SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
Name
of
Subscriber ________________________
Onstream
Media Corporation
0000
X.X.
00xx Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxx 00000
Ladies
and Gentlemen:
1. Subscription.
I
(sometimes referred to herein as the "Investor") hereby subscribe for and agree
to purchase ___ Unit(s) (as defined below) of Onstream Media Corporation, a
Florida corporation (the "Company”), on the terms and conditions described
herein and in the Term Sheet of the Company and the Exhibits thereto
(collectively, the “Offering Documents”), each dated April __, 2008, together
with all supplements, if any, relating to this offering. Terms not defined
herein are as defined in the Offering Documents. The purchase price per Unit
is
$100,000 although the Company reserves the right to sell fractional units.
The
Maximum Offering is $1,500,000. There is no minimum offering.
THE
AGGREGATE AMOUNT SUBSCRIBED FOR HEREBY IS $___________.
2. Description
of Units.
Each
Unit consists of (i) an interest bearing secured convertible note in principal
amount of $100,000 (the “Notes”), and (ii) 10,000 shares of Company common
stock, par value $.001 per share (“Shares”) (collectively, the Note and Shares
are referred to as a “Unit”).
3. Purchase.
(a) I
hereby
tender to the Company cash or a certified check or wire transfer (information
to
be provided to me on my request) made payable to the order of Onstream Media
Corporation in the amount indicated above, an executed copy of this Subscription
Agreement and an executed copy of my Investor Questionnaire. The wire
information is:
Onstream
Media Corporation
ABA#:
________________
AC
#:
_________________
Ref:
Subscription Agreement from (indicate name of subscriber)
(b) This
offering will continue until the earlier of (a) the sale of 15 Units, or (b)
May
15, 2008, unless extended without notice by the Company for up to two additional
30-day periods (the “Termination Date”). Prior to the Termination Date and as
there is no minimum offering, payments delivered herewith will be immediately
released to the Company upon acceptance of the subscription. Upon the earlier
of
a closing for my subscription or completion of the offering, I will be notified
promptly by the Company as to whether my subscription has been accepted by
the
Company.
4. Acceptance
or Rejection of Subscription.
(a) I
understand and agree that the Company reserves the right to reject this
subscription for the Units, in whole or in part, for any reason and at any
time
prior to the Closing, notwithstanding prior receipt by me of notice of
acceptance of my subscription.
(b) In
the
event of the rejection of this subscription, my subscription payment will be
promptly returned to me without interest or deduction and this Subscription
Agreement shall have no force or effect. In the event my subscription is
accepted and the offering is completed, the funds specified above shall be
released to the Company.
5. Closing.
The
closing ("Closing") of this offering may occur any time and from time to time
after the Company has received and accepted subscriptions before the Termination
Date. The Units subscribed for herein shall not be deemed issued to or owned
by
me until one copy of this Subscription Agreement has been executed by me and
countersigned by the Company and the Closing with respect to such Units has
occurred.
6. Disclosure.
Because
this offering is limited to accredited investors as defined in Section
2(15) of
the
Securities Act of 1933, as amended (the “Securities Act”), and Rule
501 promulgated
thereunder, in reliance upon the exemption contained in Section 4(2) of the
Securities Act and applicable state securities laws, the Units are being sold
without registration under the Securities Act. I acknowledge receipt of the
Offering Documents, including the Company's Annual Report on Form 10-KSB for
the
year ended September 30, 2007 and its Quarterly Report on Form 10-QSB for the
period ending December 31, 2007 and all related documents and represent that
I
have carefully reviewed and understand the Offering Documents and its exhibits.
I have received all information and materials regarding the Company that I
have
requested.
I
fully
understand that the investment or Units involve a high degree of risk. I fully
understand the nature of the risks involved in purchasing the Units and I am
qualified by my knowledge and experience to evaluate investments of this type.
I
have carefully considered the potential risks relating to the Company and
purchase of its Units and have, in particular, reviewed each of the risks set
forth in the Offering Documents. Both my advisors and I have had the opportunity
to ask questions of and receive answers from representatives of the Company
or
persons acting on its behalf concerning the Company and the terms and conditions
of a proposed investment in the Company and my advisors and I have also had
the
opportunity to obtain additional information necessary to verify the accuracy
of
information furnished about the Company. Accordingly, I have independently
evaluated the risks of purchasing the Units.
2
7. Investor
Representations and Warranties.
I
acknowledge, represent and warrant to, and agree with, the Company as
follows:
(a) I
am
aware that my investment involves a high degree of risk as disclosed in the
Offering Documents and have read carefully the Offering Documents.
(b) I
acknowledge and am aware that there is no assurance as to the future performance
of the Company.
(c) I
acknowledge that there may be certain adverse tax consequences to me in
connection with my purchase of Units, and the Company has advised me to seek
the
advice of experts in such areas prior to making this investment.
(d) I
am
purchasing the Units for my own account for investment purposes and not with
a
view to or for sale in connection with the distribution of the Units, the Notes,
the Shares, or the shares of Common Stock issuable upon conversion of the Notes
and in payment of interest, nor with any present intention of selling or
otherwise disposing of all or any part of the foregoing securities. I agree
that
I must bear the entire economic risk of my investment for an indefinite period
of time because, among other reasons, the Units have not been registered under
the Securities Act or under the securities laws of any state and, therefore,
cannot be resold, pledged, assigned or otherwise disposed of unless they are
subsequently registered under the Securities Act and under applicable securities
laws of certain states or an exemption from such registration is available.
Furthermore, I hereby acknowledge and agree that I will not, except in
compliance with law, sell, transfer, pledge, encumber, give or otherwise dispose
of, either publicly or privately, the Units, the Notes, the Shares, or the
shares of Common Stock issuable upon conversion of the Notes and in payment
of
interest. I hereby authorize the Company to place a legend denoting the
restrictions on the Units that may be issued to me, as well as the Notes,
Shares, and shares of Common Stock issuable upon conversion of the Notes and
in
payment of interest.
(e) I
recognize that the Units, as an investment, involve a high degree of risk
including, but not limited to, the risk of economic losses from operations
of
the Company and the total loss of my investment. I believe that the investment
in the Units is suitable for me based upon my investment objectives and
financial needs, and I have adequate means for providing for my current
financial needs and contingencies and have no need for liquidity with respect
to
my investment in the Company.
(f) I
have
been given access to full and complete information regarding the Company and
have utilized such access to my satisfaction for the purpose of obtaining
information in addition to, or verifying information included in, the Offering
Documents and related documents, and I have either met with or been given
reasonable opportunity to meet with officers of the Company for the purpose
of
asking questions of, and receiving answers from, such officers concerning the
terms and conditions of the offering of the Units and the business and
operations of the Company and to obtain any additional information, to the
extent reasonably available.
3
(g) I
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 Units and have
obtained, in my judgment, sufficient information from the Company to evaluate
the merits and risks of an investment in the Company. I have not utilized any
person as my purchaser representative as defined in Regulation D under the
Securities Act in connection with evaluating such merits and risks.
(h) I
have
relied solely upon my own investigation in making a decision to invest in the
Company.
(i) I
have
received no representation or warranty from the Company or any of its officers,
directors, employees or agents in respect of my investment in the Company and
I
have received no information (written or otherwise) from them relating to the
Company or its business other than as set forth in the Offering Documents.
I am
not participating in the offer as a result of or subsequent to: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(j) I
have
had full opportunity to ask questions and to receive satisfactory answers
concerning the offering and other matters pertaining to my investment and all
such questions have been answered to my full satisfaction.
(k) I
have
been provided an opportunity to obtain any additional information concerning
the
offering and the Company and all other information to the extent the Company
possesses such information or can acquire it without unreasonable effort or
expense.
(l) I
am an
"accredited investor" as defined in Section 2(15) of the Securities Act and
in
Rule 501 promulgated thereunder. I can bear the entire economic risk of the
investment in the Units for an indefinite period of time and I am knowledgeable
about and experienced in investments in the equity securities of non-publicly
traded companies, including early stage companies. I am acquiring the Units
for
my own account for investment purposes only and not with a view to the resale
or
distribution of such securities within the meaning of the Securities Act of
1933, as amended. I am not acting as an underwriter or a conduit for sale to
the
public or to others of unregistered securities, directly or indirectly, on
behalf of the Company or any person with respect to such
securities.
(m) I
understand that (i) the Units and the underlying securities have not been
registered under the Securities Act, or the securities laws of certain states
in
reliance on specific exemptions from registration, (ii) no securities
administrator of any state or the federal government has recommended or endorsed
this offering or made any finding or determination relating to the fairness
of
an investment in the Company and (iii) the Company is relying on my
representations and agreements for the purpose of determining whether this
transaction meets the requirements of the exemptions afforded by the Securities
Act and certain state securities laws.
4
(n) I
understand that (i) since neither the offer nor sale of the Units has been
registered under the Securities Act or the securities laws of any state, the
Units may not be sold, assigned, pledged or otherwise disposed of unless they
are so registered or an exemption from such registration is available, and
(ii)
it is not anticipated that there will be any market for the resale of the
Units.
(o) I
have
been urged to seek independent advice from my professional advisors relating
to
the suitability of an investment in the Company in view of my overall financial
needs and with respect to the legal and tax implications of such
investment.
(p) If
the
Investor is a corporation, company, trust, employee benefit plan, individual
retirement account, Xxxxx Plan, or other tax-exempt entity, it is authorized
and
qualified to become an Investor in the Company and the person signing this
Subscription Agreement on behalf of such entity has been duly authorized by
such
entity to do so.
(q) The
information contained in my Investor Questionnaire, as well as any information
which I have furnished to the Company with respect to my financial position
and
business experience, is correct and complete as of the date of this Subscription
Agreement and, if there should be any material change in such information prior
to the Closing of the offering, I will furnish such revised or corrected
information to the Company.
(r) Neither
the Investor or any person acting on its behalf or at its direction will engage
in any short sale hypothecation or other similar transaction with the Company's
Common Stock.
I
hereby
acknowledge and am aware that except for any rescission rights that may be
provided under applicable laws, I am not entitled to cancel, terminate or revoke
this subscription, and any agreements made in connection herewith shall survive
my death or disability.
8. Indemnification.
I hereby
agree to indemnify and hold harmless the Company and its officers, directors,
stockholders, employees, agents, and counsel against any and all losses, claims,
demands, liabilities, and expenses (including reasonable legal or other
expenses, including reasonable attorneys' fees) incurred by each such person
in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person, to which any such
indemnified party may become subject under the Securities Act, under any other
statute, at common law or otherwise, insofar as such losses, claims, demands,
liabilities and expenses (a) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact made by me and contained in
this
Subscription Agreement or my Investor Questionnaire, or (b) arise out of or
are
based upon any breach by me of any representation, warranty, or agreement made
by me contained herein or therein.
5
9. Severability.
In the
event any parts of this Subscription Agreement are found to be void, the
remaining provisions of this Subscription Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
10. Choice
of Law and Jurisdiction.
This
Subscription Agreement shall be governed by the laws of the State of Florida
as
applied to contracts entered into and to be performed entirely within the State
of Florida. Any action arising out of this Subscription Agreement shall be
brought exclusively in a court of competent jurisdiction in Broward County,
Florida, and the parties hereby irrevocably waive any objections they may have
to venue in Broward County, Florida.
11. Counterparts.
This
Subscription Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument. The execution of this Subscription Agreement may be
by
actual or facsimile signature.
12. Benefit.
This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties hereto.
13. Notices
and Addresses.
All
notices, offers, acceptance and any other acts under this Subscription Agreement
(except payment) shall be in writing, and shall be sufficiently given if
delivered to the addresses by registered mail or by Federal Express or similar
courier delivery or by facsimile delivery confirmed by either of the two
preceding methods, as follows:
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Investor:
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At
the address designated on the signature page of this Subscription
Agreement.
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The
Company:
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Onstream
Media Corporation
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0000
X.X. 00xx Xxxxxx
|
|
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Xxxxxxx
Xxxxx, Xxxxxxx 00000
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Fax
No. (000) 000-0000
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With
a copy to:
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Xxxxxxxx
& Xxxx LLP
|
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000
Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
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Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Attention:
Xxxx X. Xxxxxxxxx, Esq.
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Tel.
No. (000) 000-0000
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Fax
No. (000) 000-0000
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or
to
such other address as any of them, by notice to the others may designate from
time to time. The transmission confirmation receipt from the sender's facsimile
machine shall be conclusive evidence of successful facsimile delivery. Time
shall be counted to, or from, as the case may be, the delivery in person or
by
mailing.
6
14. Entire
Agreement.
This
Subscription Agreement constitutes the entire agreement between the parties
with
respect to the subject matter hereof and supersedes all prior oral and written
agreements between the parties hereto with respect to the subject matter hereof.
This Subscription Agreement may not be changed, waived, discharged, or
terminated orally but, rather, only by a statement in writing signed by the
party or parties against which enforcement or the change, waiver, discharge
or
termination is sought.
15. Section
Headings.
Section
headings herein have been inserted for reference only and shall not be deemed
to
limit or otherwise affect, in any matter, or be deemed to interpret in whole
or
in part, any of the terms or provisions of this Subscription
Agreement.
16. Survival
of Representations, Warranties and Agreements.
The
representations, warranties and agreements contained herein shall survive the
delivery of, and the payment for, the Units.
17. Acceptance
of Subscription.
The
Company may accept this Subscription Agreement at any time for all or any
portion of the Units subscribed for by executing a copy hereof as provided
and
notifying me within a reasonable time thereafter.
RESIDENTS OF ALL STATES:
THE
UNITS OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND ARE
BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE UNITS ARE SUBJECT TO REGISTRATIONS
ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE UNITS
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION,
ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY
OF
THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING
OR
THE ACCURACY OR ADEQUACY OF THE OFFERING DOCUMENTS. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
7
THE
AGGREGATE AMOUNT SUBSCRIBED FOR HEREBY IS $___________.
Manner
in
Which Title is to be Held. (check one)
___
Individual Ownership
___
Community Property
___
Joint
Tenant with Right of Survivorship (both parties must sign)
___
Partnership
___
Tenants in common
___
Corporation
___
Trust
___
XXX
or Xxxxxx
___
Other
(please indicate)
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Dated:
____________________________
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|
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INDIVIDUAL
INVESTORS
|
ENTITY
INVESTORS
|
| ______________________________ | |
| ______________________ |
Name
of entity, if any
|
|
Signature
(Individual)
|
|
|
By:
______________________________
|
|
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*Signature
|
|
| ______________________ |
Its
______________________________
|
|
Signature
(Joint)
|
Title
|
|
(all
record holders must sign)
|
|
| ______________________ | |
|
Name(s)
Typed or Printed
|
Name
Typed or Printed
|
|
Address
to Which Correspondence
|
Address
to Which Correspondence
|
|
Should
be Directed
|
Should
be Directed
|
| ______________________ | ______________________ |
| ______________________ | ______________________ |
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City,
State and Zip Code
|
City,
State and Zip Code
|
| ______________________ | ______________________ |
|
Tax
Identification or
|
Tax
Identification or
|
|
Social
Security Number
|
Social
Security Number
|
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*
|
If
Units are being subscribed for by any entity, the Certificate of
Signatory
on the next page must also be
completed
|
The
foregoing subscription is accepted and the Company hereby agrees to be bound
by
its terms.
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ONSTREAM
MEDIA CORPORATION
|
|
|
|
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Dated:
________________
|
By:
______________________________
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Xxxxx
Xxxxxx, President
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CERTIFICATE
OF SIGNATORY
(To
be
completed if Units are being subscribed for by an entity)
I,
_______________________________, the ____________________________
(name
of signatory) (title)
of______________________________
"Entity"), a __________________________
(name
of entity)
_________________________________________
(type
of entity)
hereby
certify that I am empowered and duly authorized by the Entity to execute the
Subscription Agreement and to purchase the Units, and certify further that
the
Subscription Agreement has been duly and validly executed on behalf of the
Entity and constitutes a legal and binding obligation of the
Entity.
IN
WITNESS WHEREOF, I have set my hand this ___ day of _________,
2008.
| ______________________________ | |
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(Signature)
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