SUBSCRIPTION AGREEMENT [Under Regulation D of the Securities Act of 1933] DIGITALPOST INTERACTIVE, INC.
Exhibit 10.10
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT"), AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH SECURITIES MAY NOT BE
REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE REGISTERED
UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE EXEMPT FROM SUCH
REGISTRATION. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR BY ANY STATE
SECURITIES ADMINISTRATION OR REGULATORY AUTHORITY.
[Under
Regulation D of the Securities Act of 1933]
DIGITALPOST INTERACTIVE, INC.,
a Nevada corporation (hereinafter the "Company") and the undersigned
(hereinafter the “Subscriber”) agree as follows:
WHEREAS:
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A. The
Company desires to issue an aggregate of 2,540,000 shares of common stock,
par value $.001 (“Shares”) at an offering price of $1.5748031 per Share
for total proceeds of $4,000,000 (“Offering”);
and
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B. The
Company and Subscriber will effect multiple closings (each a “Closing”)
until all of the Shares are sold which is expected to be on May 11, 2007;
and
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C. The
Subscriber desires to acquire the Shares set forth on the signature page
hereof.
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NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants hereinafter set-forth,
the parties hereto do hereby agree as follows:
SUBSCRIPTION
FOR SHARES
1.1 Subject
to the terms and conditions hereinafter set-forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Shares as
is set-forth upon the signature page hereof at a price equal to $1.5748031 per
Share, and the Company agrees to sell such Shares to the Subscriber for said
purchase price subject to the Company's right to sell to the Subscriber such
lesser number of Shares as it may, in its sole discretion, deem necessary or
desirable. Upon execution, this subscription shall be irrevocable by
the Subscriber.
1.2 The
purchase price for the Shares subscribed to hereunder is payable by the
Subscriber prior to or contemporaneously with the execution and delivery of this
Subscription Agreement.
1.3 Any
acceptance by the Company of the Subscriber is conditional upon compliance with
all securities laws and other applicable laws of the jurisdiction in which the
Subscriber is resident. Each Subscriber will deliver to the Company
all other documentation, agreements, representations and requisite government
forms required by the lawyers for the Company as required to comply with all
securities laws and other applicable laws of the jurisdiction of the
Subscriber. The Company will not grant any registration or other
qualification rights to any Subscriber.
1.4 The
Subscriber acknowledges and agrees that all share certificates represented in
the Shares will be endorsed with the following legend in accordance with the
Act:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT PROVIDED BY REGULATION D
PROMULGATED UNDER THE ACT. SUCH SECURITIES MAY NOT BE REOFFERED
FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION D, PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE ACT,
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT. HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE ACT”.
REPRESENTATIONS
AND WARRANTIES BY SUBSCRIBER
2.1 Subscriber
hereby severally represents and warrants to the Company the
following:
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(A)
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Subscriber
recognizes that the purchase of Shares subscribed to herein involves a
high degree of risk in that the Company has only recently commenced its
proposed business and may require substantial funds in addition to the
proceeds of this private placement;
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(B)
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An
investment in the Company is highly speculative and only investors who can
afford the loss of their entire investment should consider investing in
the Company and the Shares;
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(C)
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Subscriber
has been delivered a private placement offering memorandum (the
"Memorandum") furnished by the Company to the Subscriber and has had full
opportunity to review the Memorandum with the Subscriber’s legal and
financial advisers prior to execution of this Subscription
Agreement;
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(D)
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Subscriber
has such knowledge and experience in finance, securities, investments,
including investment in non-listed and non-registered securities, and
other business matters so as to be able to protect its interests in
connection with this transaction.
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(E)
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Subscriber
is not a "U.S. Person" as defined by Regulation D of the Act and is not
acquiring the Shares for the account or benefit of a U.S.
Person.
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A “U. S. Person" is defined by
Regulation D of the Act to be any person who is:
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(1)
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any
natural person resident in the United
States;
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(2)
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any
partnership or corporation organized or incorporated under the laws of the
United States;
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(3)
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any
estate of which any executor or administrator is a U.S.
person;
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(4)
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any
trust of which any trustee is a U.S.
person;
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(5)
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any
agency or branch of a foreign entity located in the United
States;
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(6)
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any
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporate, or (if
an individual) resident in the United States;
and
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(7)
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any
partnership or corporation if.
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1. organized or
incorporated under the laws of any foreign jurisdiction; and
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2. formed
by a U.S. person principally for the purpose of investing in securities
not registered under the Act, unless it is organized or incorporated, and
owned, by accredited investors [as defined in Section 230.501 (a) of the
Act] who are not natural persons, estates or
trusts.
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(F)
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Subscriber
hereby acknowledges that the offering of the Shares has not been reviewed
by the United States Securities and Exchange Commission (the "SEC") and
that the Shares are being issued by the Company pursuant to an exemption
from registration provided by Regulation D pursuant to the United States
Securities Act.
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(G)
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Subscriber
is acquiring the Shares as principal for the Subscriber's own benefit
without a view toward resale of the
securities;
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(H)
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Subscriber
is not aware of any advertisement of the
Shares.
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(I)
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the
amount of the Subscriber’s investment does not exceed 10% of Subscriber’s
net worth and the Subscriber has sufficient net worth to sustain a
complete loss of Subscriber’s investment in the
Company;
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(J)
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Subscriber
is acquiring the Shares subscribed to hereunder as an investment for
Subscriber's own account, not as a nominee or agent, and not with a view
toward the resale or distribution of any part thereof, and Subscriber has
no present intention of selling, granting any participation in, or
otherwise distributing the same;
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(K)
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Subscriber
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person,
or to any third person, with respect to any of the Shares sold
hereby;
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(L)
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Subscriber
has full power and authority to enter into this Agreement which
constitutes a valid and legally binding obligation, enforceable in
accordance with its terms;
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(M)
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Subscriber
has satisfied himself or herself as to the full observance of the laws of
his or her jurisdiction in connection with any invitation to subscribe for
the Shares and/or any use of this Agreement, including: (i) the legal
requirements within his/her jurisdiction for the purchase of the Shares,
(ii) any foreign exchange restrictions applicable to such purchase, (iii)
any governmental or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, that may be relevant to
the purchase, holding, redemption, sale, or transfer of the
Shares.
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REPRESENTATIONS
BY THE COMPANY
3.1 The
Company represents and warrants to the Subscriber that:
(A) The
Company is a corporation duly organized, existing and in good standing under the
laws of the State of Nevada and has the corporate power to conduct the business
which it conducts and proposes to conduct.
(B) Upon
issue, the Shares will be duly and validly issued, fully paid and non-assessable
common Shares in the capital of the Company.
TERMS
OF SUBSCRIPTION
4.1 Pending
acceptance of this subscription by the Company, all funds paid hereunder shall
be deposited by the Company and immediately available to the Company for its
general corporate purposes. In the event the subscription is not
accepted, the subscription funds will constitute a non-interest bearing demand
loan of the Subscriber to the Company.
4.2 The
Company agrees not to file a registration statement with the SEC on Form S-8 for
one (1) year from the date of the final Closing, unless waived by
Subscriber.
4.3 In
the event the Company files a Form SB-2 registration statement with the SEC,
Subscriber shall be granted “Piggyback Registration rights.” The
Company will give Subscriber at least fifteen (15) days' prior written notice of
its intention so to do. Upon the written request of the Subscriber, received by
the Company within ten (10) days after the giving of any such notice by the
Company, to register any of the Shares, the Company will cause such Shares as to
which registration shall have been so requested to be included with the
securities to be covered by the registration statement proposed to be filed by
the Company.
4.4 The
Company agrees after the final Closing and receipt of the full $4,000,000.00
from Subscriber, that the Company will not need further funding for operations,
until at least one (1) year from the date of the final
Closing. Notwithstanding the foregoing, if funding is required for an
acquisition or merger at any time, the Company will give the Subscriber the
First Right of Refusal in writing to fully fund participate or in such financing
on the terms being offered.
4.5 Subscriber
hereby authorizes and directs the Company to deliver the securities to be issued
to such Subscriber pursuant to this Subscription Agreement to the Subscriber’s
address indicated herein.
4.4 Subscriber
acknowledges that the Shares are being offered on a "best efforts" basis and are
not subject to any minimum subscription requirements.
4.5 Subscriber
agrees to resell the Shares only in accordance with the provisions of Regulation
D of the Act, pursuant to registration under the Act, or pursuant to an
available exemption from registration pursuant to the Act.
4.6 Subscriber
agrees not to engage in hedging transactions with regard to the Shares unless in
compliance with the Act.
MISCELLANEOUS
5.1 Any
notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by registered or certified mail, return receipt requested,
addressed to the Company, at its office at 0000 Xx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, XX 00000 and to the Subscriber at his address indicated on the last page
of this Subscription Agreement. Notices shall be deemed to have been given on
the date of mailing, except notices of change of address, which shall be deemed
to have been given when received.
5.2 Notwithstanding
the place where this Subscription Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions
hereof shall be construed in accordance with and governed by the laws of the
State of Nevada.
5.3 The
parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
ACCREDITED
INVESTOR STATUS
6.1 The
Subscriber represents and warrants to the Company that:
The
Subscriber is an “Accredited Investor” as defined by Rule 501 of Regulation D of
the 1933 Act.
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Initials
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Initials
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The
Subscriber acknowledges having reviewed and considered the definition of
“Accredited Investor” attached to this Subscription Agreement on page 6.
Subscriber also acknowledges that it is not the intent of the Company to sell
any Shares to any non-accredited investors and that if Subscriber is not an
accredited investor, Subscriber should not be purchasing any
Shares.
IN WITNESS WHEREOF, this
Subscription Agreement is executed as of the ___day of ________
2007
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Number
of Shares Subscribed For:
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Signature
of Subscriber:
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Name
of Subscriber:
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Address
of Subscriber:
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Subscriber’s
Social Security/EIN/Tax ID No.
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ACCEPTED
BY: DIGITALPOST INTERACTIVE INC.
Signature
of Authorized
Signatory: ______________________________________________________
Name of
Authorized
Signatory: ______________________________________________________
Position
of Authorized
Signatory: ______________________________________________________
Date of
Acceptance: ______________________________________________________
Accredited Investor
Questionnaire
The
Subscriber will be an "Accredited Investor" as such term is defined in Rule 501
of Regulation D promulgated under the United States Securities Act of 1933, as
amended (the "Act") if the Subscriber is any of the following:
(1) Any
natural person whose individual net worth, or joint net worth with that person's
spouse, at the time of his purchase, exceeds $1,000,000;
(2) Any
natural person who had an individual income in excess of $300,000 in each of the
two most recent years or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching the
same income level in the current year;
(3) Any
director, executive officer of the Company;
(4) Any trust
with total assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Rule 503(b)(2)(ii);
(5) Any
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
(6) Any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, or similar business trust, or partnership. not formed for the
specific purpose of acquiring the securities offered, with total assets in
excess of $5,000,000;
(7) Any
bank as defined in Section 3(a)(2) of the Act or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the Act
whether acting in its individual or fiduciary capacity;
(8) Any
insurance company as defined in Section 2(13) of the Act;
(9) Any
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that
Act;
(10) Any
Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958;
(11) Any
plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
$5,000,000;
(12) Any
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, if the
employee benefit plan has total assets in excess of $5,000,000, or if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors; and
(13) Any
entity in which all of the equity owners are accredited
investors.
