EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
May _____, 2004
Cell Power Technologies, Inc.
0000 00xx Xxxxxx
Xxxxxxxx XX 00000
Ladies and Gentlemen:
1.) The undersigned hereby tenders this subscription and applies for the
purchase of the number of the units (hereinafter, a "Unit") set forth
on the signature page of this agreement, with each Unit comprised of
32,000 shares of the Company's common stock, no par value per share
(the "Shares") and a five-year warrant (the "Warrants") to purchase
32,000 additional share of common stock at a per share exercise price
of $1.25, at a per Unit cost of $24,000. The minimum purchase is one
Unit ($24,000), provided, however, that a lesser amount may be
purchased in the discretion of the Company. Together with this
Subscription Agreement, the undersigned is delivering to the Company, a
check payable to "American Stock transfer & Trust Company, AS ESCROW
AGENT FOR CELL POWER TECHNOLOGIES, INC." in the full amount of the
purchase price for the Units which the undersigned is subscribing for
pursuant hereto, or funds by wire transfer as instructed by the
Company.
The Shares and Warrants to be purchased by the undersigned are part of
a private placement of securities (the "Private Placement") of up to
160 Units. The Units will be offered by the Company on a "best efforts
all or none" basis as to the Minimum Offering of $504,000 and
thereafter on a "best efforts" basis up to the Maximum Offering of
$3,000,000. There are a minimum number of 21 Units that must be sold in
order for the Private Placement to become effective. If all the Units
are sold, the Company will receive an aggregate of three million
dollars ($3,000,000) less the expenses of the Private Placement, which
management estimates will be approximately Fifty thousand ($50,000),
which does not include commissions and fees payable to a placement
agent.
2.) Representations and Warranties. In order to induce the Company to
accept this subscription, the undersigned hereby represents and
warrants to, and covenants with, the Company as follows:
(a) The undersigned has received and reviewed the Private
Placement Memorandum dated May 2004 (hereinafter, collectively
the "Offering Materials"), and except for the Offering
Materials, the undersigned has not relied upon any other
materials or literature relating to the offer and sale of the
Units;
(b) The undersigned 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
undersigned;
(c) The undersigned has such knowledge and expertise in financial
and business matters that the undersigned is capable of
evaluating the merits and risks involved in an investment in
the Units.
(d) The information provided by the investor in this Subscription
Agreement being delivered by the undersigned to the Company
herewith is true, complete and correct in all material
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respects, and the undersigned understands that the Company has
determined that the exemption from the registration provisions
of the Securities Act of 1933, as amended (the "Act"), which
is based upon non-public offerings, is applicable to the offer
and sale of the Units, based, in part, upon the
representations, warranties and agreements made by the
undersigned herein;
(e) Except as set forth in the Offering Materials, no
representations or warranties have been made to the
undersigned by the Company or by any agent, employee, or
affiliate of the Company, and in entering into this
transaction the undersigned is not relying upon any
information, other than that contained in the Offering
Materials and the results of independent investigation by the
undersigned;
(f) The undersigned understands that: (A) Neither the Units, the
Shares nor the Warrants have been registered under the Act or
the securities laws of any state, and are being offered by the
Company based upon an exemption from such registration
requirements for non-public offerings pursuant to Regulation D
under the Act; (B) the Units, Shares and Warrants are and will
be "restricted securities," as said term is defined in Rule
144 of the Rules and Regulations promulgated under the Act;
(C) Neither the Units, Shares or Warrants may be sold or
otherwise transferred unless they have been first registered
under the Act and all applicable state securities laws, or
unless exemptions from such registration provisions are
available with respect to said resale or transfer; (D) other
than as set forth in the Offering Materials, the Company is
under no obligation to register the Shares under the Act or
any state securities laws, or to take any action to make any
exemption from any such registration provisions available; (E)
the certificates for the Shares and Warrants will bear a
legend to the effect that the transfer of the securities
represented thereby is subject to the provisions hereof; and
(F) stop transfer instructions will be placed with the
Company's transfer agent, if any, for the Shares and Warrants;
(g) The undersigned is acquiring the Units solely for the account
of the undersigned, for investment purposes only, and not with
a view towards their resale or distribution;
(h) The undersigned will not sell or otherwise transfer any of the
Units, Shares or Warrants unless and until: (A) said
securities shall have first been registered under the Act and
all applicable state securities laws; or (B) the undersigned
shall have first delivered to the Company a written opinion of
counsel (which counsel and opinion (in form and substance)
shall be reasonably satisfactory to the Company), to the
effect that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state
securities laws;
(i) The undersigned has full power and authority to execute and
deliver this Subscription Agreement and to perform its
obligations hereunder, and this Subscription Agreement is a
legally binding obligation of the undersigned in accordance
with its terms;
(j) The undersigned meets the requirements of at least one of the
suitability standards for an "accredited investor," as such
term is defined in Regulation D of the Rules and Regulations
promulgated under the Act and as set forth in this
Subscription Agreement and as the undersigned has indicated in
the Accredited Investor Certification attached hereto;
(k) The undersigned has carefully reviewed the Risk Factors
associated with an investment in the Units outlined in the
Offering Materials and understands that the securities offered
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hereby are highly speculative and involve a high degree of
risk and should not be purchased by anyone who cannot afford
the loss of his entire investment; and
(l) The undersigned represents that it was not induced to purchase
the Units as a result of advertising or public solicitation by
the Company and that prompt written notice will be furnished
to the Company in respect of a change in its principal place
of business or principal residence, as appropriate.
JURISDICTIONAL NOTICE
Residents of All States:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
CERTAIN STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT
AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER
REGULATORY AUTHORITY. NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED
UPON OR ENDORSED THE MERITS OR THIS OFFERING OR THE ACCURACY OR
ADEQUACY OF THE OFFERING MATERIALS. ANY REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.
3.) The undersigned 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 Subscription Agreement where indicated. This
Subscription Agreement shall be null and void if the Company does not
accept it as aforesaid.
4.) The undersigned understands that the Company may, in its sole
discretion, reject this subscription and, in the event that the
offering to which the Offering Materials relates is oversubscribed,
offer partial Units 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.
5.) The undersigned 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 undersigned of any representation, warranty, or covenant made by
the undersigned.
6.) Neither this Subscription Agreement nor any of the rights of the
undersigned hereunder may be transferred or assigned by the
undersigned.
7.) This Subscription Agreement: (i) may only be modified by a written
instrument executed by the undersigned and the Company; (ii) sets forth
the entire agreement of the undersigned and the Company with respect to
the subject matter hereof; (iii) shall be governed by the laws of the
State of New York applicable to contracts made and to be wholly
performed therein; and (iv) shall inure to the benefit of, and be
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binding upon the Company and the undersigned and their respective
heirs, legal representatives, successors, and assignees.
8.) Unless the context otherwise requires, all personal pronouns used in
this Subscription Agreement, whether in the masculine, feminine or
neuter gender, shall include all other genders.
9.) 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: if to the undersigned, to the address set
forth on the signature page hereof; and if to the Company, to the
address provided above or to such other address as the Company or the
undersigned shall have designated to the other by like notice.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement
this ___ day of ___ _______________, 2004.
_________________ X $24,000 = ___________________________
No. of Units (Unit Price) Subscription Price
If the Investor is a PARTNERSHIP,
CORPORATION or TRUST:
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Signature
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Print Name of Subscriber Organization
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Print Name and Title of Person Signing
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(All Subscribers should please print information
below exactly as you wish it to appear
in the records of the Company)
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Name and capacity in which subscription is Taxpayer I.D. Number
made -- see below for particular requirements
Address: Address for notices, if different:
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Number and Street Number and Street
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City State Zip Code City State Zip Code
ACCEPTANCE OF SUBSCRIPTION
The foregoing subscription is hereby accepted by Cell Power Technologies, Inc.
this _____ day of __________ 2004, for _________ Units.
Cell Power Technologies, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: President
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