REGULATION S SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
Exhibit
10.1
To: Fenario,
Inc.
AND
INVESTMENT REPRESENTATION
SECTION
1
1.1 Subscription.
(a) The
undersigned, intending to be legally bound, hereby irrevocably subscribes for
and agrees to purchase ____________ shares (the “Shares”) of the common stock
(the “Common Stock”) of Fenario, Inc., a Nevada corporation (the "Company") in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the “Securities Act”). The undersigned understands
that the Shares are being sold in connection with an offering by the Company of
a minimum of 25,000 shares of Common Stock and a maximum of up to 4,000,000
shares at $0.01 per share (the “Offering”).
The undersigned understands that the
Shares are being offered, sold, and issued in a transaction exempt from the
registration requirements of the Securities Act.
1.2 Purchase of
Shares.
The undersigned understands and
acknowledges that the purchase price to be remitted to the Company in exchange
for the Shares shall be $________________. The undersigned further
understands and acknowledges that this subscription is irrevocable.
1.3 Acceptance or Rejection of
Subscription.
Payment has been made simultaneous
herewith by either (i) wire transfer as set forth below or (ii) by check payable
to ___________, in full payment of the shares of common stock subscribed for
(the “Subscription Payment”). The wire transfer instructions are as
follows:
________
________
________
If the
undersigned has paid by check, the undersigned has sent a check by overnight
mail to:
________
________
________
The
undersigned agrees that subject to the conditions set forth herein, the Company
will accept subscriptions and payments therefor as they are received. The
undersigned further understands that the Company will notify the undersigned as
to whether its subscription has been accepted in whole or in part as reasonably
promptly as possible. If the Company accepts all or a portion of the
undersigned’s subscription, the undersigned agrees that this Agreement shall
become effective with respect to the Company and the undersigned, and the
Company will promptly deliver to the undersigned an executed copy of this
Agreement and a share certificate representing the Shares. The undersigned
acknowledges that the Corporation may terminate this offering at any
time.
In the event the sale of the Shares
subscribed for by the undersigned is not consummated by the Company for any
reason (in which event this Agreement shall be deemed to be rejected), this
Agreement and any other agreement entered into between the undersigned and the
Company relating to this subscription shall thereafter have no force or effect
and the Company shall promptly return or cause to be returned to the undersigned
the purchase price remitted to the Company by the undersigned, without interest
thereon or deduction therefrom, in exchange for the Shares.
SECTION
2
2.1 Closing. The
closing (the "Closing") of the purchase and sale of the Shares, shall occur
simultaneously with the acceptance by the Company of the undersigned's
subscription, as evidenced by the Company's execution of this Subscription
Agreement. The Closing shall not take place until at least an
aggregate minimum of 25,000 shares of common stock are subscribed for in this
offering. You have the right to revoke your subscription by written
notice to the Company if the Closing has not occurred on or before thirty days
after the date that the undersigned has delivered an executed signature page to
this Agreement and the payment thereof, unless you are in material breach of the
Agreement; in such event, this subscription shall thereafter have no force or
effect and the Company shall promptly return or cause to be returned to you the
purchase price remitted to the Company by you, without interest thereon or
deduction therefrom.
SECTION
3
3.1 Investor Representations and
Warranties. The undersigned hereby acknowledges,
represents and warrants to, and agrees with, the Company and its affiliates as
follows:
(a) Investment
Purposes. The undersigned is acquiring the Shares for his own
account as principal, not as a nominee or agent, for investment purposes only,
and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part in any transactions that would be in violation of
the Securities Act or any state securities or "blue-sky" laws. No other person
has a direct or indirect beneficial interest in, and the undersigned does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to, the Shares or any part
of the
Shares for which the undersigned is subscribing that would be in violation of
the Securities Act or any state securities or "blue-sky" laws.
(b) Authority. The
undersigned has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the undersigned.
(c) No General
Solicitation. The undersigned is not subscribing for the
Shares as a result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio; or presented at any seminar or similar
gathering; or any solicitation of a subscription by a person, other than Company
personnel, previously not known to the undersigned.
(d) No Obligation to Register
Shares. The undersigned understands that the Company is under
no obligation to register the Shares under the Securities Act, or to assist the
undersigned in complying with the Securities Act or the securities laws of any
state of the United States or of any foreign jurisdiction other than as
expressly provided herein.
(e) Investment
Experience. The undersigned, or the undersigned’s professional
advisors, has such knowledge and experience in finance, securities, taxation,
investments and other business matters as to evaluate investments of the kind
described in this Agreement. By reason of the business and financial experience
of the undersigned or his professional advisors (who are not affiliated with or
compensated in any way by the Company or any of its affiliates or selling
agents), the undersigned or his advisors can protect his own interests in
connection with the transactions described in this Agreement. The undersigned is
able to afford the loss of his entire investment in the Shares.
(f) Exemption from
Registration. The undersigned acknowledges his understanding
that the offering and sale of the Shares is intended to be exempt from
registration under the Securities Act. In furtherance thereof, in
addition to the other representations and warranties of the undersigned made
herein, the undersigned further represents and warrants to and agrees with the
Company and its affiliates as follows:
(1) The
undersigned has the financial ability to bear the economic risk of his
investment, has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to his investment in
the Company; and
(2) The
undersigned has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Shares. The undersigned also represents it has not
been organized for the purpose of acquiring the Shares; and
(3) The
undersigned has been provided an opportunity for a reasonable period of time
prior to the date hereof to obtain additional information concerning the
offering of the
Shares,
the Company and all other information to the extent the Company possesses such
information or can acquire it without unreasonable effort or
expense.
(g) Economic
Considerations. The undersigned is not relying on the Company,
or its affiliates or agents with respect to economic considerations involved in
this investment. The undersigned has relied solely on its own
advisors. The undersigned is not acting in concert with any of the other
shareholders of the Company in connection with its decision to purchase the
Shares and will not act in concert with any other person affiliated with the
Company or any other shareholder of the Company in determining when or under
what circumstances to sell or otherwise dispose of all or any portion of the
Shares.
(h) No Other Company
Representations. No representations or warranties have been
made to the undersigned by the Company, or any officer, employee, agent,
affiliate or subsidiary of the Company, other than the representations of the
Company contained herein, and in subscribing for Shares the undersigned is not
relying upon any representations other than those contained herein.
(i) Compliance with
Laws. Any resale of the Shares during the ‘distribution
compliance period’ as defined in Rule 902(f) to Regulation S shall only be made
in compliance with exemptions from registration afforded by Regulation
S. Further, any such sale of the Shares in any jurisdiction outside
of the United States will be made in compliance with the securities laws of such
jurisdiction. The undersigned will not offer to sell or sell the
Shares in any jurisdiction unless the Investor obtains all required consents, if
any.
(j) Regulation S
Exemption. The undersigned understands that the Shares are
being offered and sold to him in reliance on an exemption from the registration
requirements of United States federal and state securities laws under Regulation
S promulgated under the Securities Act and that the Company is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of the Investor set forth herein in order to
determine the applicability of such exemptions and the suitability of the
Investor to acquire the Shares. In this regard, the undersigned
represents, warrants and agrees that:
(1) The
undersigned is not a U.S. Person (as defined below) and is not an affiliate (as
defined in Rule 501(b) under the Securities Act) of the Company and is not
acquiring the Shares for the account or benefit of a U.S. Person. A
U.S. Person means any one of the following:
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(A)
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any
natural person resident in the United States of
America;
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(B) any
partnership or corporation organized or incorporated under the laws of the
United States of America;
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(C)
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any
estate of which any executor or administrator is a U.S.
person;
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(D)
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any
trust of which any trustee is a U.S.
person;
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(E) any
agency or branch of a foreign entity located in the United States of
America;
(F) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person;
(G) any
discretionary account or similar account (other than an estate or trust) held by
a dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States of America; and
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(H)
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any
partnership or corporation if:
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(i) organized or incorporated under
the laws of any foreign jurisdiction; and
(ii) formed
by a U.S. person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or incorporated, and
owned, by accredited investors (as defined in Rule
501(a) under the Securities Act) who are not natural persons, estates or
trusts.
(2) At
the time of the origination of contact concerning this Agreement and the date of
the execution and delivery of this Agreement, the undersigned was outside of the
United States.
(3) The
undersigned will not, during the period commencing on the date of issuance of
the Shares and ending on the first anniversary of such date, or such shorter
period as may be permitted by Regulation S or other applicable securities law
(the “Restricted Period”), offer, sell, pledge or otherwise transfer the Shares
in the United States, or to a U.S. Person for the account or for the benefit of
a U.S. Person, or otherwise in a manner that is not in compliance with
Regulation S.
(4) The
undersigned will, after expiration of the Restricted Period, offer, sell, pledge
or otherwise transfer the Shares only pursuant to registration under the
Securities Act or an available exemption therefrom and, in accordance with all
applicable state and foreign securities laws.
(5) The
undersigned was not in the United States, engaged in, and prior to the
expiration of the Restricted Period will not engage in, any short selling of or
any hedging transaction with respect to the Shares, including without
limitation, any put, call or other option transaction, option writing or equity
swap.
(6) Neither
the undersigned nor or any person acting on his behalf has engaged, nor will
engage, in any directed selling efforts to a U.S. Person with respect to
the
Shares
and the Investor and any person acting on his behalf have complied and will
comply with the “offering restrictions” requirements of Regulation S under the
Securities Act.
(7) The
transactions contemplated by this Agreement have not been pre-arranged with a
buyer located in the United States or with a U.S. Person, and are not part of a
plan or scheme to evade the registration requirements of the Securities
Act.
(8) Neither
the undersigned nor any person acting on his behalf has undertaken or carried
out any activity for the purpose of, or that could reasonably be expected to
have the effect of, conditioning the market in the United States, its
territories or possessions, for any of the Shares. The undersigned
agrees not to cause any advertisement of the Shares to be published in any
newspaper or periodical or posted in any public place and not to issue any
circular relating to the Shares, except such advertisements that include the
statements required by Regulation S under the Securities Act, and only offshore
and not in the U.S. or its territories, and only in compliance with any local
applicable securities laws.
(9) Each
certificate representing the Shares shall be endorsed with the following
legends, in addition to any other legend required to be placed thereon by
applicable federal or state securities laws:
(A) “THE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES
ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.”
(B) “TRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
(10) The
undersigned consents to the Company making a notation on its records or giving
instructions to any transfer agent of the Company in order to implement the
restrictions on transfer of the Shares set forth in this Section 2.
(k) Potential Loss of
Investment; Risk Factors. The undersigned understands that an
investment in the Shares is a speculative investment which involves a high
degree of risk and the potential loss of his entire investment. The
undersigned has considered the uncertainties and difficulties frequently
encountered by companies, such as the Company, in their early stages of
development. The undersigned understands and acknowledges that as a
result thereof, he may lose his entire investment in the
Company.
(l) Investment
Commitment. The undersigned's overall commitment to
investments which are not readily marketable is not disproportionate to the
undersigned's net worth, and an investment in the Shares will not cause such
overall commitment to become excessive.
(m) Receipt of
Information. The undersigned has received all documents,
records, books and other information pertaining to the undersigned’s investment
in the Company that has been requested by the undersigned.
(n) No
Reliance. Other than as set forth herein, the undersigned is
not relying upon any other information, representation or warranty by the
Company or any officer, director, stockholder, agent or representative of the
Company in determining to invest in the Shares. The undersigned has
consulted, to the extent deemed appropriate by the undersigned, with the
undersigned’s own advisers as to the financial, tax, legal and related matters
concerning an investment in the Shares and on that basis believes that his or
its investment in the Shares is suitable and appropriate for the
undersigned.
(o) No Governmental
Review. The undersigned is aware that no federal or state
agency has (i) made any finding or determination as to the fairness of this
investment, (ii) made any recommendation or endorsement of the Shares or the
Company, or (iii) guaranteed or insured any investment in the Shares or any
investment made by the Company.
(p) Price of
Shares. The undersigned understands that the price of the
Shares offered hereby was determined by the Company without reference to the
assets or book value of the Company. The undersigned further
understands that there is a substantial risk of further dilution of his or its
investment in the Company.
SECTION
4
4.1 Company’s Representations
and Warranties. The Company represents and warrants to the
undersigned as follows:
(a)
Organization of the
Company. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of
Nevada.
(b) Authority. (a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Shares; (b) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required; and (c) this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally
the
enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
(c) Exemption from Registration;
Valid Issuances. The sale and issuance of the Shares, in
accordance with the terms and on the bases of the representations and warranties
of the undersigned set forth herein, may and shall be properly issued by the
Company to the undersigned pursuant to any applicable federal or state law. When
issued and paid for as herein provided, the Shares shall be duly and validly
issued, fully paid, and nonassessable. Neither the sales of the Shares pursuant
to, nor the Company's performance of its obligations under, this Agreement shall
(i) result in the creation or imposition of any liens, charges, claims or other
encumbrances upon the Shares or any of the assets of the Company. The Shares
shall not subject the undersigned to personal liability by reason of the
ownership thereof.
(d) No General Solicitation or
Advertising in Regard to this Transaction. Neither the Company
nor any of its affiliates nor any person acting on its or their behalf (a) has
conducted or will conduct any general solicitation (as that term is used in Rule
502(c) of Regulation D) or general advertising with respect to any of the
Shares, or (b) made any offers or sales of any security or solicited any offers
to buy any security under any circumstances that would require registration of
the Common Stock under the Securities Act.
SECTION
5
5.1 Indemnity. The
undersigned agrees to indemnify and hold harmless the Company, its officers and
directors, employees and its affiliates and their respective successors and
assigns and each other person, if any, who controls any thereof, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by the undersigned to comply
with any covenant or agreement made by the undersigned herein or in any other
document furnished by the undersigned to any of the foregoing in connection with
this transaction.
5.2 Modification. Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
5.3 Notices. Any
notice, demand or other communication which any party hereto may be required, or
may elect, to give to anyone interested hereunder shall be sufficiently given if
(a) deposited, postage prepaid, in a United States mail letter box, registered
or certified mail, return receipt requested, addressed to such address as may be
given herein, (b) delivered personally at such address, (c) upon the expiration
of twenty four (24) hours after transmission, if sent by facsimile if a
confirmation of transmission is produced by the sending machine (and a copy of
each facsimile promptly shall be sent by ordinary mail), (d) upon the expiration
of twenty four
(24)
hours after transmission, if sent by email if a confirmation of transmission is
produced by the sending computer (and a copy of each email transmission promptly
shall be sent by ordinary mail) or (e) on the third business day, if sent by
overnight recognized courier, in each case to the parties at their respective
addresses set forth below their signatures to this Agreement (or at such other
address for a party as shall be specified by like notice; provided that the
notices of a change of address shall be effective only upon receipt
thereof).
5.4 Counterparts. This
Agreement may be executed through the use of separate signature pages or in any
number of counterparts and by facsimile, and each of such counterparts shall,
for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
Signatures may be facsimiles.
5.5 Binding
Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation
of the undersigned shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his heirs, executors,
administrators and successors.
5.6 Entire
Agreement. This Agreement and the documents referenced herein
contain the entire agreement of the parties and there are no representations,
covenants or other agreements except as stated or referred to herein and
therein.
5.7 Assignability. This
Agreement is not transferable or assignable by the undersigned.
5.8 Applicable Law; Arbitration;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to conflicts of law principles. Any dispute between or, action or
proceeding against any of the parties hereto under, arising out of or in any
manner relating to, this Agreement and the transactions contemplated herein
shall be submitted to and adjudicated by binding arbitration under the rules of
the American Arbitration Association (“AAA”). Such arbitration shall
be in New York, New York. Such arbitration shall be in New York, New York., If
there is any litigation regarding the arbitration or, for any reason
notwithstanding the foregoing two sentences, otherwise, then , without prejudice
to their rights under the forgoing two sentences, the parties hereto irrevocably
consent to the jurisdiction of the courts of the State of New York and of any
federal court located in such State in connection with any action or proceeding
arising out of or relating to this Agreement, any document or instrument
delivered pursuant to, in connection with or simultaneously with this Agreement,
or a breach of this Agreement or any such document or instrument. In any such
action or proceeding, each party hereto waives personal service of any summons,
complaint or other process and agrees that service thereof may be made in
accordance with Section 5.3. Within 30 days after such service, or
such other time as may be mutually agreed upon in writing by the attorneys for
the parties to such action or proceeding, the party so served shall appear or
answer such summons, complaint or other
process. EACH PARTY HERETO WAIVES TRIAL BY
JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY
BREACH OR ALLEGED BREACH HEREOF.
5.9 Pronouns. The
use herein of the masculine pronouns "him" or "his" or similar terms shall be
deemed to include the feminine and neuter genders as well and the use herein of
the singular pronoun shall be deemed to include the plural as well.
5.10 Further
Assurances. Upon request from time to time, the undersigned
shall execute and deliver all documents and do all other acts that may be
necessary or desirable, in the reasonable opinion of the Company or its counsel,
to effect the subscription for the Shares in accordance herewith.
[Remainder
of Page Intentionally Omitted; Signature Pages to Follow]
SIGNATURE PAGE
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year this
subscription has been accepted by the Company as set forth below.
Number of
Shares
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Subscribed
For:
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Print
Name of Subscriber:
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_______________
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By:
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(Signature
of Subscriber or
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Authorized
Signatory)
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Address:
Telephone:
Fax:
______________________________
Social
Security Number or other
Taxpayer
Identification Number
Fenario,
Inc. Regulation S Subscription Agreement
10
ACCEPTANCE
OF SUBSCRIPTION
_____________________________
Name of
Subscriber
ACCEPTED
BY:
By:____________________________
Name:
Title:
Date: ,
2007
Accepted
for
Number of Shares
Fenario,
Inc. Regulation S Subscription Agreement
11
