EXHIBIT 2.1
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
This Subscription Agreement dated as of April __, 2004 (the
"AGREEMENT") is entered into by and among Amalgamated Technologies, Inc., a
Delaware corporation (the "COMPANY"), and the individuals and entities listed on
EXHIBIT A hereto (the "PURCHASERS").
BACKGROUND
WHEREAS, the Company is offering in a private placement to "accredited
investors" (as such term in defined in Regulation D ("REGULATION D") promulgated
under the Securities Act of 1933, as amended (the "SECURITIES ACT") a minimum
$3,000,000 (the "MINIMUM AMOUNT") and a maximum of up to $4,000,000 (the
"MAXIMUM AMOUNT") shares of common stock, $0.0001 par value per share, of the
Company (the "COMMON STOCK") (each share of Common Stock is being sold at an
offering price of $1.00 per share (the "SHARES") (the "Offering");
WHEREAS, the Purchaser desires to purchase that number of Shares set
forth on the signature page hereof on the terms and conditions hereinafter set
forth and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties hereto agree as
follows:
1. AUTHORIZATION AND SALE OF SHARES.
1.1 AUTHORIZATION. The Company has, or before the Initial Closing
(as defined in Section 2) will have, duly authorized the sale and issuance,
pursuant to the terms of this Agreement, of up to 4,000,000 shares of its Common
Stock.
1.2 SALE OF SHARES. Subject to the terms and conditions of this
Agreement, at the applicable Closing, the Company will sell and issue to each of
the Purchasers, and each of the Purchasers will purchase the number of Shares
set forth opposite such Purchaser's name on EXHIBIT A for the purchase price of
$1.00 per Share. The Shares being sold under this Agreement are sometimes
hereinafter collectively referred to as the "SECURITIES." The Company's
agreement with each of the Purchasers is a separate agreement, and the sale of
Shares to each of the Purchasers is a separate sale.
To subscribe for Shares, this Agreement must be properly completed,
executed and delivered to American Stock Transfer and Trust Company, 00 Xxxxxx
Xxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxxx, accompanied by a check
payable to "American Stock Transfer and Trust Company, Escrow Agent for
Amalgamated Technologies, Inc." (the "Escrow Agent"). A Purchaser desiring to
deliver the purchase price for the Shares in the form of wire transfer shall
wire to the Escrow Agent at: XX Xxxxxx Chase Bank, ABA# 021 000 021, Account #
323-005225, Attention: American Stock Transfer & Trust Co., as agent for
Amalgamated Technologies, Inc.. The minimum amount is $10,000, although, with
the consent of the Company, Purchasers may subscribe for, and the Company, in
its sole discretion, may accept less
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than the minimum amount. If the purchase price is paid by wire transfer, the
Purchaser shall (i) include the Purchaser's name in the wire transfer
instructions; and (ii) request from the bank or other financial institution that
is originating the transfer the federal wire number with respect to the and
retain that number for future reference.
1.3 USE OF PROCEEDS. The Company will use the proceeds from the
sale of the Shares for working capital and general corporate purposes.
2. THE CLOSING. The initial closing of the sale and purchase of no
less than the Minimum Amount under this Agreement shall take place at such time
and place as the Company may designate (the "INITIAL CLOSING," and the date on
which the Initial Closing occurs, the "INITIAL CLOSING DATE"). Following the
Initial Closing Date, and up to April 30, 2004, the Company may hold additional
closings (each, with the Initial Closing, a "CLOSING", and each such date, with
the Initial Closing Date, a "CLOSING Date") at such places and times as
designated by the Company until the earlier of (i) such time as the Company has
sold the Maximum Amount or (ii) April 30, 2004. There is no assurance that the
Maximum Amount will be sold.
Promptly following the applicable Closing, the Company shall
deliver to each of the Purchasers a certificate for the number of shares of
Common Stock being purchased by such Purchaser, registered in the name of such
Purchaser, against payment to the Company of the purchase price therefor by
check or wire transfer, as specified in EXHIBIT A
The Purchaser hereby authorizes and directs the Company to deliver the
Securities to be issued to the Purchaser pursuant to this Agreement directly to
the residential or business address indicated on the signature page hereto.
3. REPRESENTATIONS OF THE PURCHASERS. Each of the Purchasers
severally represents and warrants to the Company as follows:
(a) The Purchaser has received and carefully reviewed such
information and documentation relating to the Company that the Purchaser has
requested, including without limitation, the Company's filings with the United
States Securities and Exchange Commission (the "Commission").
(b) The Purchaser has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Company and the
Offering, and all such questions, if any, have been answered to the full
satisfaction of the Purchaser.
(c) The Purchaser understands that the Company has determined that
the exemption from the registration provisions of the Securities Act provided by
Regulation D is applicable to the offer and sale of the Securities, based, in
part, upon the representations, warranties and agreements made by the Purchaser
herein.
(d) Except as set forth herein, no representations or warranties
have been made to the Purchaser by the Company or any agent, employee or
affiliate of the Company and in entering into this transaction, the Purchaser is
not relying upon any information other than the results of independent
investigation by the Purchaser.
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(e) The Purchaser has full power and authority to execute and
deliver this Agreement and to perform the obligations of the Purchaser hereunder
and this Agreement is a legally binding obligation of the Purchaser in
accordance with its terms.
(f) REGULATION D.
(i) The Purchaser understands and acknowledges that: (A) the
Securities acquired pursuant to this Agreement have not been registered under
the Securities Act and are being sold in reliance upon an exemption from
registration afforded by Regulation D; and that such Securities have not been
registered with any state securities commission or authority; (B) pursuant to
the requirements of Regulation D, the Securities may not be transferred, sold or
otherwise exchanged unless in compliance with the provisions of Regulation D
and/or pursuant to registration under the Securities Act, or pursuant to an
available exemption thereunder; and (C) other than as set forth in Section 5.1
of this Agreement, the Company is under no obligation to register the Securities
under the Securities Act or any state securities law, or to take any action to
make any exemption from any such registration provisions available.
(ii) The Purchaser is an accredited investor within the
meaning of Rule 501 of Regulation D, is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investment shares representing an investment decision like that involved in the
purchase of the Securities.
(iii) The Purchaser is purchasing the Securities for his, her
or its own account for investment only and has no intention of selling or
distributing the Securities and no other person has any interest in or
participation in the Securities or any right, option, security interest, pledge
or other interest in or to the Securities. The Purchaser recognizes that an
investment in the Securities involves a high degree of risk, including a risk of
total loss of the Purchaser. The Purchaser understands, acknowledges and agrees
that it must bear the economic risk of its investment in the Securities for an
indefinite period of time and has knowledge and experience in financial and
business matters such that it is capable of evaluating the risks of the
investment in the Securities and the Purchaser understands, acknowledges and
agrees that prior to any such offer or sale, the Company may require, subject to
the fulfillment of the Company's obligations under Section 6 of this Agreement,
as a condition to effecting a transfer of the Securities, an opinion of counsel,
acceptable to the Company, as to the registration or exemption therefrom under
the Securities Act and any state securities acts, if applicable.
(iv) The Purchaser acknowledges that the Securities will bear
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR TNX TELEVISION
HOLDINGS, INC. SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER
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THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
(g) Neither the Purchaser, nor any affiliate of the Purchaser or
any person acting on his, her or its behalf, has recently sold shares of
unregistered Common Stock of the Company.
4. CONDITION TO THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company under Section 1.2 of this Agreement are subject to fulfillment, or the
waiver, of the following condition on or before the Closing:
4.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchasers contained in Section 3 shall be
true on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date (except that
any representation or warranty expressly stated to have been made or given as of
a specific date need be true only as of such date).
5. COVENANTS OF THE COMPANY.
5.1 PIGGYBACK REGISTRATION RIGHTS. If at any time the Company
shall determine to register under the Securities Act any of its securities
(other than on Form S-8 or Form S-4 or their then equivalents and other than
shares to be issued solely (i) in connection with any acquisition of any entity
or business (ii) upon the exercise of stock options, or (iii) pursuant to
employee benefit plans), it shall send to each holder of Registrable Shares (as
defined below), including each holder who has the right to acquire Registrable
Shares, written notice of such determination and, if within thirty (30) days
after receipt of such notice, such holder shall so request in writing, the
Company shall use its commercially reasonable efforts to include in such
registration statement all or any part of the Registrable Shares such holder
requests to be registered therein; provided that, if, in connection with any
offering involving an underwriting of Common Stock to be issued by the Company,
the managing underwriter shall prohibit the inclusion of shares of Common Stock
by selling holders in such registration statement or shall impose a limitation
on the number of shares of such Common Stock which may be included in any such
registration statement because, in its judgment, such limitation is necessary to
effect an orderly public distribution, and such limitation is imposed pro rata
with respect to all securities whose holders have a contractual, incidental
("piggyback") right to include such securities in the registration statement and
as to which inclusion has been requested pursuant to such right and there is
first excluded from such registration statement all shares of Common Stock
sought to be included therein by (i) any holder thereof not having any such
contractual, incidental registration rights, and (ii) any holder thereof having
contractual, incidental registration rights subordinate and junior to the rights
of the holders of Registrable Shares, the Company shall then be obligated to
include in such registration statement only such limited portion (which may be
none) of the Registrable Shares with respect to which such holder has requested
inclusion hereunder. "Registrable Shares" means the shares of Common Stock
included in the Shares; provided, however, that shares of Common Stock shall
cease to be Registrable Shares upon any sale of such shares pursuant to (i) a
registration statement filed under the Securities Act, or (ii) Rule 144
promulgated under the Securities Act.
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6. TRANSFER OF SECURITIES. The Subscriber is aware that the Company
will make a notation in its appropriate records and issue "stop transfer"
instructions to its transfer agent with respect to the restrictions on the
transferability of such Securities.
(a) The Purchaser understands that this subscription is not binding
upon the Company until the Company accepts it, which acceptance is at the sole
discretion of the Company and is to be evidenced by the Company's execution of
this Agreement where indicated. This Agreement shall be null and void if the
Company does not accept it as aforesaid. In the event the Company does not
accept the Offering proceeds, the Offering will not be completed and all
Offering proceeds will thereafter be promptly returned to the Purchasers without
interest or deduction. The undersigned understands that the Company may, in its
sole discretion, reject this subscription, in whole or in part, and/or reduce
this subscription in any amount and to any extent, whether or not pro rata
reductions are made of any other investor's subscription.
(b) Subject to applicable state securities laws, the subscription
delivered to the Company by the Purchaser pursuant to this Agreement is not
subject to revocation by the Purchaser, but may be rejected by the Company, in
whole or in part, in the Company's sole discretion, in which event the purchase
price and execution copy of this Agreement submitted will be returned (by mail)
to the undersigned without interest or deduction within 15 business days
thereafter.
7. The Shares are subject to standard anti-dilution provisions in the
event of forward or reverse stock splits or recapitalizations. For example, if
the Company engages in a two for one reverse stock split, a holder of 100,000
Shares will be affected as follows:
Pre-Split Ownership:
100,000 Shares
Post-Split Ownership:
50,000 Shares
8. MISCELLANEOUS.
8.1 SUCCESSORS AND ASSIGNS. This Agreement and any rights and
obligations hereunder may not be transferred or assigned by the Purchaser
without the prior written consent of the Company. This Agreement shall inure to
the benefit of, and be binding upon the Company and the Purchaser and their
respective heirs, legal representatives and permitted assigns.
8.2 SURVIVAL. All representations and warranties and all
covenants, agreements and obligations made by the Company or the Purchasers in
this Agreement, or in any instrument or document furnished in connection with
this Agreement or the transactions contemplated hereby, shall survive the
Closing and any investigation at any time made by or on behalf of any
indemnified party.
8.3. INDEMNIFICATION. The Purchaser agrees to indemnify the
Company and hold it harmless from and against any and all losses, damages,
liabilities, costs and expenses
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which it may sustain or incur in connection with the breach by the Purchaser of
any representation, warranty or covenant made by the Purchaser .
8.4 NOTICES. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally or mailed by certified or registered mail, return receipt requested,
postage prepaid, as follows:
(a) If to the Company, to Amalgamated Technologies,
Inc., c/o Xxxxxx Capital, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx Xxxxx or to such other address as the Company or the
undersigned shall have designated to the other by like notice.
(b) If to a Purchaser, at his, her or its address set
forth on EXHIBIT A, or at such other address or addresses as may have been
furnished to the Company in writing by such Purchaser.
8.5 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter.
8.6 AMENDMENTS AND WAIVERS. Except as otherwise expressly set
forth in this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and the majority of the Purchasers. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
8.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
8.8 SECTION HEADINGS. The section headings are for the convenience
of the parties and in no way alter, modify, amend, limit, or restrict the
contractual obligations of the parties.
8.9 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
8.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
[SIGNATURE PAGE TO FOLLOW]
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SIGNATURE PAGE DATE SIGNED: , 2004
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NUMBER OF SHARES: ----------------
MULTIPLIED BY OFFERING PRICE PER SHARE: x $1.00
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EQUALS AMOUNT: = $
-----------------
--------------------------- ---------------------------
Signature Second Signature
(if purchasing jointly)
--------------------------- ---------------------------
Printed Name Printed Second Name
--------------------------- ---------------------------
Entity Name Entity Name
--------------------------- ---------------------------
Address Address
--------------------------- ---------------------------
City, State and Zip Code City, State and Zip Code
--------------------------- ---------------------------
Telephone-Business Telephone-Business
--------------------------- ---------------------------
Facsimile-Business Facsimile-Business
--------------------------- ---------------------------
Tax ID # or Social Security # Tax ID # or Social Security #
Name in which securities should be issued:
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This Agreement is agreed to and accepted as of ____________, 2004.
AMALGAMATED TECHNOLOGIES, INC.
By:
-----------------------------
Name:
Title:
EXHIBIT A
LIST OF PURCHASERS
NAME AND ADDRESS NO. OF SHARES AGGREGATE
OF PURCHASER ------------- PURCHASE PRICE
------------ --------------
$
$
$
$
$
$
$
$
$
TOTALS: $
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