be amended only by a further writing. No agent,
employee, or other representative of any party is empowered to alter any
of the terms hereof, including specifically this Paragraph, unless done
in writing and signed by both parties.
(c) Whenever required by the context hereof: the masculine gender
shall be deemed to include the feminine and neuter; and the singular
member shall be deemed to include the plural. Time is expressly
declared to be of the essence of this Agreement. This Agreement shall
be deemed to have been mutually prepared by all parties and shall not be
construed against any particular party as the draftsman. The invalidity
of any one or more of the words, phrases, sentences, clauses, sections
or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part
hereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement
shall be declared invalid by a court of competent jurisdiction, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, section or
sections, or subsection or subsections had not been inserted.
(d) The validity, interpretation, and performance of this Agreement
shall be controlled by and construed under the laws of the State of
Texas. Venue and jurisdiction of any controversy or claim arising out
of, or relating to this Subscription Agreement, or the breach thereof,
that cannot
3
be resolved by negotiation, shall be in the County of Xxxxxx, State of
Texas. In any legal action or other proceeding involving, arising out
of or in any way relating to this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees, costs, and expenses
of litigation.
(e) The failure of any party to object to, or to take affirmative
action with respect to, any conduct of any other party which is in
violation of the terms of this Agreement shall not be construed as a
waiver of such violation or breach, or of any future breach, violation,
or wrongful conduct. No delay or failure by any party to exercise any
right under this Agreement, and no partial or single exercise of that
right, shall constitute a waiver or exhaustion of that or any other
right, unless otherwise expressly provided herein.
(f) Headings in this Subscription Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
(g) This Subscription Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(h) The provisions of this Subscription Agreement shall be binding upon
and inure to the benefit of each of the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Subscription
Agreement this ___ day of _______ 2002:
______________________________________________
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Print Name)
INVESTOR
ACCEPTED: CONCENTRAX, INC.
By: __________________________ President
Xxxx Xxxxxxx
4
