EXHIBIT 10.41
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SUBSCRIPTION AGREEMENT
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THIS SUBSCRIPTION AGREEMENT (this "Agreement") dated as of May 15,
2000, is by and between ENTRADE INC., a Pennsylvania corporation (the
"Company"), and the undersigned subscriber (the "Subscriber").
RECITALS
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WHEREAS, the Subscriber hereby subscribes for a certain secured
promissory note dated of even date herewith (the "Note") made by the
Company payable to the order of the Subscriber in the original principal
amount of __________________ Dollars and No/100 ($______) (the
"Subscription Price").
AGREEMENTS
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NOW THEREFORE, in consideration of the foregoing and the obligations
and covenants contained herein, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the Subscriber hereby agrees as follows:
1. The Subscriber represents and warrants to the Company, which
representations and warranties shall survive the execution and delivery of
this Agreement, that:
(a) the Subscriber acknowledges that all relevant documents
pertaining to the Company have been made available to the Subscriber,
including, without limitation, any and all instruments, agreements and
documents of the Company of public record with the Securities and Exchange
Commission, and the Subscriber has had the opportunity to verify and
clarify any information concerning the Subscriber's investment in the
Company, and ask questions to and receive answers thereto from management
of the Company.
(b) the Subscriber understands that the Note is being offered
pursuant to exemptions from State and Federal registration and cannot be
sold or assigned by the Subscriber without registration under the
Securities Act of 1933, as amended ("Act"), and all applicable state
securities laws unless, in the opinion of counsel satisfactory to the
Company, exemptions therefrom are available.
(c) the Subscriber has such knowledge and experience in
financial and business matters that the Subscriber is capable of evaluating
the merits and risks of purchasing and owning the Note.
(d) the Note is being acquired solely by, and for the account
of, the Subscriber, for investment only and not with a view to, or in
connection with, the sale, subdivision, fractionalization or distribution
thereof.
(e) the Subscriber understands that no governmental authority
has made any finding or determination relating to the fairness of the
purchase of the Note, and that no governmental authority has recommended or
endorsed, or will recommend or endorse, the Note.
(f) the Subscriber recognizes that there will be no market
for the Note and that the Subscriber cannot expect to be able readily to
liquidate the Subscriber's investment.
(g) the Subscriber is an accredited investor as that term is
defined in Rule 501 of Regulation D promulgated under the Act.
(h) the Subscriber has relied solely upon the independent
investigations made by the Subscriber or the Subscriber's advisors in
making the decision to purchase the Note. Other than with respect to the
agreements and instruments executed and delivered by the Company of even
date herewith in connection with the Note, the Subscriber acknowledges that
no other representations or agreements (whether oral or written) have been
made to the Subscriber with respect to the Subscriber's purchase of the
Note.
(i) the Subscriber understands that the offering of the Note
involves a high degree of risk and Subscriber is able to bear the risk of
losing his entire investment in the Company.
(j) concurrently with the Subscriber's signature hereto, the
Subscriber has loaned the amount of the Subscription Price to the Company
in full in immediately available funds.
(k) this Agreement is the legal and validly binding agreement
of the Subscriber, enforceable in accordance with its terms.
2. The Subscriber understands and agrees that nothing in this
Agreement shall be construed to confer any voting rights enjoyed by other
shareholders of the Company upon the Subscriber.
3. The Subscriber agrees to indemnify the Company, and each of its
directors, shareholders, employees, officers, attorneys, and agents, and
hold each of them harmless from and against any and all loss, liability,
claim, damage, cost and expense whatsoever (including, without limitation,
any and all investigation and litigation expenses, and attorneys fees)
arising out of or based upon any breach of Subscriber's representations and
warranties herein or in connection with the sale or distribution by the
Subscriber of the Note purchased pursuant hereto in violation of the Act or
any other applicable law.
4. This Agreement shall be binding upon, and inure to the benefit
of, the parties and their heirs, executors, administrators, successors,
legal representatives and assigns.
5. Any notice, demand, or communication shall be deemed to have
been sufficiently given or served for all purposes if delivered personally
to the party or to an executive officer of the party to whom the same is
directed or, if sent by registered or certified mail, postage prepaid,
addressed to the Subscriber as set forth in this Agreement. Except as
otherwise provided herein, any such notice shall be deemed to be given two
(2) business days after the date on which the same was deposited in the
United States mail, addressed and sent as aforesaid.
6. The Subscriber hereby agrees to execute and deliver any other
documents or instruments necessary or advisable to more fully carry out the
intent of this Agreement, and to take any other acts reasonably required by
the Company in connection therewith. This Agreement may not be amended or
modified except in writing by the Company and the Subscriber.
7. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and the same instrument. Facsimile signatures shall be effective and
binding as if they were original signatures. Whenever the singular number
is used in this Agreement and when required by the context, the same shall
include the plural and vice versa, and the masculine gender shall include
the feminine and neuter genders and vice versa.
8. This Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of Illinois, without
regard to conflicts of law principles.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned subscriber has executed this
Subscription Agreement as of the date first above written.
Subscriber:
By:
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Social Security Number or F.E.I.N.
Address of Subscriber:
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Amount of Subscription: $_________
The Company hereby accepts the foregoing Subscription Agreement
subject to the terms and conditions thereof. Accepted this 15th day of
May, 2000.
ENTRADE INC.
By:
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Name:
Its:
