Contract
EXHIBIT
10.1
THE
SHARES OF COMMON STOCK TO BE ACQUIRED BY THE SUBSCRIBER PURSUANT TO THIS
SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED, SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO
REGISTRATION UNDER THE SECURITIES ACT, AND THE SUBSCRIBER HAS, IF REQUIRED BY
THE COMPANY, DELIVERED AN OPINION OF COUNSEL TO THAT EFFECT. BY ENTERING
INTO THIS SUBSCRIPTION AGREEMENT, SUBSCRIBER REPRESENTS, AMONG OTHER THINGS,
THAT IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a) OF THE SECURITIES
ACT) AND IS ACQUIRING THE COMMON STOCK PURSUANT TO AN EXEMPTION FROM
REGISTRATION PURSUANT TO REGULATION D PROMULGATED UNDER THE SECURITIES ACT AND
WILL NOT ENGAGE IN ANY TRANSACTIONS WITH RESPECT TO THE COMMON STOCK OF THE
COMPANY EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT.
ACCELERATED
ACQUISITIONS II, INC.
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Name
of Subscriber:
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Xxxxxx
X. Xxxx
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Address
of Subscriber:
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Number
of
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Shares
of Common Stock:
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10,250,000
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Purchase
Price:
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$1,025.00
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TO:
Accelerated Acquisitions II, Inc., a California corporation (the “Company”).
The
Subscriber hereby subscribes for and agrees to purchase the number of shares
(the “ Shares ”) of
common stock of the Company, par value $0.0001 per share (the “ Common Stock ”) specified
above in accordance with and subject to the terms, provisions and conditions set
forth herein. The Subscriber agrees to pay to the Company $0.0001 per
Share, for a total purchase price (the “Purchase Price”) equal to the
amount set forth above.
The
Subscriber understands that this Subscription Agreement may be rejected in whole
or in part prior to acceptance at any time for any reason whatsoever by the
Company. The Subscriber further understands that in the event this
Subscription Agreement is rejected by the Company, the subscription of the
Subscriber herein shall become null and void insofar as rejected. Upon
such rejection, the Subscriber shall have no further obligations to the
Company.
A.
Payment.
In connection with this Subscription Agreement and subject to acceptance by the
Company, the Subscriber hereby agrees with the Company as
follows:
(1)
The sale of the Shares offered or subscribed for pursuant to this private
placement will be closed not later than the second business day immediately
following the acceptance by the Company of this Subscription Agreement (the
“Closing Date”).
On the Closing Date, the Subscriber will pay to the Company the Purchase Price
in immediately available funds, by wire transfer as directed by the Company Upon
the Subscriber’s payment in full of the Purchase Price as contemplated by this
Part A(1), the Company shall issue to the Subscriber that number of whole shares
of Common Stock subscribed for by Subscriber pursuant hereto. The shares
of Common Stock issued to the Subscriber in consideration for such payment shall
be validly issued and outstanding, and fully paid and
non-assessable.
B.
Acknowledgments and
Covenants.
(1)
The Subscriber hereby agrees to pay all costs and expenses incurred by or on
behalf of the Company, including reasonable attorneys’ fees and disbursements,
in connection with enforcing the Subscriber’s obligations under this
Subscription Agreement in the event of any default in respect of its obligations
hereunder.
(2)
Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the
“Code”), the Company
must withhold tax with respect to certain transfers of property if a stockholder
of the Company is a foreign person. To inform the Company whether
withholding is required with respect to the Subscriber’s interest in the
Company, the Subscriber shall complete a Form W-9 or applicable Form
W-8.
(3)
The Subscriber acknowledges and agrees that the Shares will be issued subject to
the terms of this Subscription Agreement and that any certificates evidencing
the Shares will bear appropriate legends to that effect, including a legend in
substantially the form set forth above and as otherwise provided pursuant
hereto.
C.
Representations and
Warranties .
Subscriber
Representations and Warranties.
The
Subscriber warrants, represents and agrees with the Company as
follows:
(1)
Upon acceptance by the Company, this Subscription Agreement is irrevocable and
shall constitute a binding commitment of the Subscriber.
(2)
Subscriber is acquiring the Shares for his/her/its own account, not on behalf or
for the account of any other Person.
(3)
The Subscriber will make all resales of the Shares only pursuant to a
registration statement under the Securities Act or pursuant to an available
exemption from registration under the Securities Act.
(4)
The Company is and will be relying on the truth and accuracy of Subscriber’s
representations, warranties, agreements, acknowledgements and understandings as
set forth herein, in order to determine the applicability of such exemptions and
the suitability of Subscriber and his/her/its acquisition of the
Shares.
(5)
Subscriber has been provided all necessary and appropriate information about the
Company to make an informed investment decision with respect to the acquisition
of the Shares. WITHOUT LIMITING THE FOREGOING, THE SUBSCRIBER ACKNOWLEDGES
THAT AN INVESTMENT IN THE COMPANY INVOLVES SUBSTANTIAL RISK AND THE SUBSCRIBER
MAY LOSE ITS ENTIRE INVESTMENT.
(6)
Subscriber has sufficient knowledge and experience in financial and business
matters and is capable of evaluating the risks and merits of Subscriber’s
investment in the Company; Subscriber has been provided the opportunity to make
all necessary and appropriate inquiries of the Company regarding Company’s
business and associated risks, and Company has complied with all such requests;
and Subscriber is able financially to bear the risk of losing Subscriber’s full
investment in the Shares.
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(7)
The Shares are being acquired in a transaction not involving a public offering
and Subscriber understands that the Shares have not been and may not be,
registered under the Securities Act or registered or qualified under any the
securities laws of any state or other jurisdiction, are and will be “restricted
securities” and cannot be resold or otherwise transferred unless they are
registered under the Securities Act, and registered or qualified under any other
applicable securities laws, or an exemption from such registration and
qualification is available. Prior to any proposed transfer of the Shares,
Subscriber shall, among other things, give written notice to the Company of
Subscriber’s intention to effect such transfer, identifying the transferee and
describing the manner of the proposed transfer and, if requested by the Company,
accompanied by (i) investment representations by the transferee similar to those
made by Subscriber in this Section 7 and (ii) an opinion of counsel satisfactory
to the Company to the effect that the proposed transfer may be effected without
registration under the Securities Act and without registration or qualification
under applicable state or other securities laws. Each certificate for the
Shares shall bear a legend similar to that set forth on the first page of this
Subscription Agreement (insofar as applicable) and otherwise referring to
reiterating the restrictions on transfer and other terms hereof applicable to
the Shares upon issuance, and containing such other information and imposing
such other restrictions as shall be reasonably required by the
Company.
(8)
Subscriber understands that no U.S. federal or state government or agency has
passed on or made any recommendation or endorsement of offering for sale or the
sale of the Shares.
(9)
Subscriber acknowledges there is no restriction imposed hereby upon the Company
in respect of the incurring by the Company of additional debt or the issuance by
the Company of additional debt or equity securities, or otherwise.
(10)
The Shares will be purchased for the account of the Subscriber for investment
only and not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation therein.
The Subscriber has not been organized for the specific purpose of acquiring the
Shares. The Subscriber acknowledges that the Shares have not been
registered under the Securities Act, or the securities laws of any state or
other jurisdiction and cannot be disposed of unless subsequently registered
under the Securities Act and any applicable laws of states or other
jurisdictions or an exemption from such registration is available.
(11)
The Subscriber is an “accredited investor” as defined in Rule 501(a) of
Securities and Exchange Commission Regulation D, that is (i) if a natural
person, Subscriber has an individual net worth, or joint net worth with the
Subscriber’s spouse, at the time of the Subscriber’s purchase in excess of
$1,000,000; (ii) if a corporation, business trust or a partnership, Subscriber
was not formed for the specific purpose of acquiring the Shares, and has total
assets in excess of $5,000,000.
(12)
The Subscriber acknowledges that at no time was the Subscriber presented with,
or solicited by, any leaflet, public promotional meeting, newspaper or magazine
article, radio or television advertisement or any other form of general
advertising or general solicitation with respect to the Company.
(13)
If the Subscriber is an entity, the Subscriber is duly organized or, if a trust,
duly established pursuant to a valid trust instrument, validly existing and in
good standing under the laws of the jurisdiction wherein it is organized and has
the power and authority to carry on the activities in which it is engaged and to
purchase the Shares. This Subscription Agreement and any other documents
executed and delivered by the Subscriber in connection therewith or herewith
have been duly authorized, executed and delivered by the Subscriber, and are the
legal, valid and binding obligations of the Subscriber enforceable in accordance
with their respective terms.
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(14)
The execution and delivery of this Subscription Agreement and any other
documents executed and delivered by the Subscriber in connection herewith do
not, and the performance and consummation of the terms and transactions set
forth or contemplated therein or herein will not, contravene or result in a
default under any provision of existing law or regulations to which the
Subscriber is subject, the provisions of the trust instrument, charter, bylaws
or other governing documents of the Subscriber (if the Subscriber is an entity)
or any indenture, mortgage or other agreement or instrument to which the
Subscriber is a party or by which it is bound and does not require on the part
of the Subscriber any approval, authorization, license, or filing from or with
any foreign, federal, state or municipal board or agency which has not been
obtained.
(15)
The Subscriber represents and warrants that the amounts paid or to be paid by it
to the Company in respect of this Subscription Agreement were not and are not
directly, or to the Subscriber’s knowledge indirectly, derived from activities
that contravene federal, state or foreign laws and regulations, including
anti-money laundering and terrorist financing laws and regulations.
Federal regulations and Executive Orders administered by the U.S. Treasury
Department’s Office of Foreign Assets Control (“OFAC”) prohibit, among other
things, the engagement in transactions with, and the provision of services to,
certain foreign countries, territories, entities, and individuals. The
lists of OFAC prohibited countries, territories, persons and entities can be
found on the OFAC website at xxx.xxxxx.xxx/xxxx.
(16)
The Subscriber represents and warrants to, and agrees and covenants with, the
Company, as of the date hereof and as of the date of issuance of the Shares to
the Subscriber, that, to the best of its knowledge, none of (i) the Subscriber,
(ii) any person controlling or controlled by the Subscriber, (iii) if the
Subscriber is a privately held entity, any person having beneficial interest in
the Subscriber, and (iv) any person for which the Subscriber is acting as agent
or nominee in connection with this Subscription Agreement, is a country,
territory, individual or entity named on the OFAC lists, nor is any such person
or entity prohibited from investing in the Company under any OFAC administered
sanctions or embargo programs.
(17)
The Subscriber agrees promptly to notify the Company should the Subscriber
become aware of any change in the information set forth in Part (18) or Part
(19) above. The Subscriber acknowledges and agrees that, if required by
law, the Company may be obligated to “freeze the account” of the Subscriber,
either by prohibiting additional investments from the Subscriber and/or
segregating assets of the Subscriber in compliance with government regulations
and, if required by law, the Company may also be required to report such action
and to disclose the Subscriber’s identity to OFAC. The Subscriber also
understands and agrees that the Company may release confidential information
about the Subscriber and, if applicable, any underlying beneficial owners of the
Subscriber, to law enforcement agencies to the extent necessary to ensure
compliance with all applicable laws, rules and regulations.
(18)
The Company reserves the right to request such information as is necessary to
verify the identity of the Subscriber, any related party, any individual or
entity having a beneficial interest in, or signatory or other similar authority
over, the Subscriber and any transferee of the Shares, and may seek to verify
such identity and the source of funds for the Purchase Price.
(19)
If the Subscriber is acting as nominee or custodian for another person, entity
or organization in connection with the acquisition of the Shares, the
undersigned has so indicated on the “Subscriber Information” page attached
hereto. The representations and warranties contained in this Part C
regarding the Subscriber are true and accurate with regard to both the
Subscriber and the person, entity or other organization for which the
undersigned is acting as nominee or custodian. The person, entity or
organization for which the undersigned is acting as nominee or custodian will
not transfer or otherwise dispose of or distribute any part of its economic or
beneficial interest in (or any other rights with respect to) the Shares without
complying with all of the applicable provisions of this Subscription Agreement
and applicable law, as if such person, entity or organization were a holder of
the Shares. If the undersigned is acting as nominee or custodian for
another person, entity or organization, the undersigned agrees to provide such
other information as the Company may reasonably request regarding the
undersigned and the person, entity or organization for which the undersigned is
acting as nominee or custodian in order to determine the eligibility of the
Subscriber to purchase the Shares.
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Company
Representations and Warranties.
By
accepting the Subscriber’s subscription, the Company warrants, represents and
agrees with the Subscriber as follows:
(1)
The Company is duly organized, validly existing and in good standing as a
corporation under the Delaware General Corporation Law, with all requisite
corporate power and authority to conduct its business as currently conducted and
to issue and sell the Shares in accordance with the terms of this Subscription
Agreement. This Subscription Agreement (when accepted) will have been duly
authorized, executed and delivered by the Company.
(2)
This Subscription Agreement is a legally binding obligation of the Company,
enforceable against the Company in accordance with the terms hereof, except to
the extent that (i) such enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors’ rights, and (ii) the availability of the remedy of
specific performance or in injunctive or other equitable relief is subject to
the discretion of the court before which any proceeding therefore may be
brought.
D.
Assignment, Survival,
Effectiveness and Further Information.
(1)
This Subscription Agreement is not assignable by either the Subscriber or the
Company without the prior approval of the other party in its sole and absolute
discretion. This Subscription Agreement shall be binding upon the
successors and any permitted assigns of the Subscriber and, when accepted by the
Company, shall be binding upon the successors and any permitted assigns of the
Company.
(2)
All of the agreements, covenants, representations and warranties made by the
Subscriber in this Subscription Agreement shall survive the execution and
delivery hereof. The Subscriber shall use reasonable efforts to notify the
Company and to do so promptly upon discovering that any of the representations
or warranties made herein were false when made or has, as a result of changes in
circumstances, become false. Every provision of this Subscription
Agreement is intended to be severable, and if any term or provision hereof is
held to be illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity of the remainder hereof.
(3)
The agreements of the Subscriber set forth herein shall become effective and
binding upon the Subscriber, without right of revocation, upon the Company’s
acceptance of this Subscription Agreement.
E.
Miscellaneous.
Unless otherwise indicated, the address on the first page of this document is
the legal residence of the Subscriber, and all offers and communications in
connection with the offering of the shares of Common Stock subscribed to herein
have been conducted at such address. The Subscriber, if a foreign entity,
represents that it has complied with all of the laws, if any, of its country of
residence applicable to the acquisition of the Shares subscribed to
herein.
F.
Remedies.
The Subscriber understands the meaning and legal consequences of its covenants,
representations and warranties contained herein, and hereby agrees that the
Company may recover from the Subscriber, and the Subscriber shall hold the
Company harmless from, any and all loss, damage or liability due to or arising
out of any breach of any such covenant, representation or warranty.
G.
Communication.
Any notice, demand, request or other communication which may be required or
contemplated herein (including delivery of this Subscription Agreement by and
between the parties hereto) shall be sufficiently given or delivered if (i)
given either by facsimile transmission (with confirmation of receipt), by
reputable overnight delivery service, postage prepaid, or by registered or
certified mail, postage prepaid and return receipt requested, to the address
indicated herein or to such other address as any party hereto may specify as
provided herein, or (ii) delivered personally at such address.
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H.
Applicable
Law. This Subscription Agreement and all legal relations, claims or
obligations arising out of this transaction shall be governed by and construed
in accordance with the laws of the State of California, without regard to
conflicts of law provisions.
I.
Confirmation of
Representations; Additional Information. Upon request of the
Company, the Subscriber shall confirm the accuracy of the representations in
this Subscription Agreement to the Company as of the Closing Date and will use
reasonable efforts to notify the Company and to do so promptly if the Subscriber
becomes aware that such representations are, at any time, inaccurate in any
respect. In addition, the Subscriber hereby agrees to respond reasonably
to requests to supply any additional written information concerning the
representations in this Subscription Agreement that the Company may reasonably
request.
J.
Indemnification.
The Subscriber shall indemnify and hold harmless the Company and its agents and
affiliates (collectively, the “ Indemnified Persons ”) from
and against any losses, claims, damages, liabilities, costs or expenses to which
any of them may become subject arising out of or based upon any false
representation or warranty, or any breach of or failure to comply with any
covenant or agreement, made by the Subscriber in this Subscription Agreement or
in any other document furnished to the Company in connection with the
Subscriber’s investment in the Company. The Subscriber will reimburse each
Indemnified Person for his, her or its reasonable legal and other expenses
(including the cost of any investigation and preparation) as they are incurred
in connection with any action, proceeding or investigation arising out of or
based upon the foregoing. The indemnity and reimbursement obligations of
the Subscriber under this Part J shall be in addition to any liability which the
Subscriber may otherwise have.
K.
General.
This Subscription Agreement may be executed in counterparts with the same effect
as if the parties executing the counterparts had all executed one
counterpart. This Subscription Agreement and the documents specifically
referred to herein constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
therewith. Neither this Subscription Agreement nor any provision hereof
may be waived, modified, discharged or terminated except by an instrument in
writing signed by the party against whom such waiver, modification, discharge or
termination is sought to be enforced. Each provision of this Subscription
Agreement shall be considered separable and if for any reason any provision or
provisions hereof are determined to be invalid and contrary to any existing or
future law, such invalidity shall not impair the operation of or affect those
portions of this Subscription Agreement which are valid.
[signatures
are on the following pages]
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IN
WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement to
ACCELERATED ACQUISITIONS II, INC., Inc. this 5th day of June, 2009.
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Name
of Subscriber: Xxxxxx X. Xxxx
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/s/
Xxxxxx X. Xxxx
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By:
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Purchase Price:
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$1,025.00
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ACCEPTANCE
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Name
of Subscriber:
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Xxxxxx
X. Xxxx
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Purchase
Price:
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$1,025.00
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The
foregoing Subscription Agreement is hereby accepted upon the terms and
conditions set forth herein.
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ACCELERATED
ACQUISITIONS II, INC.
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/s/ Xxxxxxx
Xxxxx
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By:
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Name:
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Xxxxxxx
Xxxxx
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Title:
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President
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Dated:
June 5, 2009
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