EXHIBIT 10.1 (a)
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT ("Agreement") is _ made this [Date] by and between
XxxXxxxXxxxXxXxxXxxxxxxx.xxx, Inc., a Texas corporation (the "Company"), and
[Name of Investor], a [Type of Organization] (the "Subscriber").
WHEREAS, the Company is seeking an infusion of capital and is desirous of
potential investors; and
WHEREAS, the Subscriber is desirous of investing in the Company pursuant to the
terms of that certain offering (the "Offering") detailed in that certain
Prospectus dated ________ and constituting part of that certain Registration
Statement on Form SB-2 as declared effective by the U.S. Securities and Exchange
Commission (the "SEC") on __________ (the "Registration Statement");
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise and
agree as follows:
1. SECURITIES
A. The undersigned Subscriber hereby subscribes for and agrees to
purchase shares (the "Shares") of the Company's common stock, par value $.0001
per share (the "Common Stock") more fully described in the Prospectus which is
incorporated herein by reference.
B. The Subscriber hereby encloses a check representing irrevocable
payment of $[amount] (the "Purchase Payment") made payable to Securities
Transfer Corporation, Escrow Acct. Subscriber hereby confirms that he has
reviewed a copy of the Prospectus.
2. REPRESENTATIONS AND WARRANTIES
A. In order to induce the Company to accept this Subscription
Agreement, the Subscriber represents and warrants to, and covenants and agrees
with, the Company as follows.
1. The Subscriber understands and agrees that unless properly
revoked before closing of a sale of the Shares to the Subscriber, this
subscription will be irrevocable and will survive the Subscriber's death,
disability or insolvency, except that the Subscriber will have no obligations in
the event that this Agreement is rejected in its entirety by the Company.
2. The Subscriber understands and agrees that (a) this
Subscription Agreement and the payment tendered in accordance herewith, may be
accepted or rejected in whole or in part in the sole and absolute discretion of
the Company; the unaccepted remainder of the payment to be refunded to the
Subscriber in the event that the Company does not accept the entire payment and
if the Company accepts this Agreement in whole or part and the Subscriber
tenders the payment to the Company, then the Subscriber will become a
shareholder of the Company.
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3. The Subscriber has full power and authority to execute and
deliver this Agreement, and such Agreement has been duly executed and delivered
by or on behalf of the Subscriber and constitutes a legal, valid and binding
obligation of the Subscriber enforceable in accordance with its respective
terms, except to the extent such enforceability may be limited by the laws of
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally or by general principles of equity.
4. Neither the execution, delivery nor performance by the
Subscriber of this Agreement violates or conflicts with, creates (with or
without the giving of notice or the lapse of time, or both) a default under or a
lien or encumbrance upon any of the Subscriber's assets or properties pursuant
to or requires the consent, approval or order of any government or governmental
agency or other person or entity under (a) any note, indenture, lease, license
or other material agreement to which the Subscriber is a party or by which it or
any of its assets or properties is bound or (b) any statute, law, rule,
regulation or court decree binding upon or applicable to the Subscriber or its
assets or properties. If the Subscriber is not a natural person, the execution
and delivery by the Subscriber of this Agreement have been duly authorized by
all necessary corporate or other action on behalf of the Subscriber and such
investment will not constitute a breach or violation of, or default under, the
charter or by-laws or equivalent governing documents of the Subscriber.
5. The Subscriber, if an individual, is at least 21 years of
age and has full legal capacity to enter into and perform his obligations under
the Agreement. The Subscriber, if signing this Subscription Agreement on behalf
of an entity, has been duly authorized by such entity to do so.
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6. If the Subscriber is, or is acting on behalf of, an
employee benefit plan (the "Plan") which is subject to ERISA: (a) the Plan, and
any fiduciaries responsible for the Plan's investments, are aware of and
understand the Company's investment objectives, policies and strategies, and the
decision to invest the Plan's assets in the Company was made with appropriate
consideration of relevant investment factors with regard to the Plan including
the diversification requirements of Section 404(a)(1)(c)(3) of ERISA; (b) the
fiduciary or other person signing this Subscription Agreement on behalf of the
Subscriber has not received or relied on any advice of the Company with respect
to an investment in the Company; (c) this subscription and the investment
contemplated hereby are authorized and executed in accordance with all
requirements applicable to the Plan under its governing instruments; and (d) the
Subscriber acknowledges its understanding that neither of the Company nor their
Manager will be a "fiduciary" (within the meaning of Section 3(21) of ERISA)
with respect of any assets of the Plan by reason of the Subscriber's investment
in the Company .
7. The foregoing representations and warranties are true and
accurate as of the date hereof and will be true and accurate as of the date of
delivery of this Agreement to the Company and will survive such delivery. If at
any time prior to issuance of the Shares to the Subscriber, any representation
and warranty of the Subscriber is no longer true, the Subscriber promptly will
give written notice to the Company specifying which representations and
warranties are not true and the reason therefore, whereupon the Subscriber's
subscription may be rejected or, if previously accepted, such acceptance may be
rescinded.
3. EXECUTION IN COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original and all of which, taken together, will constitute the
same agreement.
4. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in
writing and delivered personally to the other designated party at the above
stated address or mailed by certified, registered or Express mail, return
receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to
be sent by written notice to the other under any provision of this paragraph.
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5. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of
Texas. All disputes under this Agreement shall be resolved by litigation in the
courts of the State of Texas including the federal courts therein and the
Parties all consent to the jurisdiction of such courts, agree to accept service
of process by mail, and hereby waive any jurisdictional or venue defenses
otherwise available to it.
6. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, administrators, successors and
assigns.
7. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder
to any third party without the prior express written approval of the other party
which shall not be unreasonably withheld.
8. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or
subsequent default of the same of other provisions of this Agreement.
9. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a
court of competent jurisdiction, such invalidity shall not affect the validity
or operation of any other term, clause or provision and such invalid term,
clause or provision shall be deemed to be severed from the Agreement.
10. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and revokes
and supersedes all prior agreements between the parties and is intended as a
final expression of their Agreement. It shall not be modified or amended except
in writing signed by the parties hereto and specifically referring to this
Agreement. This Agreement shall take precedence over any other documents which
may conflict with this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have each caused to be affixed hereto its or his/her hand and seal the day
indicated.
[Name of Subscriber] XxxxXxxxXxXxxXxxxxxxx.xxx, Inc.
By: By:
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Title: Title:
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Date: Date:
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement on
this _____ day of _______________, 2001.
_______ Shares for a purchase price of $____________ or $.50 per Share.
Manner in which title is to be held (Please Check One):
1. _____ Individual Plan
2. _____ Joint Tenants with Right of Survivorship
3. _____ Community Property Under the Uniform Gift to Minors Act of the State
of Texas
4. _____ Tenants in Common
5. _____ Corporation/Partnership
6. _____ XXX
7. _____ Trust/Estate/Pension or Profit Sharing Date Opened: ________
8. _____ As a Custodian for _____________
9. _____ Married with Separate Property
10. _____ Xxxxx
EXECUTION BY SUBSCRIBER WHO IS A NATURAL PERSON
Exact Name in Which Title is to be Held
(Signature)
(If Joint Tenant or Tenants in Common, both persons must sign and this page must
contain all information for both persons).
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Name (Please Print)
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Residence: Number and Street
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City State Zip Code
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Telephone Number
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Social Security Number
ACCEPTED this ____ day of _____________, 2001, on behalf of the Company
By:
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Limited Liability Company, Trust, Etc.)
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Name of Entity (Please Print)
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Type of Entity (Partnership, Corporation, Limited Liability Company, Trust
Estate, Other)
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Address of Principal Office of Entity
The Subscriber represents and warrants that (i) he or she is the ______________
(Insert Title) of the above entity, (ii) he or she has full power and authority
to execute this Subscription Agreement on behalf of the above entity and (iii)
investment in the Company by the above entity is not prohibited by the governing
documents of the entity.
SUBSCRIBER
By:
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Name:
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Title:
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Attest:
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(If Entity is a Corporation)
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Address
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Telephone Number
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Taxpayer Identification Number
ACCEPTED this ____ day of ___________, 2001, on behalf of the Company
By:
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