EXHIBIT 4.5
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "AGREEMENT"), dated as of __________,
2003, is entered into by and between CDEX, Inc., a Nevada corporation (the
"COMPANY"), and ___________ (the "INVESTOR").
RECITALS:
The Investor would like to purchase from the Company, and the Company
would like to sell to the Investor, certain shares of the Class A Common Stock,
par value $0.001 per share, of the Company ("COMMON STOCK"), on the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the receipt and sufficiency of which are agreed upon by the
parties, the parties hereto hereby agree as follows:
SECTION 1. PURCHASES AND SALES OF COMMON STOCK.
(a) Upon the terms and subject to the conditions set forth herein, the
Company shall sell to the Investor, and the Investor agrees to purchase from the
Company, an aggregate of _______ shares of Common Stock (sometimes referred to
as the "PURCHASED SHARES") for a total price of $________ ("PURCHASED PRICE").
The purchase and sale of shares of Common Stock pursuant to this Agreement shall
occur at the scheduled time and place (the "Closing") as set forth below.
(b) The Closing shall take place at 10:00am (Eastern Standard Time) on
or before _______, 2003, by payment by the Investor to the Company of the
Purchase Price for the shares of Common Stock to be purchased, in cash by wire
transfer of immediately available funds (denominated in U.S. dollars) to the
Company's account, in exchange for issuance by the Company to the Investor of
the Purchased Shares.
(c) The Investor's obligation to consummate the Closing shall be
conditioned upon: (i) receipt by the Investor of evidence that a stock
certificate representing the Purchased Shares is being timely issued to the
Investor; and (ii) all of the representations and warranties of the Company set
forth in this Agreement being true and correct as of the Closing date. The
Company's obligation to consummate the Closing shall be conditioned upon: (i)
receipt by the Company of the Purchase Price, as noted above, and (ii) all of
the representations and warranties of the Investor set forth in this Agreement
being true and correct as of the Closing date.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO THE
INVESTOR.
The Company hereby represents and warrants to the Investor, as of the
date of this Agreement and as of the Closing date, as follows:
(a) ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of State of Nevada and has all
requisite corporate power and authority to own and lease its property and to
carry on its business as presently conducted.
(b) AUTHORIZATION OF AGREEMENT AND ISSUANCE OF THE PURCHASED SHARES;
ENFORCEABILITY; Non-Contravention. The execution, delivery and performance by
the Company of this Agreement and issuance of
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the Purchased Shares have been duly authorized by all requisite action on the
part of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable in accordance with its respective terms. The execution, delivery and
performance of this Agreement, and the compliance with the provisions hereof and
thereof by the Company, will not:
(i) materially violate any provision of law, statute,
ordinance, rule or regulation or any ruling, writ, injunction, order, judgment
or decree of any court, administrative agency or other governmental body;
(ii) materially conflict with or result in any material breach
of any of the terms, conditions or provisions of, or constitute (with due notice
or lapse of time, or both) a material default (or give rise to any right of
termination, cancellation or acceleration) under (A) any agreement, document,
instrument, contract, understanding, arrangement, note, indenture, mortgage or
lease to which the Company is a party or under which the Company or any of its
assets is bound or affected, (B) the Company's Certificate of Incorporation, or
(C) the Company's By-laws; or
(iii) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Company.
(c) CONSENTS AND APPROVALS. No authorization, consent, approval or
other order of, or declaration to or filing with, any governmental agency or
body (other than filings required to be made under applicable federal and state
securities laws) is required for the valid authorization, execution, delivery
and performance by the Company of this Agreement or the issuance of the
Purchased Shares that has not been obtained or made. The Company has obtained
all other consents that are necessary to permit the consummation of the
transactions contemplated hereby.
(d) SECURITIES LAWS. Based on the representations of the Investor set
forth in SECTION 3 of this Agreement, the offer, sale and issuance of the
Purchased Shares to the Investor hereunder will not be in violation of the
registration requirements of the United States Securities Act of 1933, as
amended (the "SECURITIES ACT").
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR TO THE
COMPANY.
The Investor represents and warrants to the Company, as of the date of
this Agreement and as of the Closing date, as follows:
(a) The execution, delivery and performance by the Investor of this
Agreement and issuance of the Purchased Shares have been duly authorized by all
requisite action on the part of the Investor. This Agreement has been duly
executed and delivered by the Investor and constitutes a valid and binding
obligation of the Investor, enforceable in accordance with its respective terms.
The execution, delivery and performance of this Agreement, and the compliance
with the provisions hereof and thereof by the Investor, will not:
(i) materially violate any provision of law, statute,
ordinance, rule or regulation or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other
governmental body;
(ii) materially conflict with or result in any materal breach
of any of the terms, conditions or provisions of, or constitute (with
due notice or lapse of time, or both) a material default (or give rise
to any right of termination, cancellation or acceleration) under any
agreement, document, instrument, contract, understanding, arrangement,
note, indenture, mortgage or lease to which the Investor is a party
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or under which the Investor or any of its assets are bound or affected
or conflict with any organizational or other governing document of the
Investor; or
(iii) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the
Investor.
(b) The Investor understands and acknowledges that the offering and
sale of the Purchased Shares pursuant to this Agreement is intended to be exempt
from registration under the Securities Act, and from qualification under any
applicable state securities law by virtue of Section 4(2) of the Securities Act
and Rule 506 of Regulation D thereunder, on the ground, among others, that no
distribution or public offering of Purchased Shares is to be effected and the
Purchased Shares will be issued by the Company in connection with a transaction
that does not involve any public offering within the meaning of Section 4(2) of
the Securities Act, the rules and regulations of the United States Securities
and Exchange Commission thereunder, or any comparable provision of applicable
securities laws or the rules and regulations of the regulatory authorities
thereunder.
(c) The Investor will acquire the Purchased Shares for investment for
the account of the Investor and not for the account of any other person, and not
with a view toward resale or other distribution thereof. The Investor
understands that the Purchased Shares have not been registered under the
Securities Act and applicable United States state securities laws and,
therefore, cannot be resold unless they are subsequently registered under the
Securities Act and applicable United States state securities laws or unless an
exemption from such registration is available. The Investor further understands
and agrees that, until so registered or transferred pursuant to the provisions
of Rule 144 under the Securities Act, the certificate(s) for the Purchased
Shares shall bear a legend, prominently stamped or printed thereon, reading
substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
The Investor understands and agrees that it is the Company's intent to
take action to authorize all of the Company's issued stock, including the
Purchased Shares, to be tradable on an open market. Investor understands and
agrees, however, that such actions may not be successful and, that Rule 144 may
not be available as a basis for exemption from registration.
(d) The Investor, during the course of this transaction and prior to
the purchase of the Purchased Shares, has had the opportunity to ask questions
of and receive answers from representatives of the Company concerning the terms
and conditions of the offering, and to obtain any additional information or
documents relative to the Company, its business and an investment, as the
Investor has deemed necessary. The Investor agrees and acknowledges, however,
that it has not been furnished any offering literature or prospectus concerning
the Company other than this Agreement and, in making its decision to acquire the
Purchased Shares hereunder, the Investor has relied solely upon this Agreement
and independent investigations made by the Investor. The Investor acknowledges
that no representations or warranties have been made to the Investor by the
Company, or any officer, employee, agent or affiliate of the Company, except as
contained in this Agreement.
(e) The Investor understands that the offering of Purchased Shares
pursuant to this Agreement is limited solely to "accredited investors," as that
term is defined in Regulation D under the Securities Act. The Investor
represents and warrants to the Company that the Investor is an "accredited
investor", as so defined, by
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virtue of the Investor meeting the criteria checked by the Investor on the
signature page hereto, and that the Investor's principal place of business is as
listed on the signature page hereto.
(f) The Investor has the capacity to protect its own interests in
connection with the purchase of the Purchased Shares. The purchase of the
Purchased Shares by the Investor is consistent with its general investment
objectives and the Investor understands that the purchase of the Purchased
Shares is a speculative investment that involves a high degree of risk. The
Investor can bear the economic risks of this investment and can afford a
complete loss of its investment in the Purchased Shares. The Investor
understands that there is no established market for the Company's capital stock
(including, without limitation, Common Stock) and there is no assurance that any
public market for such stock will develop. The Investor has no present need for
liquidity in connection with its purchase of the Purchased Shares.
(g) The Investor understands and acknowledges that the Purchased Shares
are "restricted securities" under United States securities laws and any
purported transfer of the Purchased Shares in violation of applicable law is
null and void. The Investor understands and acknowledges that the Company may,
at its discretion, refuse to register on its share transfer books any purported
transferee of the Purchased Shares in the event of an attempted transfer thereof
in violation of applicable law.
SECTION 4. INDEMNIFICATION. The Investor agrees to indemnify and hold
harmless the Company and its affiliates from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expenses reasonably incurred in investigating, preparing or
defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon: (a) any false representation and
warranty of the Investor contained in this Agreement or any breach or failure by
the Investor to comply with any covenant and/or agreement made by the Investor
herein; or (b) any transfer of the Purchased Shares contrary to such
representations and warranties or covenants and agreements.
SECTION 5. TERMINATION. Either party may terminate this Agreement upon
material breach of this Agreement by the other party that has not been cured in
its entirety within five (5) business days after written notice thereof has been
provided to the breaching party. The parties agree that a party's failure to
consummate the Installment Closings in accordance with the terms and conditions
of this Agreement constitute a material breach by such party of this Agreement.
SECTION 6. GENERAL PROVISIONS.
(a) REMEDIES. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party entitled to the benefit of such covenants or agreements may
proceed to protect and enforce their rights either by suit in equity and/or
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Agreement. The rights, powers and
remedies of the parties under this Agreement are cumulative and not exclusive of
any other right, power or remedy which such parties may have under any other
agreement or law. No single or partial assertion or exercise of any right, power
or remedy of a party hereunder shall preclude any other or further assertion or
exercise thereof.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of the Company and
the Investor and their respective permitted successors and assigns. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
(c) ENTIRE AGREEMENT. This Agreement (including any schedules and
exhibits hereto) contains the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior and contemporaneous
arrangements or understandings, whether written or oral, with respect thereto.
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(d) CHANGES. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to a writing executed by duly authorized
representatives of the Company and the Investor.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts each of
which, when so executed and delivered, shall be an original but all of which
together shall constitute one and the same instrument.
(f) SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(g) GOVERNING LAW; VENUE; JURISDICTION. The corporate law of the State
of Nevada will govern all questions concerning the relative rights of the
Company and the holders of its securities (including, without limitation, the
Purchased Shares). All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Maryland, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Maryland or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Maryland. The parties each agree
that venue for any dispute arising under this Agreement shall be proper in any
state court located in Xxxxxxxxxx County in the State of Maryland or in the
United States District Court for the District of Maryland (if a basis for
federal jurisdiction exists) and each party hereby irrevocably waives any right
to object to the maintenance of a suit in such courts on the basis of improper
venue or of inconvenience of forum. Each party irrevocably consents to the
non-exclusive jurisdiction of any state court located in Xxxxxxxxxx County in
the State of Maryland or in the United States District Court for the District of
Maryland (if a basis for federal jurisdiction exists).
(h) WAIVER OF JURY TRIAL. The parties to this Agreement each hereby
irrevocably waives, to the fullest extent permitted by law, any right to trial
by jury of any claim, demand, action or cause of action arising under this
Agreement, whether now existing or hereafter arising, and whether in contract,
tort, equity, or otherwise. The parties to this Agreement each hereby
irrevocably agrees and consents that any such claim, demand, action or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
(i) FUTURE TRANSACTIONS [FOR SIGNIFICANT INVESTMENTS]. The Parties
agree that Investor may purchase additional shares of CDEX stock on the schedule
and at the price noted below:
a. On or before ______________, 2003, Investor may purchase up to an
additional _________ shares of CDEX Class A Common Stock ("Second
Phase Stock") at a price per share of $______ and subject to the
same terms contained in this Agreement.
b. If Investor purchases additional Second Phase Stock noted above, on
or before ________________, 2003 Investor may invest up to the same
amount of funds used for the purchase of the Second Phase Stock for
the purchase of additional shares of CDEX stock at a price per
share of $_______ and subject to the same terms contained in this
Agreement.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
CDEX, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
ADDRESS:
CDEX, Incorporated
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx XX 00000
XXX
THE INVESTOR:
[See Attached Signature Page]
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SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT
By execution of this Signature Page, the Investor agrees to be bound by the
provisions of this Agreement and authorizes the Company to append this Signature
Page to a counterpart of the Agreement as evidence thereof. Pursuant to SECTION
3(E) of the Agreement, the undersigned represents and warrants that the Investor
is an "accredited investor" (as such term is defined in Regulation D under the
Securities Act) by reason of the qualifications described opposite the checked
box(es) set forth below.
[SIGNATURE BLOCK]
By:
Address:
Telephone No: ________________________________
THE INVESTOR IS AN "ACCREDITED INVESTOR" BY VIRTUE OF THE INVESTOR BEING:
_________ (1) a natural person (not an entity) whose individual net
worth, or joint net worth with his or her spouse, exceeds one
million dollars ($1,000,000);
_________ (2) a natural person (not an entity) who had individual income
in excess of two hundred thousand dollars ($200,000) in each
of 2001 and 2002 and has a reasonable expectation of having
individual income in excess of two hundred thousand dollars
($200,000) in 2003;
_________ (3) a natural person (not an entity) who had joint income with
his or her spouse in excess of three hundred thousand dollars
($300,000) in each of 2001 and 2002 and has a reasonable
expectation of having a joint income with his or her spouse in
excess of three hundred thousand dollars ($300,000) in 2003;
_________ (4) a trust, with total assets in excess of five million
dollars ($5,000,000), not formed for the specific purpose of
acquiring the Purchased Shares, which is directed by a person
who has such knowledge and experience in financial and
business matters that he or she is capable of evaluating the
merits and risks of an investment in Company;
_________ (5) a corporation, Massachusetts or similar business trust, or
a partnership, each with total assets in excess of five
million dollars ($5,000,000), which was not formed for the
specific purpose of acquiring the Purchased Shares; or
_________ (6) any entity in which all of the equity owners meet at least
one of the criteria set forth in categories (1) through (5),
above.
