EXHIBIT INDEX
3.1 Amended and Restated Certificate of Incorporation of the
Registrant *
3 .2 Bylaws of the Registrant **
5 Opinion of Levy & Levy, P.A.
10.6 Subscription Agreement dated March 24, 2000 between Almond
Resources and the Registrant for Private Placement
10.7 Subscription Agreement dated March 24, 2000 between Fidra
Holdings and the Registrant for Private Placement
10.8 Subscription Agreement dated March 24, 2000 between Xxxxx Xxxxxxx
and the Registrant for Private Placement
10.9 Subscription Agreement dated March 24, 2000 between Chivas
Holdings and the Registrant for Private Placement
10.10 Subscription Agreement dated March 24, 2000 between FMS
Distributors and the Registrant for Private Placement
10.11 Subscription Agreement dated March 24, 2000 between
Raffles Toho and the Registrant for Private Placement
23.1 Consent of Levy & Levy, P.A. (included in the opinion under
Exhibit 5)
23.2 Consent of Xxxxxx & Associates, P.A.
* Incorporated by reference from Exhibit 3(e) in the Annual Report
and Definitive Proxy Materials for the 1999 Annual Shareholders
Meeting for fiscal year ended December 31, 1999 filed with the SEC on
March 17, 2000.
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
$.40 PER SHARE
e*machinery, inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Gentlemen:
The undersigned acknowledges that he or she has received and
reviewed a copy of the Confidential Offering Memorandum dated March 6,
2000 of e*machinery, inc., a Texas Corporation, (the "Company"),
including the exhibits appended thereto; (the Confidential Offering
Memorandum, together with the exhibits thereto, is referred to herein
as the "Memorandum"). The Memorandum relates to the private placement
of 2,500,000 shares of common stock (the "Shares") of the Company
being offered herewith. The Company is offering the Shares on the
terms and in the manner described in the Memorandum.
It is understood that, upon the acceptance by the Company of the
undersigned's offer to purchase the number of Shares set forth herein,
the undersigned will receive a copy of this executed Subscription
Agreement executed on behalf of the Company.
1. Subscription. Subject to the terms and conditions hereof, the
undersigned hereby irrevocably subscribes for and agrees to purchase
450,000 Shares. Except as provided immediately below, the
undersigned tenders herewith a check (the "Check") in an amount of
$180,000.00, payable to the order of "Levy & Levy, P.A. Attorney
Trust Account". At the sole discretion of the Company, the Company may
allow less than 500,000 of shares to be purchased by an individual
investor.
The Check and this Subscription Agreement that is Exhibit A to the
Memorandum should be delivered to Levy & Levy, Plaza 1000, Suite 000,
Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx, 00000. After all of the 2,500,000
shares ($1,000,000) have been sold prior to the termination date, a
Closing shall occur upon receipt of good funds and acceptance of the
undersigned's offer to purchase the number of Shares set forth herein
(the date on which the undersigned's offer to purchase shares is
accepted being the "Closing Date"). The Company must also deliver
stock certificates at the Closing. If this subscription is rejected by
the Company, the proceeds in an amount equal to the amount tendered by
the investor shall be promptly returned in full to the undersigned,
without interest, and this Agreement shall be rendered by the Company
null and void and of no further force or effect.
2. Acceptance of Subscription. The undersigned understands and
agrees that this subscription is made subject to the following terms
and conditions:
(a) The Company shall have the right to reject this
subscription, in whole or in part; and
(b) The Company shall have no obligation to accept subscriptions
for Shares in the order received.
3. Representations and Warranties of the Undersigned.
The undersigned understands that the Shares are being offered and
sold pursuant to the exemption from registration provided for in
Section 4(2) of the Securities Act of 1933, as amended, (the "Act"),
and Rule 506 of Regulation D promulgated thereunder. The undersigned
further understands that he is purchasing the Shares without being
furnished any offering literature or prospectus other than the
Memorandum, that no documents relating to this private placement as
such have been filed with or reviewed by the Securities and Exchange
Commission or by any administrative agency charged with the
administration of the securities laws of any state. All documents,
records and books pertaining to this investment have been made
available to the undersigned and his representatives, including
without limitation his attorney and/or his accountant, and that the
books and records of the Company will be available upon reasonable
notice for inspection by investors during reasonable business hours at
its principal place of business. In addition the undersigned hereby
represents and warrants as follows:
(a) The undersigned (X) if an individual (I) is a citizen of the
United States, and at least 21 years of age, and (ii) is a
bonafide permanent resident of and is domiciled in the State
set forth on the signature page hereof and has no present
intention of becoming a resident of any other State or
jurisdiction, or (Y) if a partnership, trust, corporation or
other entity, has a principal place of business and is
domiciled in the State as set forth on the signature page
thereof and has no present intention of changing its
principal place of business or its domicile to any other
state or jurisdiction;
(b) The undersigned has read and fully considered the
section in the Memorandum Entitled "Risk Factors" and
understands that shares are extremely speculative
investments with a high degree of risk of loss, and
there will be no public market for the Shares and it
may not be possible to liquidate an investment in the
Shares; Common stock has not been registered under the
Act or State Securities Laws and may not be sold until
such Common Stock is registered under the Act or an
exemption from such registration is available.
(c) The undersigned is able (I) to bear the economic risk
of this investment, (ii) to hold the Shares
indefinitely, and (iii) presently to afford a complete
loss of this investment; the undersigned has adequate
means of providing for current needs and personal
contingencies, and has no need for liquidity in this
investment;
(d) The undersigned has such knowledge and experience in
financial and business matters that he/she is capable
of evaluating the merits and risks of an investment in
the Shares and of making informed investment decision;
(e) The undersigned confirms that, in making his decision
to purchase the Shares, he/she has relied solely upon
independent investigations made by him/her and/or by
his/her representatives, including his own professional
tax and other advisors, and that he and such
representatives and advisors have been given the
opportunity to ask questions of, and to receive answers
from, officers of the Company and Counsel to the
Company concerning the terms and conditions of this
offering, and to obtain any additional information, to
the extent such persons possess such information or can
acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information set
forth in the Memorandum;
(f) The Shares hereby subscribed for are being acquired by
the undersigned In good faith solely for his/her own
personal account, for investment purposes only, and are
not being purchased for resale, resyndication,
distribution, subdivision or fractionalization thereof;
the undersigned has no contract or arrangement with any
person to sell, transfer or pledge to any person the
Shares or any part thereof, any interest therein or any
rights thereto; the undersigned has no present plans to
enter into any such contract or arrangement; and he/her
understands that as a result he/she must bear the
economic risk of the investment for an indefinite
period of time because the Shares have not been
registered under the Act and, therefore, cannot be sold
unless they are subsequently registered under the Act
or an exemption from such registration under the Act is
available.
(g) The undersigned consents to the placement of a legend, until
the shares are registered, on the stock certificates
evidencing the Shares being purchased, which legend shall be
in a form substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION CAN BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933.
BY ACQUIRING THE SHARES REPRESENTED HEREBY THE HOLDER
REPRESENTS THAT HE HAS ACQUIRED SUCH SHARES FOR INVESTMENT
AND THAT HE WILL NOT SELL OR OTHERWISE DISPOSE OF THESE
SHARES WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH THE
AFORESAID ACT AND THE RULES AND REGULATIONS THEREUNDER.";
(h) FOR PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES
ONLY: If the undersigned is a partnership, corporation,
trust or other entity;
(i) The undersigned has enclosed with this Agreement
appropriate evidence of the authority of the individual
executing this Agreement to act on its behalf (i.e., if a
trust, a copy of the trust agreement; if a corporation, a
certified corporation resolution authorizing the signature
and a copy of the articles of incorporation; or if a
partnership, a copy of the partnership agreement),
(ii) The undersigned represents and warrants that it was not
organized or reorganized for the specific purpose of
acquiring Shares, and
(iii) The undersigned has the full power and authority to
execute this Subscription Agreement on behalf of
such entity and to make the representations and
warranties made herein on its behalf and this
investment in the Company has been affirmatively
authorized by the governing board of such entity and
is not prohibited by the governing documents of the
entity; and
(iv) The undersigned represents that he is an "accredited
investor," as such term is defined in Rule 501 of
Regulation D under the Act.
The foregoing representations and warranties and undertakings, are
made by the undersigned with the intent that they be relied upon in
determining his suitability as a purchaser of the Shares and the
undersigned hereby agrees that such representations and warranties
shall survive his purchase of the Shares. By executing this
Agreement, the undersigned represents that he has read and
acknowledged each of the representations set forth above.
If more than one person is signing this Agreement, each
representation and warranty and undertaking made herein shall be a
joint and several representation, warranty or undertaking of each such
person.
4. Representations and Warranties of the Company.
(a) The Company has been duly and validly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Texas. The Company has all
requisite power and authority, and all necessary
authorizations, approvals and orders required as of the date
hereof to own its properties and conduct its business as
described in the Memorandum and to enter into this
Subscription Agreement and to be bound by the provisions and
conditions hereof.
(b) All corporate action required to be taken by the Company
prior to all the issuance and sale of the Shares has been,
or prior to the Closing of the sale of the Shares, will have
been taken; the Shares will conform to the descriptions
thereof in the Memorandum; and the Shares, when issued and
sold in accordance with the Memorandum for the consideration
expressed therein shall be duly and validly issued, and, in
the case of the Common Stock, fully paid and nonassessable
and free of preemptive rights. The Shares have been duly and
validly authorized by proper corporate authority.
5. Transferability. The undersigned agrees not to transfer or
assign this Agreement, or any portion of his interest herein, and
further agrees that the assignment and transfer of the Shares acquired
pursuant hereto shall be made only in accordance with all applicable
laws.
6. Revocation. The undersigned agrees that he may not cancel,
terminate or revoke this Agreement or any agreement of the undersigned
made hereunder and that this Agreement shall survive the death or
disability of the undersigned and shall be binding upon the
undersigned's heirs, executors, administrators, successors and
assigns.
7. No Waiver. Notwithstanding any of the representations,
warranties, acknowledgments or agreements made herein by the
undersigned, the undersigned does not hereby or in any other manner
waive any rights granted to him under Federal or state securities
laws.
8. Miscellaneous.
(a) All notices or other communications given or made hereunder
shall be in writing and shall be delivered or mailed by
registered or certified mail, return receipt requested,
postage prepaid, to the undersigned at the address set forth
below or to the Company at the address set forth above.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
9. Waiver of Suitability Standards. The Company reserves the right
to review the suitability of any person (or entity) as the Company
deems appropriate under applicable law.
10. Continuing Effect of Representations, Warranties and
Acknowledgments. The undersigned represents that representations and
warranties contained in Section 3 hereof of the undersigned and the
Company represents that the representations of the Company contained
in Section 4 hereof are true and accurate as of the date of this
Subscription Agreement and shall be true and accurate as of the
Closing Date and shall survive the Closing. If, in any respect, such
representations, warranties and acknowledgments shall not be true and
accurate prior to the Closing Date, the undersigned, or the Company,
as the case may be, shall give immediate written notice of such fact
to the Company, in the case of representations, warranties and
acknowledgments of the undersigned in the case of the representations,
warranties and acknowledgments of the Company, as applicable,
specifying which representations, warranties and acknowledgments are
not true and accurate and the reasons therefor.
11. Registration Rights. If the Company is successfully acquired
by e*xxxxxxxxx.xxx, inc., then the Company and because of the
acquisition, e*xxxxxxxxx.xxx, inc., would be obligated to file a
Registration Statement on Form S-3 or Form SB-2 within ninety days
after Closing to register solely the 2,500,000 shares being sold
herewith. Thereafter, the Company will use its best efforts to
effectuate the effectiveness of such a Registration Statement. In
addition, if necessary, the Company shall give unlimited piggyback
registration rights.
12. Indemnification. The undersigned acknowledges that he
understands the meaning and legal consequences of the representations
and warranties contained in Section 3 hereof, and he hereby agrees to
indemnify and hold harmless the Company and its officers and directors
from and against any and all loss, damage or liability (including
costs and reasonable attorney fees) due to or arising out of a breach
of any representation, warranty or acknowledgment of the undersigned
contained in this Subscription Agreement.
It is understood that all documents, records and books pertaining
to this investment have been made available to the undersigned and his
attorney and/or accountant and that the books and records of the
Company will be available upon reasonable notice for inspection by
investors during reasonable business hours at its principal place of
business.
IN WITNESS WHEREOF, the undersigned has hereby executed this
Agreement this 24th day of March, 2000.
ALMOND RESOURCES /s/
Name of Subscriber (Print Name) Authorized Signature of Subscriber
AGREED TO AND ACCEPTED BY:
E*MACHINERY, INC.
By: /s/Xxxxxx X. X'Xxxx
Xxxxxx X. X'Xxxx, III
President and Chief Executive Officer
Dated: 3/24/00
