Exhibit 4.3
CHINA GRANITE CORPORATION
RESTRICTED COMMON STOCK AT $3.00 PER SHARE
SUBSCRIPTION AGREEMENT
1. SUBSCRIPTION:
(a) The undersigned (individually and/or collectively, the "PARTICIPANT")
hereby applies to purchase shares of restricted common stock (the "SHARES" or
the "COMMON STOCK") of China Granite Corporation, a Nevada corporation (the
"COMPANY"), in accordance with the terms and conditions of this Subscription
Agreement (the "SUBSCRIPTION").
(b) Before this subscription for the Shares is considered, the Participant
must complete, execute and deliver to the Company this Subscription.
(c) This Subscription is irrevocable by the Participant.
(d) This Subscription is not transferable or assignable by the
Participant.
(e) This Subscription may be rejected in whole or in part by the Company
in its sole discretion. In the event the Company rejects this Subscription, all
funds and documents tendered by the Participant shall be returned.
2. CLOSING. The date and time of the issuance and sale of the Shares (the
"CLOSING DATE") shall be at 10:00 a.m., on ____________, 2004 or at such other
date as the Company and the Participants may agree.
3. REPRESENTATIONS BY PARTICIPANT. In consideration of the Company's
acceptance of the Subscription, I make the following representations and
warranties to the Company and to its principals, jointly and severally, which
warranties and representations shall survive any acceptance of my subscription
of the Shares:
(a) Prior to the time of purchase of any Shares, I received a copy of the
Private Placement Memorandum, dated _____________, 2004 (the "Memorandum"),
relating to the offering of the Shares, and I have had the opportunity to ask
questions and receive any additional information from persons acting on behalf
of the Company to verify my understanding of the terms thereof and of the
Company's business and status thereof, and that no oral information furnished to
the undersigned or my advisors in connection with my subscription of the Shares
has been in any way inconsistent with other documentary information provided.
(b) I acknowledge that I have not seen, received, been presented with, or
been solicited by any leaflet, public promotional meeting, newspaper or magazine
article or advertisement, radio or television advertisement, or any other form
of general advertising or general solicitation (as those terms are defined in
Regulation D of the United States Securities Act of 1933, as amended (the
"SECURITIES ACT")) with respect to the Shares.
CHINA GRANITE CORPORATION
1 Subscription Agreement
(c) The Shares are being purchased for my own account, and not on behalf
of any other person or for the account of another "accredited investor" (as such
term is defined in Rule 501(a) of Regulation D promulgated under the Securities
Act) ("ACCREDITED INVESTOR") with respect to which I exercise sole investment
discretion, for long-term investment and not with a view to immediately re-sell
the Shares. No other person or entity will have any direct or indirect
beneficial interest in, or right to, the Shares.
(d) I, or my agents or investment advisors, (i) have such knowledge and
experience in financial and business matters that will enable me to utilize the
information made available to me in connection with the purchase of the Shares
to evaluate the merits and risks thereof and to make an informed investment
decision and (ii) am able, without impairing my financial condition, to hold
such Shares for an indefinite period of time and to bear the economic risks of,
and withstand a complete loss of, such investment.
(e) I acknowledge that the Shares have not been registered under the
Securities Act, or qualified under any applicable state securities laws, in
reliance, in part, on my representations, warranties and agreements made herein.
(f) Other than the rights specifically set forth in this Subscription, I
represent, warrant and agree that the Company and the officers of the Company
(the "COMPANY'S OFFICERS") are under no obligation to register or qualify the
Shares under the Securities Act or under any state securities law, or to assist
the undersigned in complying with any exemption from registration and
qualification.
(g) I represent that I meet the criteria for participation because (i) I
have a preexisting personal or business relationship with the Company or one or
more of its partners, officers, directors or controlling persons or (ii) by
reason of my business or financial experience, or by reason of the business or
financial experience of my financial advisors who are unaffiliated with, and are
not compensated, directly or indirectly, by the Company or any affiliate or
selling agent of the Company, I am capable of evaluating the risk and merits of
an investment in the Shares and of protecting my own interests, AND I am an
Accredited Investor.
(h) I understand that the Shares are illiquid, and until registered with
the Securities Exchange Commission or an exemption from registration becomes
available, cannot be readily sold as there will not be a public market for them
and that I may not be able to sell or dispose of the Shares, or to utilize the
Shares as collateral for a loan. I must not purchase the Shares unless I have
liquid assets sufficient to assure myself that such purchase will cause me no
undue financial difficulties and that I can still provide for my current and
possible personal contingencies, and that the commitment herein for the Shares,
combined with other investments of mine, is reasonable in relation to my net
worth.
(i) I agree that if I decide to offer, sell or otherwise transfer any of
the Shares, I will not offer, sell or otherwise transfer any such securities,
directly or indirectly, unless: (i) the transfer is to the Company, (ii) the
transfer is made outside the United States in compliance with the requirements
of Rule 904 of Regulation S under the Securities Act and in compliance with
CHINA GRANITE CORPORATION
2 Subscription Agreement
applicable local laws and regulations, (iii) the transfer is made in compliance
with an exemption from registration under the Securities Act provided by Rule
144 thereunder, or (iv) the securities are transferred in a transaction that
does not require registration under the Securities Act or any applicable state
securities laws and it has furnished to the Company an opinion of counsel in
form and substance reasonably satisfactory to the Company to such effect;
(j) I understand and acknowledge that upon the original issuance of the
Shares, and until such time as the same is no longer required under applicable
requirements of the Securities Act or applicable state securities laws,
certificates representing the Shares, and all certificates issued in exchange
therefor or in substitution thereof, shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR
THE BENEFIT OF THE CORPORATION THAT SUCH SECURITIES MAY BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE U.S. SECURITIES ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION
UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS
AND THE SELLER FURNISHES TO THE CORPORATION AN OPINION OF COUNSEL OF
RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE CORPORATION TO SUCH EFFECT. A NEW CERTIFICATE BEARING NO LEGEND,
DELIVERY OF WHICH WILL CONSTITUTE "GOOD DELIVERY," MAY BE OBTAINED
FROM THE CORPORATION'S REGISTRAR AND TRANSFER AGENT UPON DELIVERY OF
THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A FORM
SATISFACTORY TO THE CORPORATION'S REGISTRAR AND TRANSFER AGENT AND THE
CORPORATION, TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED
HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE U.S. SECURITIES ACT";
provided, that if the Shares are being sold in compliance with the
requirements of Rule 904 of Regulation S under the Securities Act, as referred
to above, the legend may be removed by providing a declaration to the Company's
registrar and transfer agent for the Shares in the form attached hereto as Annex
A (or as the Company may prescribe from time to time);
provided further, that, if any of the Shares are being sold pursuant to
Rule 144 of the Securities Act, the legend may be removed by delivery to the
Company's registrar and transfer agent of an opinion of counsel of recognized
standing in form and substance reasonably satisfactory to the Company, to the
effect that the legend is no longer required under applicable requirements of
the Securities Act or state securities laws;
CHINA GRANITE CORPORATION
3 Subscription Agreement
(k) I consent to the Company making a notation on its records or giving
instructions to any transfer agent of the Shares in order to implement the
restrictions on transfer set forth and described herein;
(l) I have been advised to consult with my own attorney or attorneys
regarding all legal matters concerning an investment in the Company and the tax
consequences of purchasing the Shares, and have done so, to the extent I
consider necessary.
(m) I acknowledge that the tax consequences to me of investing in the
Company will depend on my particular circumstances, and neither the Company, the
Company's Officers, any other investors, nor the partners, shareholders,
members, managers, agents, officers, directors, employees, affiliates or
consultants of any of them, will be responsible or liable for the tax
consequences to me of an investment in the Company. I will look solely to and
rely upon my own advisers with respect to the tax consequences of this
investment.
(n) All information which I have provided to the Company concerning
myself, my financial position and my knowledge of financial and business matters
is truthful, accurate, correct and complete as of the date set forth herein.
4. COMPANY REGISTRATION.
(a) Registration. If at any time or from time to time, the Company shall
determine to register any of its securities, for its own account or the account
of any of its shareholders, other than a registration on Form S-8 relating
solely to employee stock option or purchase plans, or a registration on Form S-4
relating solely to a SEC Rule 145 transaction, the Company will:
(i) promptly give to each Participant written notice thereof at least
30 days prior to the initial filing of the registration statement relating to
such offering; and
(ii) include in such registration (and compliance) all the Restricted
Securities sold pursuant to the Memorandum.
(b) Underwriting.
(i) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
4(a)(i). In such event the right of any Holder to registration pursuant to
Section 4 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Restricted Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.
CHINA GRANITE CORPORATION
4 Subscription Agreement
(ii) Notwithstanding any other provision of this Section 4, if the
underwriter managing such public offering determines that marketing factors
require a limitation of the number of shares to be underwritten, the underwriter
may limit the number of Restricted Securities to be included in the registration
and underwriting, or may exclude Restricted Securities entirely from such
registration and underwriting. The Company shall so advise all Holders of
Restricted Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of shares of Restricted Securities that may be
included in the registration and underwriting shall be allocated among Holders
requesting registration in proportion, as nearly as practicable, to the
respective amounts of Restricted Securities held by each of such Holders as of
the date of the notice pursuant to Section 4(a)(i) above; provided that the
number of shares of Restricted Securities requested to be included in such
underwriting shall not be reduced unless all other securities being sold by
shareholders other than the Holders are first entirely excluded from the
Underwriting. If any Holder disapproves of the terms of any such underwriting,
he may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Restricted Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
5. AGREEMENT TO INDEMNIFY COMPANY. I hereby agree to indemnify and hold
harmless the Company, its principals, the Company's officers, directors
attorneys, and agents, from any and all damages, costs and expenses (including
actual attorneys' fees) which they may incur (i) by reason of my failure to
fulfill any of the terms and conditions of this Subscription, (ii) by reason of
my breach of any of my representations, warranties or agreements contained
herein, and (iii) with respect to any and all claims made by or involving any
person, other than me personally, claiming any interest, right, title, power or
authority in respect to the Shares. I further agree and acknowledge that these
indemnifications shall survive any sale or transfer, or attempted sale or
transfer, of any portion of the Shares.
6. SUBSCRIPTION BINDING ON HEIRS, ETC. This Subscription, upon acceptance by
the Company, shall be binding upon the heirs, executors, administrators,
successors and assigns of the Participant. If the undersigned is more than one
person, the obligations of the undersigned shall be joint and several and the
representations and warranties shall be deemed to be made by and be binding on
each such person and his or her heirs, executors, administrators, successors,
and assigns.
7. EXECUTION AUTHORIZED. If this Subscription is executed on behalf of a
corporation, partnership, trust or other entity, the undersigned has been duly
authorized and empowered to legally represent such entity and to execute this
Subscription and all other instruments in connection with the Shares and the
signature of the person is binding upon such entity.
8. ADOPTION OF TERMS AND PROVISIONS. The Participant hereby adopts, accepts
and agrees to be bound by all the terms and provisions hereof.
9. GOVERNING LAW. This Subscription shall be construed in accordance with the
laws of the State of Nevada.
CHINA GRANITE CORPORATION
5 Subscription Agreement
10. INVESTOR INFORMATION:
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PARTICULARS OF PURCHASE OF SHARES
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Number of Shares Subscribed For:
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Total subscription price payable: ($3.00 x
number of Shares):
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PURCHASER INFORMATION
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Name of Purchaser:
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Street Address:
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Street Address (2):
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City and State:
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Zip Code:
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Contact Name:
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Alternate Contact:
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Phone No.:
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Fax No:
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CHINA GRANITE CORPORATION
6 Subscription Agreement
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REGISTRATION INFORMATION
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Registration of the certificates representing the Shares should be made exactly
as follows (if space is insufficient, attach a list):
Name of Purchaser:
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Street Address:
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Street Address (2):
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City and State:
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Zip Code:
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Contact Name:
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Alternate Contact:
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Phone No.:
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Fax No:
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DELIVERY OF CERTIFICATES
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The certificates representing the Shares are to be delivered as follows (if
different from the address(es) set forth "Registration Information" above):
Name of Purchaser:
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Street Address:
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Street Address (2):
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City and State:
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Zip Code:
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Contact Name:
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Alternate Contact:
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Phone No.:
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Fax No:
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CHINA GRANITE CORPORATION
7 Subscription Agreement
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BENEFICIAL PURCHASER INFORMATION
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If the Purchaser is acting for a beneficial purchaser, the name and address of
such beneficial purchaser is as follows:
Name of Purchaser:
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Street Address:
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Street Address (2):
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City and State:
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Zip Code:
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Contact Name:
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Alternate Contact:
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Phone No.:
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Fax No:
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11. EXECUTION BY FACSIMILE, COUNTERPARTS. The Company shall be entitled to
rely on delivery by facsimile of an executed copy of this Subscription and
acceptance by the Company of such facsimile copy shall create a legal, valid and
binding agreement among the undersigned and the Company in accordance with the
terms hereof. This Subscription may be executed in counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same document.
[remainder of page left blank]
CHINA GRANITE CORPORATION
8 Subscription Agreement
Subject to acceptance by the Company, the undersigned (on its own behalf
and, if applicable, on behalf of each principal for whom it is contracting
hereunder) has completed this Subscription to evidence his/her subscription for
participation in the Shares of the Company, this ____ day of______________,
2004, at,.
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(Full Name of Subscriber - please print)
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(Authorized Signature)
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(Name and Official Capacity - please print)
The Company has accepted this Subscription as of this day of, 2004.
CHINA GRANITE CORPORATION
a Nevada corporation
By:
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Xxxx Xxxx, CEO
Address for notice:
China Granite Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxx Xxxx, CFO
CHINA GRANITE CORPORATION
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ANNEX A
FORM OF DECLARATION FOR REMOVAL OF LEGEND
TO: First American Stock Transfer
as registrar and transfer agent
for Shares of
China Granite Corporation
[address of First American Stock Transfer]
The undersigned (a) acknowledges that the sale of the securities of China
Granite Corporation (the "Company") to which this declaration relates is being
made in reliance on Rule 904 of Regulation S under the United States Securities
Act of 1933, as amended (the "Securities Act") and (b) certifies that (1) the
undersigned is not an affiliate of the Company (as that term is defined in Rule
405 under the Securities Act), (2) the offer of such securities was not made to
a person in the United States and at the time the buy order was originated, the
buyer was outside the United States, or the seller and any person acting on its
behalf reasonably believed that the buyer was outside the United States, (3)
neither the seller nor any affiliate of the seller nor any person acting on any
of their behalf has engaged or will engage in any directed selling efforts in
the United States in connection with the offer and sale of such securities, (4)
the sale is bona fide and not for the purpose of "washing off" the resale
restrictions imposed because the securities are "restricted securities" (as such
term is defined in Rule 144(a)(3) under the Securities Act), and (5) the seller
does not intend to replace such securities with fungible unrestricted securities
and (6) the contemplated sale is not a transaction, or part of a series of
transactions which, although in technical compliance with Regulation S under the
Securities Act, is part of a plan or scheme to evade the registration provisions
of the Securities Act. Terms used herein have the meanings given to them by
Regulation S under the Securities Act.
Dated:
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Name of Seller
By:
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Name:
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Title:
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CHINA GRANITE CORPORATION
Subscription Agreement
