SUBSCRIPTION AGREEMENT
INFOTOPIA, INC.
Infotopia, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned (hereinafter referred to as the "Subscriber") hereby
subscribes for the number of shares of the common stock, par value $.001 (the
"Shares") of Infotopia, Inc. (the "Company") set forth on the signature pages
hereof (page 8 for an individual and joint purchasers and pages 9 and 11 for
Corporations, Trusts and Partnerships). The entire purchase price is due and
payable upon the execution of this Subscription Agreement, and shall be paid by
check, subject to collection, to the order of "Infotopia, Inc." The Company
shall have the right to reject this subscription in whole or in part.
In order to participate in this offering, prospective investors are
required to complete, sign and return to the Company, at its address above,
Attn: Xxxxx Xxxxxxxxx, Secretary: (i) two signed copies of the Subscription
Agreement and all other documents required to be executed in connection with the
issuance of the Shares (the "Subscription Documents") and (ii) payment by check
to the order of "Infotopia, Inc."
At closing, the Company will cause to be issued to each Subscriber the
Shares and deliver them to the Subscriber at the address appearing on the
signature page of this Subscription Agreement.
Acceptance of subscriptions will be evidenced by the Company's execution
of a copy of each Subscriber's Subscription Agreement, and the transmittal
thereof to the Subscriber. The Company reserves the right to limit or reject
subscriptions for any reason.
The undersigned acknowledges that the Shares will not be registered
under the Securities Act of 1933, as amended (the "1933 Act"), or the securities
laws of any State, that absent an exemption from registration contained in those
laws, the issuance and sale of the Shares would require registration, and that
the Company's reliance upon any such exemption is invariably based upon the
undersigned's representations, warranties, and agreements
contained in this Subscription Agreement.
1. Representations and Warranties of Subscriber.
The undersigned represents, warrants, and agrees as follows:
(a) This Subscription Agreement is irrevocable.
(b) They have carefully read and understand the terms of this
Subscription Agreement. In addition, they have been given the opportunity to
conduct a "due diligence" inquiry into the business of the Company, to ask
questions of, and receive answers from, the Company and its management
concerning the terms and conditions of the Offering and to obtain such
additional written information, to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of same, as the undersigned desires in order to evaluate
their investment.
(c) They are aware that the purchase of the Shares is a speculative
investment, involving a high degree of risk and that there is no guarantee that
they will realize any gain from this investment, and that their entire
investment could be lost.
(d) They understand that no federal or state agency has made any finding
or determination regarding the fairness of this Offering or any recommendation
or endorsement of the Offering.
(e) They are purchasing the Shares for their own account, with the
intention of holding the Shares indefinitely, with no present intention of
dividing or allowing others to participate in this investment or of reselling or
otherwise participating, directly or indirectly, in a distribution of the Shares
and shall not make any sale, transfer, or pledge thereof without registration
under the 1933 Act and any applicable securities laws of any state or unless an
exemption from registration is available under those laws.
(f) They, if an individual, has adequate means of providing for their
current needs and personal and family contingencies and has no need for
liquidity in their investment in the Shares. They have no reason to anticipate
any material change in their personal financial condition for the foreseeable
future.
(g) The Subscriber is an "Accredited Investor" as that term is defined
in Section 2(15) of the 1933 Act and Rule 501 of Regulation D promulgated
thereunder. Specifically an Accredited Investor is:
(i) A bank defined in Section 3(a)(2) of the Act, or a
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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; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934; an insurance company as defined in Section 2(13) of the Act; an
investment company registered under the Investment Company Act of 1940 (the
"Investment Company Act") or a business development company as defined in
Section 2(a)(48) of the Investment Company Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(3)
or (d) of the Small Business Investment Act of 1958; a 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 greater than $5,000,000; an employee
benefit plan within the meaning of the Employee Retirement Income Security Act
of 1974 ("ERISA"), if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or a registered investment advisor, or if the
employee benefit plan has total assets greater than $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors.
(ii) A private business development company as defined in
Section 202(a)(22) of the Investment Adviser Act of 1940.
(iii) An organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets greater than $5 million.
(iv) a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his or her purchase exceeds $1
million. (California and Massachusetts residents: please see Section 3(b)
below.)
(v) A natural person who had an individual income greater than
$200,000 in each of the two most recent years or joint income with that person's
spouse greater than $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year.
(vi) A trust, with total assets greater than $5 million not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) (i.e., a person who has such
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knowledge and experience in financial and business matters that they are capable
of evaluating the merits and risks of the prospective investment.)
(vii) an entity in which all of the equity owners are accredited
investors. (If this alternative is checked, the Subscriber must identify each
equity owner and provide statements signed by each demonstrating how each is
qualified as an accredited investor.)
(h) They are financially able to bear the economic risk of this
investment, including the ability to hold the Shares indefinitely or to afford a
complete loss of their investment in the Shares.
(i) Their overall commitment to investments which are not readily
marketable is not disproportionate to their net worth, and the investment in the
Shares will not cause such overall commitment to become excessive. The
undersigned understands that the statutory basis on which the Shares are being
sold to him and to others would not be available if the undersigned's present
intention were to hold the Shares for a fixed period or until the occurrence of
a certain event. The undersigned realizes that in the view of the Securities and
Exchange Commission ("SEC"), a purchase now with a present intent to resell by
reason of a foreseeable specific contingency or any anticipated change in the
market value, or in the condition of the Company, or that of the industry in
which the business of the Company is engaged or in connection with a
contemplated liquidation, or settlement of any loan obtained by the undersigned
for the acquisition of the Shares, and for which the Shares may be pledged as
security or as donations to religious or charitable institutions for the purpose
of securing a deduction on an income tax return, would, in fact, represent a
purchase with an intent inconsistent with the undersigned's representations to
the Company, and the SEC would then regard such sale as one for which no
exemption from registration is available. The undersigned will not pledge,
transfer or assign this Subscription Agreement.
(j) The funds provided for this investment are either separate property
of the undersigned, community property over which the undersigned has the right
of control, or are otherwise funds as to which the undersigned has the sole
right of management.
(k) 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 Subscription Agreement appropriate evidence
of the authority of the individual executing this Subscription Agreement to act
on its
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behalf (e.g. if a trust, a certified copy of the trust agreement; if a
corporation, a certified corporate resolution authorizing the signature and a
certified copy of the articles of incorporation; or if a partnership, a
certified 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 (iv) this
investment in the Company has been affirmatively authorized, if required, by the
governing board of such entity and is not prohibited by the governing documents
of the entity.
(l) The address shown under the undersigned's signature at the end of
this Subscription Agreement is the undersigned's principal residence if they are
an individual, or its principal business address if a corporation or other
entity.
(m) They have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Shares.
(n) They acknowledge that the certificate for the Shares will contain a
legend substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER
THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAS BEEN
ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND
IN RELIANCE ON STATUTORY EXEMPTIONS UNDER THE 1933 ACT, AND UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT
UNDER PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; AND IN THE CASE
OF AN EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT REQUIRE
REGISTRATION OF THESE SECURITIES.
(o) They expressly acknowledge and understand that the Company is
relying upon the undersigned's representation contained in the Subscription
Agreement and Purchaser Questionnaire.
(p) They understand the meaning and legal consequences of the
representations and warranties which are contained herein and hereby agrees to
indemnify, save and hold the Company and its
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officers, directors and counsel harmless from and against any and all claims or
actions arising out of a breach of any representation, warranty or
acknowledgment of the undersigned contained in any Subscription Document. Such
indemnification shall be deemed to include not only the specific liabilities or
obligation with respect to which such indemnity is provided, but also all
reasonable costs expenses, counsel fees and expenses of settlement relating
thereto, whether or not any such liability or obligation shall have been reduced
to judgment.
2. Representations and Warranties of the Company.
The Company represents, warrants and covenants as follows that it is
duly and validly incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Nevada and 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; to enter
into this Subscription Agreement; to issue the Shares, and to be bound by the
provisions and conditions hereof.
3. General
(a) Any notice, declaration or other communications required or
authorized to be given by any party under this Subscription Agreement to any
other party shall be in writing and shall be personally delivered, sent by
facsimile transmission (with a copy by ordinary mail in either case) or
dispatched by courier, addressed to the other party at the address first above
written if to the Company and to the address on the signature page to this
Subscription Agreement, if to the Subscriber or such other address as shall be
specified by the parties hereto by notice in accordance with the provisions of
this section. Any notice shall operate and be deemed to have been served, if
personally delivered or sent by fax on the next following business day, and if
by courier, on the fifth following business day.
(b) Except as otherwise specifically provided for hereunder, no party
shall be deemed to have waived any of their or its rights hereunder or under any
other agreement, instrument or papers signed by any of them with respect to the
subject matter hereof unless such waiver is in writing signed by the party
waiving said right. A waiver on any one occasion with respect to the subject
matter hereof shall not be construed as a bar to, or waiver of, any right or
remedy on any future occasion. All rights and remedies with respect to the
subject matter hereof, whether evidenced hereby or by any other agreement,
instrument, or paper, will be cumulative, and may be exercised separately or
concurrently.
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(c) The parties have not made any representations or warranties with
respect to the subject matter hereof not set forth herein, and this Subscription
Agreement, together with any instruments executed simultaneously herewith,
constitutes the entire agreement between them with respect to the subject matter
hereof. All understandings and agreements heretofore had between the parties
with respect to the subject matter hereof are merged in this Subscription
Agreement and any such instrument, which alone fully and completely expresses
their agreement.
(d) This Agreement may not be changed, modified, extended, terminated or
discharged orally, but only by an agreement in writing, which is signed by all
of the parties to this Agreement.
(e) The parties agree to execute any and all such other and further
instruments and documents, and to take any and all such further actions
reasonably required to effectuate this Subscription Agreement and the intent and
purposes hereof.
(f) This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the undersigned hereby
consents to the jurisdiction of the courts of the State of New York and/or the
United States District Court for the Southern District of New York.
(g) This Agreement may be in any number of counterparts, each of which
shall be deemed an original and enforceable against the parties actually
executing such counterpart, and all of which together shall constitute one and
the same instrument.
[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
and by the Company on the respective dates set forth below.
Number of Shares Price Per Share Amount of Purchase Price
x =
------------------------
Individual Signature(s):
------------------- --------------------------
Date Signature of Subscriber
------------------------ --------------------------
Social Security No. Printed Name
------------------------ --------------------------
Telephone No. Street
--------------------------
City State Zip
------------------------ --------------------------
Date Signature of Co-Subscriber
------------------------ --------------------------
Social Security No. Printed Name
------------------------ --------------------------
Telephone No. Street
--------------------------
City State Zip
Subscription Accepted by:
Infotopia, Inc.
By: Date:
---------------------- -------------------
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IN WITNESS WHEREOF, this Agreement has been executed by the Subscriber
and by the Company on the respective dates set forth below.
Number of Shares Price Per Share Amount of Purchase Price
---------------- --------------- ------------------------
38,000,000 x $.05 = $950,000
For Corporations, Trusts and Partnerships:
THOMSON KERNAGHAN, LTD.
By:/s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title:
(Authorized signatory)
Date: January 3, 2002
Tax Identification No.:
Telephone No.:
Address: 000 Xxxxxxxx Xx. X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0 XXXXXX
Subscription Accepted by:
Infotopia, Inc.
By:/s/ Xxxxxx Xxxxx Date: January 3, 2002
---------------- --------------------------------
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SPECIAL SUBSCRIPTION INSTRUCTIONS FOR CORPORATE,
PARTNERSHIP, TRUST, AND JOINT PURCHASERS
If the subscriber is a corporation, partnership, trust, or other entity
or joint purchaser, the following additional instructions must be followed.
INFORMATION ADDITIONAL TO THAT REQUESTED BELOW MAY ALSO BE REQUIRED BY THE
COMPANY IN SOME CASES.
I. Certificate. The subscriber must date and sign the Certificate below,
and, if requested by the Company, the subscriber may also be required to provide
an opinion of counsel to the same effect as this Certificate or a copy of (a)
the corporation's articles of incorporation, bylaws and authorizing resolution,
(b) the partnership agreement, or (c) the trust agreement, as applicable.
II. Subscription Agreement
A. Corporations. An authorized officer of the corporation must
date, sign, and complete the Subscription Agreement with information concerning
the corporation. The officer should print the name of the corporation above
their signature, and print their name and office below their signature.
B. Partnerships. An authorized partner must date, sign, and
complete the Subscription Agreement with information concerning the partnership.
The partner should print the name of the partnership above their signature, and
print their name and the words "general partner" below their signature.
C. Trusts. In the case of a trust, the authorized trustee should
date, sign, and complete the Subscription Agreement with information concerning
the trust. The trustee should print the name of the trust above their signature,
and print their name and the word "trustee" below their signature. In addition,
an authorized trustee should also provide information requested in the
Subscription Agreement as it pertains to him as an individual.
D. Joint Ownership. In all cases, each individual must date,
sign, and complete the Subscription Agreement. Joint investors must state if
they are purchasing the Shares as joint tenants with the right of survivorship,
tenants in common, or community property, and each must execute the Subscription
Agreement Signature Page.
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CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, AND JOINT PURCHASERS
If the subscriber is a corporation, partnership, trust, joint
purchaser, or other entity, an authorized officer, partner, or trustee must
complete, date, and sign this Certificate.
CERTIFICATE
I hereby certify that:
a. The subscriber has been duly formed and is validly existing
and has full power and authority to invest in Infotopia, Inc.
b. The Subscription Agreement has been duly and validly
authorized, executed, and delivered by the subscriber and, upon
acceptance by Infotopia, Inc. will constitute the valid, binding, and
enforceable obligation of the subscriber.
Dated: January 3, 2002
--------------- ----------------------------------
Name of corporation, partnership, trust
or joint purchases (please print)
THOMSON KERNAGHAN, LTD.
----------------------------------
Signature and title of authorized officer,
partner, trustee, or joint purchaser
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title:
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