Exhibit 10.25
SUBSCRIPTION AGREEMENT
THIS AGREEMENT, made this ___ day of _______, 1997, by and between Odyssey
Pictures Corporation, a corporation organized under the laws of the State of
Nevada and having a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and those persons executing
this Agreement as set forth on Exhibit A hereto (the "Equity Investors").
WHEREAS, the Company and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇") executed an
agreement, dated September 6, 1996 (the "Initial Agreement"), pursuant to which
▇▇▇▇▇▇▇▇▇▇ agreed to subscribe for, and the Company agreed to issue to
▇▇▇▇▇▇▇▇▇▇, subject to the terms and conditions stated therein, 1,000,000 shares
of common stock of the Company (the "Shares"), 1,000,000 common stock Class A
purchase warrants of the Company, and 1,000,000 common stock Class B purchase
warrants of the Company (the common stock purchase warrants being referred to
herein collectively as the "Warrants", the shares underlying the Warrants being
referred to herein as the "Warrant Shares", and the Shares, Warrants and Warrant
Shares being referred to herein collectively as the "Securities"); and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ has notified the Company that the Equity Investors
desire to participate in the aforesaid investment in the Company in the
respective participation amounts set forth on Exhibit A hereto, and the Company
has consented to such participation by the Equity Investors; and
WHEREAS, the Company and the Equity Investors desire to confirm the
Initial Agreement and memorialize certain other terms and conditions related
thereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. Confirmation of the Initial Agreement. The Company and the Equity
Investors hereby confirm all of the terms and conditions of the Initial
Agreement and hereby incorporate the provisions thereof into this Agreement as
if at this point set forth in full. The Equity Investors acknowledge having
received a copy of the Initial Agreement.
2. Investment Representations. Each of the Equity Investors hereby
acknowledges, represents and warrants to the Company as follows:
(a) The Equity Investor is acquiring the Securities for the Equity
Investor's own account as principal, not as a nominee or agent, for investment
purposes only, and not with a view to resale
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or distribution thereof, and no other person has a direct or indirect interest
in the Securities or any component thereof. The Equity Investor does not have
any contract, undertaking, agreement, or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities for which Equity Investor is subscribing, nor
does the Equity Investor have any contract, undertaking, agreement or
arrangement with any other Equity Investor, or any other person, to act in
concert, as a group, or as any type of voting block, with respect to the voting
or disposition of any of the Securities acquired hereunder.
(b) The Equity Investor acknowledges that the offering of the Securities
to Equity Investor (the "Offering") is intended to be exempt from registration
under the Securities Act of 1933, as amended (the "Act"), by virtue of Sections
3(b) and/or 4(2) of the Act and the provisions of Regulation D promulgated
thereunder ("Regulation D"). In furtherance thereof, the Equity Investor
represents and warrants to the Company as follows:
(i) Equity Investor is an "accredited" investor as that term is
defined in Rule 501 of Regulation D, that is to say that Equity Investor has an
individual net worth (or joint net worth with Equity Investor's spouse) in
excess of $1,000,000;
(ii) Equity Investor has the financial ability to bear the economic
risk of the investment in the Securities, has adequate means for providing for
Equity Investor's current needs and personal contingencies and has no need for
liquidity with respect to the investment in the Company; and
(iii) Equity Investor has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Securities.
(c) Pursuant to Rule 502 of Regulation D, the Equity Investor acknowledges
that he/she has received the following from the Company: (i) Report on Form 10-K
for the fiscal year ended June 30, 1996, (ii) definitive Proxy Statement for the
Company relating to the Annual Meeting of Shareholders of the Company held on
November 22, 1996, (iii) Annual Report to Shareholders for the fiscal year ended
June 30, 1996, and (iv) Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, filed November 14, 1996 (copies of all of which are
incorporated herein by reference).
(d) The Equity Investor has been provided an opportunity for a reasonable
time prior to the date hereof to obtain additional information concerning the
Offering, the Company and all other information to the extent the Company
possesses such information or can acquire it without unreasonable effort or
expense, and Equity Investor has been given the opportunity to ask questions of
the Company and its representatives concerning the terms and conditions
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of the Offering and other matters pertaining to an investment in the Company.
(e) The Equity Investor is not relying on any statements or
representations made by the Company or its affiliates with respect to economic
considerations involved in an investment in the Securities. No representations
or warranties have been made to Investor except as set forth herein.
(f) The Equity Investor will not sell or otherwise transfer the Securities
without registration under the Act or an exemption therefrom. Equity Investor
fully understands and agrees that he/she must bear the economic risk of the
investment because, among other reasons, the Securities have not been registered
under the Act and therefore cannot be resold, pledged, transferred, assigned or
otherwise disposed of unless they are subsequently registered under the Act or
unless an exemption from such registration requirements is available. Equity
Investor understands that the Securities will contain a legend restricting
transferability until the Securities are registered under the Act or an
exemption therefrom is available.
(g) The Equity Investor understands that an investment in the Securities
is a speculative investment which involves a high degree of risk.
(h) The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
3. Registration of Securities.
(a) The parties acknowledge that the closing of the Agreement is subject
to the condition, among others, that the Company register the Shares and the
Warrant Shares (the "Registrable Securities") for the respective accounts of the
Equity Investors (the "Registration" or "Registration Statement"). With respect
to the Registration, the Company agrees that it will:
(i) prepare and file the requisite Registration Statement with the
Securities and Exchange Commission (the "Commission") as expeditiously as
possible after the date hereof and use its best efforts to cause such
Registration to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective and
to comply with the provisions of the Act with respect to the disposition of all
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securities covered by the Registration Statement until such time as all of the
Registrable Securities have been disposed of in accordance with the intended
methods of disposition thereof set forth in the Registration Statement;
(iii) furnish to the Equity Investors such number of conformed
copies of the Registration Statement and each such amendment and supplement
thereto, such number of copies of the prospectus contained in the Registration
Statement and any other prospectus' filed under Rule 424 under the Act, in
conformity with the requirements of the Act, and such other documents, as the
Equity Investors may reasonably request;
(iv) use its best efforts to register or qualify the Registrable
Securities under such state securities or blue sky laws of such jurisdictions as
the Equity Investors shall reasonably request, keep such qualifications in
effect for the period referred to in Section 3(a)(ii) hereof, and take any other
action which may be reasonably necessary or advisable to enable the Equity
Investors to consummate the disposition of the Registrable Securities in such
jurisdictions, except that the Company shall not for any such purpose be
required to (a) qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified, (b) subject itself to taxation in any such
jurisdiction, or (c) consent to general service of process in any such
jurisdiction;
(v) immediately notify the Equity Investors at any time upon the
happening of any event as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and at the request of the Equity
Investors promptly prepare and furnish to the Equity Investors a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(b) The Company may require the Equity Investors to furnish the Company
with such information and undertakings regarding the Equity Investors and the
proposed distribution of the Registrable Securities as the Company may from time
to time reasonably request.
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(c) Each Equity Investor agrees (i) that upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(a)(v), Equity Investor will forthwith discontinue its disposition of the
Registrable Securities pursuant to the Registration Statement until receipt by
Equity Investor of the copies of the supplemented or amended prospectus
contemplated by Section 3(a)(v), and, if so directed by the Company, will
deliver to the Company all copies, other than permanent file copies, then in
Equity Investor's possession of the prospectus relating to the Registrable
Securities at the time of receipt of such notice, and (ii) that Equity Investor
will immediately notify the Company, at any time when a prospectus relating to
the Registration is required to be delivered under the Act, of the happening of
any event as a result of which information previously furnished by Equity
Investor to the Company in writing for inclusion in such prospectus contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
4. Indemnification.
(a) Indemnification by the Company. With respect to the Registration, the
Company will, and hereby does, indemnify and hold each Equity Investor harmless,
from and against any losses, claims, actions, damages or liabilities to which
Equity Investor may become subject under the Act or otherwise (collectively,
"Losses"), insofar as such Losses arise out of or are based upon any untrue
statement of a material fact contained in the Registration Statement under which
the Registrable Securities were registered under the Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein or any
document incorporated therein by reference, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
the Company will reimburse Equity Investor for any legal or other expenses
reasonably incurred by Equity Investor in connection with investigating or
defending any of such Losses; provided, however, that the Company shall not be
liable in any such case to the extent that any of such Losses arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, or in any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement, in
reliance upon and in conformity with information furnished to the Company in
writing by any such Equity Investor.
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(b) Indemnification by Investor. The Company may require, as a condition
to including the Registrable Securities in the Registration Statement, that the
Company shall have received from each Equity Investor an undertaking to
indemnify and hold harmless the Company (in the same manner and to the same
extent as set forth in Section 4(a) hereof), and each officer and director of
the Company, and each other person, if any, who controls the Company within the
meaning of the Act, with respect to any statement or alleged statement in or
omission or alleged omission from the Registration Statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or in any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished to the Company by such Equity Investor.
5. Miscellaneous.
(a) Modification. This Agreement may not be amended, modified, discharged
or terminated, nor may any of the provisions hereof be waived, except by an
instrument in writing signed by the party against whom any amendment,
modification, discharge, termination or waiver is sought.
(b) Entire Agreement. This instrument contains the entire agreement of the
parties hereto with respect to the subject matter hereof, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
(c) Law Governing. This Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of New York,
without giving effect to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
Odyssey Pictures Corporation
By:_____________________________________
▇▇▇ ▇. ▇▇▇▇▇, President
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EXHIBIT A
Name of Number of Number of Number of
Investor Shares Class A Wts. Class B Wts
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