SUBSCRIPTION AGREEMENT
Exhibit
10.8
THIS
SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of the 14th
day
of
September, 2006, between Xxxxxxx Technologies Corporation, a Delaware
corporation (the “Company”), and the undersigned subscriber
(“Subscriber”).
RECITALS
WHEREAS,
the
Company obtained financing from Subscriber pursuant to (i) that certain
promissory note dated May 11, 2006, in the original principal sum of $100,000,
bearing an interest rate of 9% per year (the “Note”); and
WHEREAS,
as of
the date hereof, the outstanding principal balance of the Note, combined,
together with accrued interest was $103,131.57; and
WHEREAS,
Subscriber desires to surrender and cancel the Notes, to be marked
“paid-in-full” in consideration of the issuance by the Company of an aggregate
of 103,131 shares (the “Shares” or the “Securities”) of the Company’s common
stock, par value $0.001 per share (“Common Stock”) (the “Private
Sale”).
NOW
THEREFORE, for and in consideration of the mutual representations and covenants
herein, the parties hereby agree as follows:
1. Subscription
for Shares
Subject
to the terms and conditions hereinafter set forth, Subscriber hereby subscribes
for and irrevocably agrees to accept from the Company the number of Shares
set
forth on the signature page hereof, and the Company agrees to delivers such
Shares to Subscriber, in consideration of cancellation of the Note. The
certificates evidencing the Shares received by the Subscriber in consideration
of the cancellation of the Notes will be delivered by the Company to the
Subscriber as soon as practicable upon receipt of the original Note from
Subscriber.
2. Representations
by Subscriber
Subscriber
understands and agrees that the Company is relying and may rely upon the
following representations, warranties, and agreements made by Subscriber in
entering into this Agreement:
2.1 Subscriber
recognizes that the investment in the Securities involves a high degree of
risk
and is suitable only for persons of adequate financial means who have no need
for liquidity in this investment, in that (a) it may not be possible to
liquidate the investment in the event of emergency; (b) transferability is
extremely limited; and (c) in the event of a disposition, a complete loss of
investment could occur.
2.2 Subscriber
acknowledges that he (a) is competent to understand and does understand the
nature of the investment, and (b) is able to bear the economic risk of the
investment.
2.3 Subscriber
represents that he is an accredited investor as defined in Rule 501 of
Regulation D promulgated by the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Act”).
2.4 Subscriber
acknowledges that he has significant prior investment experience, including
investment in nonlisted and nonregistered securities, and that he has read
all
of the documents furnished or made available by the Company to evaluate the
merits and risks of the investment, recognizes the highly speculative nature
of
this investment, and is able to bear the economic risk hereby
assumed.
2.5. Subscriber
represents that all information regarding the Company which was requested or
desired has been furnished; that all other documents which could be reasonably
provided have been made available for inspection and review; and that the
Subscriber has been afforded the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions of the Private
Sale
and any additional information which has been requested.
2.6 Subscriber
hereby acknowledges that this Private Sale of Securities has not been registered
with the SEC because it is intended to be a private sale pursuant to Section
4(2) of the Act.
2.7 Subscriber
represents that the Securities are being purchased for his or her own account,
for investment, and not for distribution or resale to others. Subscriber agrees
that he will not sell, transfer, or otherwise dispose of the Securities or
any
portion thereof unless they are registered under the Act or unless an exemption
from such registration is available.
2.8 Subscriber
may, with the Company’s written consent, transfer the Securities if such request
for transfer is accompanied by an opinion of counsel satisfactory to the Company
that neither the sale nor the proposed transfer of the Securities results in
a
violation of the Act or any applicable state “blue sky” laws (collectively, the
“Securities Laws”). Subscriber agrees to hold the Company, its officer and
directors, and their respective heirs, representatives, successors, and assigns
harmless and to indemnify them against all liabilities, costs, and expenses
(including attorneys’ fees) incurred by them as a result of any sale or
distribution of the Securities by Subscriber in violation of any Securities
Laws
or any misrepresentation herein.
2.9 Subscriber
consents to the placement of a legend on the certificates evidencing the Shares
stating that they have not been registered under the Act and setting forth
or
referring to the restrictions on transferability and sale thereof.
3. Representations
by the Company
The
Company represents and warrants to Subscriber as follows:
3.1. The
Company is a corporation duly organized, existing, and in good standing under
the laws of Delaware and has the corporate power to conduct its
business.
3.2. The
execution, delivery, and performance of this Agreement by the Company has been
duly approved by the Board of Directors of the Company.
3.3. The
Securities have been duly and validly authorized and the Shares will be duly
and
validly authorized and issued, fully paid, and non-assessable.
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4. Investment
Restrictions
4.1 Subscriber
acknowledges that there is a very limited public market for the Shares.
Subscriber understands that, absent registration under the Act, the Securities
generally may only be publicly sold pursuant to Rule 144 (the “Rule”)
promulgated under the Act. The Rule permits, subject to all of its terms and
conditions, the public resale (in limited amounts) of securities acquired in
nonpublic offerings without having to satisfy the registration requirements
of
the Act. Accordingly, Subscriber recognizes that, notwithstanding the existence
of a public market for the Shares, he may not be able to take advantage of
the
resale provisions of the Rule and may be unable to publicly offer or sell any
of
the Securities.
4.2 Underwriting
Requirements. In connection with any underwritten public offering, the Company
shall not be required to include any of the Securities subscribed for hereunder
in such underwriting unless the Subscriber accepts the terms of the underwriting
as agreed upon between the Company and the underwriters for the offering (which
underwriters shall be selected by the Company).
5. Notices
to Subscriber
5.1 THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE ACT AND ARE BEING OFFERED AND
SOLD
IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR OTHER REGULATORY
AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED
THE
MERITS OF THE OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
5.2 The
Securities are subject to restrictions on transferability and resale and may
not
be transferred or resold except as permitted under the Act and applicable state
securities laws, pursuant to registration or exemption therefrom.
6. Miscellaneous
6.1 Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by registered or certified mail, return receipt requested,
overnight mail or courier, or telecopier, addressed to the Company at 0000
X.
000xx
Xxxxxx,
Xxxxx, Xxxxxxxx, 00000, and to each Subscriber at the address indicated on
the
signature page hereof. 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.
6.2 This
Agreement shall not be changed, modified, or amended except by a writing signed
by the party 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.
6.3 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 thereof and merges and supersedes all prior
discussions, agreements, and understandings of any and every nature between
them. Subscriber acknowledges and agrees that the Company is making no
representations in connection with the purchase and sale of the Securities
except as expressly set forth herein.
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6.4 This
Agreement and its validity, construction and performance shall be governed
in
all respects by the laws of Delaware applicable to agreements to be performed
wholly within Delaware, without regard to its conflicts of laws
provisions.
6.5 This
Agreement may be executed in counterparts. Upon the execution and delivery
of
this Agreement by the Subscriber this Agreement shall become a binding
obligation of the Subscriber with respect to the purchase of the Securities
as
herein provided.
IN
WITNESS WHEREOF the parties have executed this Agreement as of the day and
year
first written above.
Subscriber:
/s/
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Number
of
Shares: 103,131
Address:
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