EXHIBIT 10.11
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SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement") made as of the date set forth on
tIle sigllature page hereof among, EMPIRE MINERALS CORP. (formerly known as
Xacord Corp.)., a Delaware corporation, having a place of business 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX 00000 (the "Company"), and the undersigned, as
ide11tified all the 'Signature Page' below (the "Subscriber" or "Investor").
WITNESSETH:
WHEREAS, the Company is offering up to an aggregate of twenty units (the
"Units"), with each Unit consisting of 100,000 shares of Common Stock of the
Company (the "Share(s)") at a price of $50,000 per Unit or $2,000,000 in total,
The Company has reserved right to increase the number of sllares sold in tllis
"Offering" (as hereinafter defined) or sell additional shares in one or more
similar offering at no less than the price per share herein if offered within 90
days from the date oftllis Offering.
WHEREAS, the minimum subscription by any single Subscriber silall be one
Unit provided tllat the Compally reserves the right to accept, at the
discretioll of the Company, subscriptions for fractional Units;
WHEREAS, the 'Offering' shall terminate at the Company's discretion without
notice to Subscriber or on such date on which all of the offered Units are sold.
The 'Offering' is not contingent upon the sale of allY minimum llunlber
ofUllits;
WHEREAS, the Compally is offering (the "Offering") the Ullits to a limited
number of "accredited investors" (as that term is defined by Rule 501(a) of
Regulation D ("Regulation D") ofthe Securities Act of 1933, as amended (the
"Act"); and
WHEREAS, the Subscriber desires to purchase the llunlber of Units set forth
on the Signature Page hereof on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
representations and covenants hereinafter set forth, the parties hereto do
hereby agree as follows:
ARTICLE I
SUBSCRIPTION FOR UNITS AND TERMS OF SUBSCRIPTION
Subject to the terms and conditions hereinafter set forth, Subscriber
hereby subscribes for and agrees to purchase from the Company, and the Company
agrees to sell to Subscriber, the number of Units as is set forth upon the
Signature Page hereof against payment made by personal or business check, or
money order made payable to Empire Minerals Corp. In connection with
the Subscription:
1.1 The Subscriber hereby authorizes and directs the Company to deliver the
certificate for the Shares to be issued to the Subscriber pursuant to this
Agreement to the address indicated on the Signature Page hereto.
1.2 The Company's agreement with each Subscriber is a separate agreement
and the sale of Units to each Subscriber is a separate sale.
1.3 The Subscriber understands, acknowledges and agrees with the Company
that this subscription may be rejected, in whole or in part, by the Company, in
the sole and absolute discretion of the Company, at any time subscribed for by
the Subscriber, notwithstanding prior receipt by the Subscriber of notice of
acceptance of the Subscriber's subscription. The Subscriber understands,
acknowledges and agrees with the Company that, except as otherwise set forth
herein, the subscription hereunder is irrevocable by the Subscriber, except as
required by law, and, as such, the Subscriber is not entitled to cancel,
terminate or revoke this Agreement or any agreements of the Subscriber
hereunder.
1.4 The Company may at any time: (i) increase the offering price for
subscriptions not executed; or, (ii) terminate the Offering.
ARTICLE II
REPRESENTATIONS BY SUBSCRIBER
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In addition to the representations and warranties set forth in Article V
and elsewhere in this Agreement, the Subscriber, represents, warrants and
acknowledges to the Company that:
2.1 The Subscriber recognizes that: (i) the purchase of the Units involves
a high degree of risk, is speculative and only investors who can afford the loss
of their entire investment should consider investing in the Company and/or the
Units; (ii) the Subscriber may not be able to liquidate its investment; (iii)
transferability of the Shares is extremely limited; and, (iv) in the event of a
disposition of the Shares, the Subscriber could sustain the loss of its entire
investment.
2.2 The Subscriber represents that the Subscriber is an "accredited
investor", as indicated by the Subscriber's responses to the questions contained
in Article V.
2.3 The Subscriber hereby acknowledges that it has been furnished with, (i)
the Confidential Memorandum Supplement containing additional information
relating to the Company, including risk factors (the "Confidential Memorandum").
This Agreement and the Confidential Memorandum are collectively referred to
herein as the "Offering Documents." The Subscriber has carefully reviewed the
Offering Documents and is familiar with and understands the terms of the
Offering, including the rights to which the Subscriber is entitled under this
Agreement. The Subscriber specifically acknowledges and is familiar with the
Risk Factors set forth in the Confidential Memorandum.
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2.4 The Subscriber further represents and warrants that the Subscriber has
been furnished by the Company during the course of this transaction with all
information regarding the Company which the Subscriber, as well as its
investment advisor, attorney and/or accountant, has requested or desired to
know, and has been afforded the Opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of the Company
concerning the terms and conditions of the Offering, and has received any
additional information which the Subscriber has requested concerning the terms
and conditions of the Offering and the Company.
2.5 The Subscriber has relied solely upon the information provided by the
Company in making the Subscriber's decision to invest in the Units and has not
relied upon any other representation or other information (whether oral or
written) from the Company, or any agent, employee or affiliate of the Company or
any other third party other than as set forth in the Offering, and the results
of Subscriber's own independent investigation. The Subscriber acknowledges and
agrees that it shall not be entitled to seek any remedies with respect to the
Offering from any party other than the Company.
2.6 The Subscriber represents that no Units were offered or sold to it by
means of any form of general solicitation or general advertising, and in
connection therewith the Subscriber did not: (A) receive or review any
advertisement, article, notice or other communication published in a newspaper
or magazine or similar media or broadcast over television or radio whether
closed circuit, or generally available; or (B) attend any seminar meeting or
industry investor conference whose attendees were invited by any general
solicitation or general advertising.
2.7 The Subscriber understands that the Units have not been registered
under the Act by reason of a claimed exemption under the provisions of the Act
which depends, in part, upon the Subscriber's investment intention. In this
connection, the Subscriber hereby represents that the Subscriber is purchasing
the Units for the Subscriber's own account for investment purposes only and not
o with a view toward the resale or distribution to others and has no contract,
undertaking, agreement or other arrangement, in existence or contemplated, to
sell, pledge, assign or otherwise transfer the Units to any other person.
2.8 The Subscriber consents to the placement of a legend on any certificate
or other document evidencing the Shares substantially as set forth below, that
such Shares have not been registered under the Act or any state securities or
"blue sky" laws and setting forth or referring to the restrictions on
transferability and sale thereof contained in this Agreement. The Subscriber is
aware that the Company will make a notation in o its appropriate records with
respect to the restrictions on the transferability of the Shares.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
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SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
2.9 The Subscriber agrees to supply the Company, within five business (5)
days after the Subscriber receives the request therefore from the Company, with
such additional information concerning the Subscriber as the Company deems
necessary or advisable.
2.10 The Subscriber understands, acknowledges and agrees with the Company
that the Offering is intended to be exempt from registration under the Act by
virtue of Section4(2) of the Act and the provisions of Regulation D thereunder,
which is in part dependent upon the truth, completeness and accuracy of the
statements made by the Subscriber and Subscriber will hold the Company harmless
from all liability, damages, costs and expenses resulting from any breach
thereof.
2.11 The Subscriber acknowledges that the information contained in the
Offering Documents or otherwise made available to the Subscriber is confidential
and non-public and agrees that all such information shall be kept in confidence
by the Subscriber and neither be used by the Subscriber for the Subscriber's
personal benefit (other than in connection with this Subscription) nor disclosed
to any third party for any reason, notwithstanding that the Subscriber's
Subscription may not be accepted by the Company.
2.12 The Company is under no obligation to, and there can be no assurance
that, the Company will receive or accept subscriptions for the aggregate number
of Units that may be sold by the Company pursuant to the Offering.
ARTICLE III
REPRESENTATIONS BY AND COVENANTS OF THE COMPANY
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3.1 The Company hereby represents and warrants to the Subscriber that,(i)
the Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to sell and issue the Shares
and perform its obligations with respect to the Agreement in accordance with the
terms hereof and (ii) when executed and delivered by the Company, the Agreement
will be duly executed and delivered by the Company.
ARTICLE IV
MISCELLANEOUS
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4.1 Any notice or other communication to the Company given hereunder shall
be deemed sufficient if in writing and sent by registered or certified mail,
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return receipt requested, or delivered by hand against written receipt
therefore. Notices shall be deemed to have been given or delivered on the date
of mailing, except notices of change of address, which shall be deemed to have
been given or delivered when received. The address for such notices and
communications shall be as follows:
If to the Company: Empire Minerals Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000
Attn.: Chief Executive Officer
If to a Subscriber: To the address set forth under each Subscriber's
name on the Signature Page hereto.
4.2 Except as otherwise provided herein this Agreement shall not be
changed, modified or amended except by a writing signed by the parties to be
charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
4.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them. The Subscriber may not assign its rights and/or obligations under
this Agreement without the express written consent of Company.
4.4 NOTWITHSTANDING THE PLACE WHERE THIS 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 NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. IN
THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE EXCLUSIVE FORUMS FOR
RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT ARE EITHER THE
SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK OR THE
FEDERAL COURTS FOR SUCH STATE AND COUNTY. THE PARTIES HEREBY IRREVOCABLY CONSENT
TO THE JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
4.5 The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect. If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, such provision shall be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
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4.6 It is agreed that a waiver by either party of a breach of any provision
of this Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.
4.7 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 Agreement.
4.8 This Agreement may be executed in two or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
4.9 The Subscriber agrees not to issue any o public statement with respect
to the Subscriber's investment or proposed investment in the Company or the
terms of any agreement or covenant between them and the Company without the
Company's prior written consent, except such disclosures as may be required
under applicable law or under any applicable order, rule or regulation.
4.10 The Subscriber represents and warrants that it has not engaged,
consented to nor authorized any broker, finder or intermediary to act on its
behalf, directly or indirectly, as a broker, finder or intermediary in
connection with the transactions contemplated by this Agreement. The Subscriber
hereby agrees to indemnify and hold harmless the Company from and against all
fees, commissions or other amounts owing to or claimed by any such person or
firm acting on behalf of the Subscriber hereunder.
4.11 Nothing in this Agreement shall create or be deemed to create any
rights in any person or entity not a party to this Agreement.
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ARTICLE V
CONFIDENTIAL INVESTOR QUESTIONNAIRE
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5.1 Each person who desires to invest in Company, purchasing Special
Warrants as pursuant to this Agreement and the Offering, must carefully and
accurately complete this Article V. The purpose of this questionnaire is to
allow the Company to make a reasonable determination as to whether each
prospective investor is qualified under applicable securities laws to purchase
shares and/or invest monies. This questionnaire completion and/or receipt of
this questionnaire does not constitute an offer to sell or a solicitation of an
offer to buy a security.
5.2 ACCREDITED INVESTOR. The Subscriber represents and warrants that he,
she or it is an 'Accredited Investor' and comes within one category marked
below, and that for any category marked, Subscriber has truthfully set forth,
where applicable, the factual basis or reason the Subscriber comes within that
category. ALL INFORMATION IN RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY
CONFIDENTIAL except as otherwise required by law. The undersigned agrees to
furnish any additional information which the Company deems necessary in order to
verify the answers set forth below.
Category A ____ The undersigned is an individual (not a partnership,
corporation, etc.), whose individual net worth, or joint net
worth with his or her spouse, presently exceeds $1,000,000.
Explanation. In calculating net worth you may include equity
in personal property and real estate, including your
principal residence, cash, short-term investments, stock and
securities. Equity in personal property and real estate
should be based on the fair market value of such property
less debt secured by such property.
Category B ____ The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of
$200,000.00 in each of the two most recent years, or joint
income with his or her spouse in excess of $300,000.00 in
each of those years (in each case including foreign income,
tax exempt income and full amount of capital gains and
losses but excluding any income of other family members and
any unrealized capital appreciation) and has a reasonable
expectation of reaching the same income level in the current
year.
Category C ____ The undersigned is a director or executive officer of the
Company which is issuing and selling the Shares.
Category D ____ The undersigned is a bank; a savings and loan association;
insurance company; registered investment company; registered
business development company; licensed small business
investment company ("SBIC"); or employee benefit plan within
the meaning of Title 1 of ERISA and (a) the investment
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decision is made by a plan fiduciary which is either a bank,
savings and loan association, insurance company or
registered investment advisor, or (b) the plan has total
assets in excess of $5,000,000 or (c) is a self directed
plan with investment decisions made solely by persons that
are accredited investors. (describe entity)
____________________________________________________________
Category E ____ The undersigned is a private business development company as
defined in section 202(a) (22) of the Investment Advisors
Act of 1940. (describe entity) _____________________________
____________________________________________________________
Category F ____ The undersigned is either a corporation, partnership,
Massachusetts business trust, or non-profit organization
within the meaning of Section 501(c)(3) of the Internal
Revenue Code, in each case not formed for the specific
purpose of acquiring the Shares and with total assets in
excess of $5,000,000. (describe entity) ____________________
____________________________________________________________
Category G ___ The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Shares where the purchase is directed by a
"sophisticated investor" as defined in Regulation
506(b)(2)(ii) under the Act.
Category H ____ The undersigned is an entity (other than a trust) in which
all of the equity owners are "accredited investors" within
one or more of the above categories. If relying upon this
Category alone, each equity owner must complete a separate
copy ofthis Agreement. (describe entity)
____________________________________________________________
Category I ____ The undersigned is not within any of the categories above
and is therefore not an accredited investor.
The Subscriber agrees to notify the Company at any time on or prior to the
purchase and issuance of the Shares in the event that the representations and
warranties herein, and in this Agreement, shall cease to be true, accurate and
complete.
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5.3 MANNER IN WHICH TITLE IS TO BE HELD (circle one)
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant witll Right of Survivorship (both parties must sign)
(d) *Partnership
(e) Tenants in Common
(f) *Company
(g) *Trust
(h) *Other
*If the Subscriber is an entity asterisked above, please complete the attached
Certificate of Signatory.
5.4 NASD AFFILIATION
Are you affiliated or associated with an NASD member firm (please check
one):
Yes ________ No _________
If Yes, please describe:
___________________________________________________________________________
___________________________________________________________________________
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SIGNATURE PAGE
Acknowledges and agrees to the terms of the foregoing Subscription Agreement.
Dated: ________________,2007.
By:________________________________ By:_____________________________________
Signature Signature (if purchasing jointly)
___________________________________ ________________________________________
Name Typed or Printed Name Typed or Printed
___________________________________ ________________________________________
Entity Name
___________________________________ ________________________________________
Address Address
___________________________________ ________________________________________
City, State and Zip Code City, State and Zip Code
___________________________________ ________________________________________
Telephone Telephone
___________________________________ ________________________________________
Facsimile Facsimile
___________________________________ ________________________________________
EIN Tax ID # or Social Security # EIN Tax ID # or Social Security #
___________________________________ X $100,000 - US$0.50
Number of Units Subscribed Purchase Price
For by Subscriber
Name in which Shares should be issued/held:.____________________________________
If not Subscriber, Company must be notified in advance and approve the same.
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This Subscription Agreement is agreed to and accepted as ___________, 2007.
EMPIRE MINERALS CORP.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman & ChiefE Executive
Officer
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