EXHIBIT 10.2
SUBSCRIPTION AGREEMENT
To: Onny Investment Limited
Ladies and Gentlemen:
The undersigned subscriber ("Subscriber") hereby tenders this
Subscription Agreement (this "Agreement") in accordance with and subject to the
terms and conditions set forth herein:
1. Subscription.
1.1 Subscriber hereby subscribes for and agrees to purchase the number
of shares (the "Shares") of convertible preferred stock (the "Preferred
Shares"), of Onny Investment Ltd., a British Virgin Islands corporation (the
"Company"), indicated on the signature page attached hereto at the purchase
price set forth on such signature page (the "Purchase Price"). Subscriber has
made payment by wire transfer of funds in accordance with instructions from the
Company in the full amount of the Purchase Price of the Preferred Shares for
which Subscriber is subscribing (the "Payment").
1.2 This Agreement is part of an offering of Preferred Shares being
conducted by the Company (the "Offering"). Under the terms of the Offering, the
Company seeks to raise $5 million (USD) (proceeds from the Offering being
referred to herein as the "Gross Offering Proceeds") based on an Offering price
of $500 per share, which represents 25.2% of the equity ownership in the
Company. As soon as reasonably practicable following the closing of the
Offering, such Preferred Shares shall be converted on a one for one basis into
shares of the Company's common capital stock and then exchanged for shares of
the common stock (the "Public Company Shares") of a US domiciled company that is
obligated to file periodic reports with the US Securities and Exchange
Commission and whose shares are eligible for quotation on the NASD Over-the
Counter Bulletin Board (the "Public Company") upon the closing of a stock
exchange transaction (the "Exchange Transaction") between the Company and the
Public Company. Upon consummation of the Exchange Transaction, it is anticipated
that Subscribers in the Offering will own 20 % of the issued and outstanding
common stock of the Public Company. The Subscribers and the Company acknowledge
and agree that immediately after the consummation of the Exchange Transaction,
the Public Company shall issue to Xx. Xxxxx Xxx Xxxx (a shareholder of the
Company) an additional 4,723,056 shares of the Public Company Stock (the "Post
Closing Shares") to which she would otherwise have been entitled under the
Exchange Transaction.
1.3 The Company agrees that neither it nor the Public Company shall
undertake any other financings (other than acquisitions utilizing capital stock
of the Company or the Public Company, it being understood that the shares
issuable in such transaction shall not be registered until the Registration
Statement is deemed effective by the SEC) involving Equity Common Shares (as
defined below) on terms more favorable than those in the Offering until thirty
(30) days after the effectiveness of the Registration Statement (as that term is
defined below) covering all of the Public Company Shares, without the prior
written approval of the holders of a majority of the holders of the Public
Company Shares. The Company and the Public Company may complete a financing on
terms that are less favorable than those in the Offering at their discretion;
however, the Company acknowledges that the Equity Common Shares sold in such an
offering can not be registered for resale until after the date the Registration
Statement is declared effective by the SEC. The term "Equity Common Shares" as
used herein shall mean all capital stock of the Company or the Public Company,
plus all rights, warrants, options, convertible preferred shares, indebtedness,
exchangeable securities or other rights, exercisable for or convertible into,
directly or indirectly, capital stock of the Company or the Public Company.
Notwithstanding the above, "Equity Common Shares" shall not include any common
shares of the Public Company issued pursuant to any incentive or stock option
plan of the Public Company approved by the shareholders or the board of
directors of the Public Company.
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1.4 Subscriber understands that it will not earn interest on any funds
held by the Company prior to the date of closing of the Offering. The funds will
be held in escrow pending the closing of the Offering. Attached as Exhibit "A"
hereto is the form of Escrow Agreement (the "Escrow Agreement") that will govern
the maintenance of funds until the sooner of the closing of the Offering or the
expiration thereof. The Closing Date of the Offering is referred to as the
"Closing Date." The Closing shall occur on or before October 15, 2005. The
Company shall have the right to a one time 45 day extension of the Closing Date
upon receipt of the written consent of all Subscribers to the Offering . If the
Offering is not closed by said date all Gross Offering Proceeds then in escrow
shall be returned to the Subscriber. The closing shall be deemed to have
occurred upon the satisfaction of the following conditions and in the following
sequence: (a) confirmation from the Escrow Agent, as identified in the Escrow
Agreement, that $5million is on deposit; (b) participation by the each of the
Subscribers to the Offering in the Exchange Transaction; and (c) the Public
Company files a registration statement on a suitable form (the "Registration
Statement") with the U.S. Securities and Exchange Commission to register the
Public Company Shares held by the Subscribers to the Offering. Gross Offering
Proceeds will not be released to either the Company or the Public Company until
such time as each of the forgoing has been completed. Certificates will be
issued in the name of each such Subscriber, and the name of such Subscriber will
be registered on the stock transfer books of the Public Company as the record
owner of Public Company Shares. As of the filing date of the Registration
Statement, the Public Company will promptly thereafter issue to each subscriber
a stock certificate for the Public Company Shares to which it is entitled.
1.5 Subscriber hereby agrees to be bound hereby upon (i) execution and
delivery to the Company of the signature page to this Agreement and (ii) written
acceptance on the Closing Date by the Company of Subscriber's subscription,
which shall be confirmed by faxing to the Subscriber the signature page to this
Agreement that has been executed by the Company (the "Subscription").
2. Offering Materials
Subscriber represents and warrants that it is in receipt of and that it
has carefully read the following items:
(a) The Company's business plan, the form of which is attached
hereto (the "Business Plan");
(b) The rights and privileges are described in the Restated
and Amended Articles of Incorporation of the Company;
(c) The audited financial statements of Hainan Helpson
Medicine & Biotechnique Co., Ltd., the Company's sole wholly-owned
subsidiary in China ("Helpson"), for the fiscal years ended December
31, 2003 and 2004 and June 30, 2005 (the "Financial Statements");
(d) The Exchange Agreement;
(e) The Escrow Agreement; and
(f) A draft of the Registration Statement.
The documents listed in this Section 2 shall be referred to herein as
the "Disclosure Documents."
3. Conditions to Subscriber's Obligations.
3.1 The obligation of Subscriber to close the transaction contemplated
by this Agreement (the "Transaction") is subject to the satisfaction on or prior
to the Closing Date of the following conditions set forth in Sections 3.2
through 3.8 hereof.
3.2 The Company shall have executed this Agreement.
3.3 The Board of Directors of the Company shall have adopted
resolutions consistent with Section 4.1(d) below.
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3.4 Subscriber shall have received copies of all documents and
information which it may have reasonably requested in connection with the
Offering.
3.5 The Exchange shall have been simultaneously consummated.
3.6 The Registration Statement shall have been filed with the SEC. It
being further acknowledged that the effectiveness of the Registration Statement
shall be maintained until the earlier of the second anniversary of the
declaration of its effectiveness by the SEC or the date all the shares of the
common stock registered therein have been sold.
3.7 The representations and warranties of the Company shall be true and
correct on and as of the Closing Date as though made on and as of such date.
3.8 If so requested by Subscriber, the Company shall have delivered to
the custodian for the Subscriber duly executed certificate(s), registered in the
name of Subscriber's nominee, representing the Public Company Shares.
4. Representations and Warranties; Covenants; Survival.
4.1 The Company represents and warrants to Subscriber that, at the date
of this Agreement and as of the Closing Date:
(a) The Company and each of its subsidiaries are corporations
duly organized, validly existing and in good standing under the laws of
their jurisdiction of incorporation, with all requisite corporate power
and authority to carry on the business in which they are engaged and to
own the properties they own, and the Company has all requisite power
and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The Company and each of its
subsidiaries are duly qualified and licensed to do business and are in
good standing in all jurisdictions where the nature of their business
makes such qualification necessary, except where the failure to be
qualified or licensed would not have a material adverse effect on the
business of the Company and its subsidiaries, taken as a whole. The
ownership of Helpson by the Company complies with all applicable laws
of the People's Republic of China.
(b) Except as otherwise described in the Disclosure Documents,
there are no legal actions or administrative proceedings or
investigations instituted, or to the best knowledge of the Company
threatened, against the Company or its subsidiaries, that could
reasonably be expected to have a material adverse effect on the Company
or any subsidiary, any of the Preferred Shares, or the business of the
Company and its subsidiaries, or which concerns the transactions
contemplated by this Agreement.
(c) The audited financial statements of Helpson as of December
31, 2003 and 2004, and as of June 30, 2005 including the notes
contained therein, fairly present the financial position of Helpson at
the respective dates thereof and the results of its operations for the
periods purported to be covered thereby. Such financial statements have
been prepared in conformity with generally accepted accounting
principles consistently applied with prior periods subject to any
comments and notes contained therein. Since June 30, 2005, there has
been no material adverse change in the financial condition of the
Company or Helpson from the financial condition stated in such
financial statements.
(d) The Company, by appropriate and required corporate action,
has, or will have prior to the closing, duly authorized the execution
of this Agreement and duly effected the issuance of the convertible
Preferred Shares. The convertible Preferred Shares are not subject to
preemptive or other rights of any stockholders of the Company and when
issued in accordance with the terms of this Agreement, the Preferred
Shares will be validly issued, fully paid and nn-assessable and free
and clear of all pledges, liens and encumbrances.
(e) Performance of this Agreement and compliance with the
provisions hereof will not violate any provision of any applicable law
or of the charter documents of the Company, or of any of its
subsidiaries, and, will not conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default
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under, or result in the creation or imposition of any lien, charge or
encumbrance upon, any of the properties or assets of the Company, or of
any of its subsidiaries, pursuant to the terms of any indenture,
mortgage, deed of trust or other agreement or instrument binding upon
the Company, or any of its subsidiaries, other than such breaches,
defaults or liens which would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. The Company is not in
default under any provision of its organizational documents or under
any provision of any agreement or other instrument to which it is a
party or by which it is bound or of any law, governmental order, rule
or regulation so as to affect adversely in any material manner its
business or assets or its condition, financial or otherwise.
(f) The Disclosure Documents, taken together, do not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein to make the statements contained
therein not misleading.
(g) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(h) No registration, authorization, approval, qualification or
consent of any court or governmental authority or agency is necessary
in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Preferred Shares under this
Agreement.
(i) The Company is not now, and after the sale of the
Preferred Shares under this Agreement and under all other agreements
and the application of the net proceeds from the sale of the Preferred
Shares will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(j) Subject to the accuracy of the Subscriber' representations
and warranties in Section 7 of this Agreement, the offer, sale, and
issuance of the Preferred Shares in conformity with the terms of this
Agreement constitute transactions made exempt from the registration
requirements of Section 5 of the Securities Act of 1933, as amended
(the "Securities Act") and from the registration or qualification
requirements of the laws of any applicable state.
(k) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made
any offers or sales in any security or solicited any offers to buy any
security under circumstances that would require registration under the
Securities Act of the issuance of the Shares to the Subscriber.
(l) Xx. Xxxxx Xxx Xxxx will escrow that number of shares of
the Public Company's common stock, that she will receive as a result of
the Exchange Transaction, representing 20% of the Public Company's
issued and outstanding common capital stock immediately following the
closing of the Exchange Transaction (the "Make Good Pool"), so that in
the event the consolidated financial statements of the Public Company
do not reflect $8 million of Net Income ("NI") for the fiscal year
ending December 31, 2006 (the "Guaranteed NI") the Make Good Shares can
be distributed on a pro rata to the Subscribers of this Offering in
accordance with the following formula:
Make Good Shares = (($8 million - Actual FY 06 US GAAP Net
Income) /$8m)X Make Good Pool
If required, the Make Good Shares will be delivered to
participants in the Offering within ten (10) business days of the date
the audit report for the period is filed with the SEC.
(m) Halter Financial Group agrees that, without the express
written consent of the Company, it will not sell, transfer or otherwise
dispose of, except to its affiliates, fifty percent (50%) of its
holdings in the Public Company until the earlier of the date the
Company completes an equity based financing or the date which is nine
months following the Closing of this Offering
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(n) Immediately following the Closing, but no later than
9:30am Eastern Time on the following business day, the Company shall
issue a press release, in a form suitable to the Subscribers,
disclosing the material terms of the Offering.
(o) The Company agrees that all required documents related to
the Offering will be filed as exhibits to the Current Report on form
8-K to be filed with the SEC by the Public Company following the
Exchange Transaction.
4.2 Capital Structure. The authorized capital of the Company is Five
Million Dollars US$5,000,000.00 divided into 40,000 shares of Ordinary Shares of
US$100 par value and 10,000 shares of Preferred Shares of US$100 par value.
(a) Ordinary Shares. A total of 40,000 authorized Ordinary
Shares, each with a par value of US$100 per shares, of which 29,700
shares have been issued and allotted.
(b) Preferred Shares. Of a total of 10,000 authorized
Preferred Shares, each with a par value of US$100 per share, none of
which are issued and allotted before the Closing.
(c ) On the date of Closing, there will be totally in the
amount of 29,700 Ordinary Shares and 10,000 Preferred Shares issued and
outstanding.
4.3 The Company shall indemnify and hold harmless the Subscribers from
and against all fees, commissions or other payments owing by the Company to any
other person or firm acting on behalf of the Company hereunder.
5. Transfer and Registration Rights.
5.1 Subscriber acknowledges that it is acquiring the Preferred Shares
for its own account and for the purpose of investment and not with a view to any
distribution or resale thereof within the meaning of the Securities Act and any
applicable state or other securities laws ("State Acts"). Subscriber further
agrees that, except in connection with the Exchange Transaction, it will not
sell, assign, transfer or otherwise dispose of any of the Preferred in violation
of the Securities Act or state blue sky laws and acknowledges that, in taking
unregistered Preferred Shares, it must continue to bear economic risk in regard
to its investment for an indefinite period of time because of the fact that such
securities have not been registered under the Securities Act or state blue sky
laws and further realizes that such securities cannot be sold unless
subsequently registered under the Securities Act or an exemption from such
registration is available.
5.2 The Preferred Shares issued pursuant to this Agreement may not be
transferred except in a transaction which is in compliance with the Securities
Act.
6. Closing.
6.1 The closing of the Offering shall take place at such time and at
such place as the Company shall determine, provided that the Closing shall occur
no later than October 15, 2005, unless otherwise extended pursuant to the terms
of this Agreement. If the closing of the sale of Preferred Shares to Subscriber
has not occurred within the time frame provided in the previous sentence, then
Subscriber may terminate this Agreement by giving written notice to the Company.
7. Subscriber Representations. Subscriber hereby represents, warrants
and acknowledges and agrees with the Company as follows:
7.1 Subscriber has been furnished with and has carefully read the
Disclosure Documents as set forth in Section 2 hereto and is familiar with the
terms of the Offering. With respect to individual or partnership tax and other
economic considerations involved in this investment, Subscriber is not relying
on the Company (or any agent or representative of any of the Company).
Subscriber has carefully considered and has, to the extent Subscriber believes
such discussion necessary, discussed with Subscriber's legal, tax, accounting
and financial advisers the suitability of an investment in the Preferred Shares
for Subscriber's particular tax and financial situation.
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7.2 Subscriber has had an opportunity to inspect relevant documents
relating to the organization and operations of the Company. Subscriber
acknowledges that all documents, records and books pertaining to this investment
which Subscriber has requested have been made available for inspection by
Subscriber and Subscriber's attorney, accountant or other adviser(s).
7.3 Subscriber and/or Subscriber's advisor(s) has/have had a reasonable
opportunity to ask questions of and receive answers and to request additional
relevant information from a person or persons acting on behalf of the Company
concerning the Offering.
7.4 Subscriber is not subscribing for the Preferred Shares as a result
of or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar.
7.5 Subscriber is an "accredited investor," within the meaning of Rule
501(a) of Regulation D under the Securities Act ("Regulation D"). Subscriber, by
reason of Subscriber's business or financial experience or the business or
financial experience of Subscriber's professional advisers who are unaffiliated
with and who are not compensated by the Company or any affiliate, directly or
indirectly, can be reasonably assumed to have the capacity to protect
Subscriber's own interests in connection with the transaction. Subscriber
further acknowledges that he has read the written materials provided by the
Company.
7.6 Subscriber has adequate means of providing for Subscriber's current
financial needs and contingencies, is able to bear the substantial economic
risks of an investment in the Preferred Shares for an indefinite period of time,
has no need for liquidity in such investment and, at the present time, could
afford a complete loss of such investment.
7.7 Subscriber has such knowledge and experience in financial, tax and
business matters so as to enable Subscriber to use the information made
available to Subscriber in connection with the Offering to evaluate the merits
and risks of an investment in the Preferred Shares and to make an informed
investment decision with respect thereto.
7.8 Subscriber recognizes that investment in the Preferred Shares
involves substantial risks. Subscriber further recognizes that no Federal or
state agencies have passed upon this offering of the Preferred Shares or made
any finding or determination as to the fairness of this investment.
7.9 Subscriber acknowledges that each certificate representing the
Public Company Shares shall contain a legend substantially in the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE
EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL (WHICH OPINION
AND COUNSEL ARE SATISFACTORY TO THE COMPANY) CONFIRMING THE
AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
7.10 If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust or estate: (i) such partnership, corporation,
trust or estate has the full legal right and power and all authority and
approval required (a) to execute and deliver, or authorize execution and
delivery of, this Agreement and all other instruments executed and delivered by
or on behalf of such partnership, corporation, trust or estate in connection
with the purchase of the Preferred Shares, (b) to delegate authority pursuant to
a power of attorney and (c) to purchase and hold such Preferred Shares; (ii) the
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signature of the party signing on behalf of such partnership, corporation, trust
or estate is binding upon such partnership, corporation, trust or estate; and
(iii) such partnership, corporation or trust has not been formed for the
specific purpose of acquiring the Preferred Shares, unless each beneficial owner
of such entity is qualified as an "accredited investor" within the meaning of
Regulation D and has submitted information substantiating such individual
qualification.
7.11 If Subscriber is a retirement plan or is investing on behalf of a
retirement plan, Subscriber acknowledges that investment in the Preferred Shares
poses risks in addition to those associated with other investments, including
the inability to use losses generated by an investment in the Preferred Shares
to offset taxable income.
8. Understandings.
Subscriber understands, acknowledges and agrees with the Company as
follows:
8.1 Subscriber hereby acknowledges and agrees that upon notice of
acceptance from the Company pursuant to Section 1.3, the Subscription hereunder
is irrevocable by Subscriber, that, except as required by law or as permitted
under Section 6.1 above, Subscriber is not entitled to cancel, terminate or
revoke this Agreement or any agreements of Subscriber hereunder and that this
Subscription Agreement and such other agreements shall survive the death or
disability of Subscriber and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors, legal representatives and permitted assigns. If Subscriber is more
than one person, the obligations of Subscriber hereunder shall be joint and
several and the agreements, representations, warranties and acknowledgments
herein contained shall be deemed to be made by and be binding upon each such
person and his or her heirs, executors, administrators, successors, legal
representatives and permitted assigns.
8.2 No federal or state agency has made any findings or determination
as to the fairness of the terms of this Offering for investment, nor any
recommendations or endorsement of the Preferred Shares.
8.3 The Offering is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Rule 506 of Regulation D thereunder, which is in part dependent
upon the truth, completeness and accuracy of the statements made by Subscriber
herein.
8.4 It is understood that in order not to jeopardize the Offering's
exempt status under Section 4(2) of the Securities Act and Regulation D, any
transferee may, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
8.5 No person or entity acting on behalf, or under the authority, of
Subscriber is or will be entitled to any broker's, finder's or similar fee or
commission in connection with this Subscription.
8.6 Subscriber acknowledges that the information furnished in this
Agreement by the Company to Subscriber or its advisers in connection with the
Offering, is confidential and nonpublic and agrees that all such written
information which is material and not yet publicly disseminated by the Company
shall be kept in confidence by Subscriber and neither used by Subscriber for
Subscriber's personal benefit (other than in connection with this Subscription),
nor disclosed to any third party, except Subscriber's legal and other advisers
who shall be advised of the confidential nature of such information, for any
reason; provided, however, that this obligation shall not apply to any such
information that (i) is part of the public knowledge or literature and readily
accessible at the date hereof, (ii) becomes a part of the public knowledge or
literature and readily accessible by publication (except as a result of a breach
of this provision) or (iii) is received from third parties (except third parties
who disclose such information in violation of any confidentiality agreements or
obligations, including, without limitation, any subscription agreement entered
into with the Company). The representations, warranties and agreements of
Subscriber and the Company contained herein and in any other writing delivered
in connection with the Offering shall be true and correct in all material
respects on and as of the Closing Date of such Subscription as if made on and as
of the date the Company executes this Agreement and shall survive the execution
and delivery of this Agreement and the purchase of the Preferred Shares.
IN MAKING AN INVESTMENT DECISION, SUBSCRIBER MUST RELY ON ITS
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THE PREFERRED SHARES
HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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9. Miscellaneous.
9.1 Except as set forth elsewhere herein, any notice or demand to be
given or served in connection herewith shall be deemed to be sufficiently given
or served for all purposes by being sent as registered or certified mail, return
receipt requested, postage prepaid, in the case of the Company, addressed to it
at the address set forth below:
Insert the Company's address
and in the case of Subscriber to the address set forth below:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
9.2 This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the British Virgin Islands, and shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed to be modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
9.3 In any action, proceeding or counterclaim brought to enforce any of
the provisions of this Agreement or to recover damages, costs and expenses in
connection with any breach of the Agreement, the prevailing party, as determined
by the finder of fact, shall be entitled to be reimbursed by the opposing party
for all of the prevailing party's reasonable outside attorneys' fees, costs and
other out-of-pocket expenses incurred in connection with such action, proceeding
or counterclaim.
9.4 This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth herein. The
Company acknowledges that all material facts upon which it has relied in forming
its decision to enter into this Agreement are expressly set forth herein and
further acknowledges that the Subscriber has not made any representations,
express or implied, which are not set expressly set forth herein. This Agreement
supercedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
9.5 The Company shall indemnify, defend and hold harmless Subscriber
and each of its agents, partners, members, officers, directors, representatives,
or affiliates (collectively, the "Subscriber Indemnities") against any and all
losses, liabilities, claims and expenses, including reasonable attorneys' fees
("Losses"), sustained by Subscriber Indemnities resulting from, arising out of,
or connected with any material inaccuracy in, breach of, or nonfulfillment of
any representation, warranty, covenant or agreement made by or other obligation
of the Company contained in this Agreement (including the Exhibits hereto) or in
any document delivered in connection herewith.
9.6 Subscriber shall indemnify, defend and hold harmless the Company
and each of its agents, partners, members, officers, directors, representatives,
or affiliates (collectively, the "Company Indemnities") against any and all
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Losses sustained by the Company Indemnities resulting from, arising out of, or
connected with any material inaccuracy in, breach of, or non-fulfillment of any
representation, warranty, covenant or agreement made by or other obligation of
Subscriber contained in this Agreement (including the Exhibits hereto) or in any
document delivered in connection herewith.
9.7 The Company shall not issue any public statement or press release,
or otherwise disclose in any manner the identity of the Subscriber or that
Subscriber has purchased the Preferred Shares, without the prior written consent
of the Subscriber, except as may be required by applicable law; provided,
however, that the Company may disclose such information in the Registration
Statement filed with the SEC.
10. Signature. The signature page of this Agreement is contained as
part of the applicable Subscription Package, entitled "Signature Page."
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SUBSCRIPTION AGREEMENT GENERAL INSTRUCTIONS
General Instructions
These Subscription Documents contain all documents necessary to
subscribe for Preferred Shares ("Preferred Shares"), of Onny Investment Limited,
a British Virgin Islands corporation (the "Company").
You may subscribe for Preferred Shares by completing the Subscription
Agreement in the following manner:
1. On line (a) of the signature page state the number of Preferred
Shares you wish to purchase.
2. On line (b) of the signature page state the total cost of the
Preferred Shares you wish to purchase. To obtain the cost, multiply the number
of Preferred Shares you desire to purchase by the purchase price per Preferred
Share set forth therein.
3. Sign and state your address, telephone number and social security or
other taxpayer identification number on the lines provided on the signature page
to the Subscription Agreement and deliver the completed Subscription Agreement
with payment of the entire purchase price of the Preferred Shares subscribed for
as set forth below. Payment should be made in United States Dollars by wire
transfer to:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
The Subscription Agreement Signature Page must be completed and signed by each
investor. Send all documents to:
THE COMPLETED SUBSCRIPTION AGREEMENT SHOULD BE RETURNED IN ITS ENTIRETY TO THE
ESCROW AGENT DESIGNATED ABOVE.
Acceptance of Delivery
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of the completed Subscription Agreement will be
reasonably determined by the Company. The Company reserves the absolute right to
reject any completed Subscription Agreement, in its sole and absolute
discretion. The Company also reserves the right to waive any irregularities in,
or conditions of, the submission of completed Subscription Agreements. The
Company shall be under no duty to give any notification of irregularities in
connection with any attempted subscription for Preferred Shares or incur any
liability for failure to give such notification. Until such irregularities have
been cured or waived, no subscription for Preferred Shares shall be deemed to
have been made. Any Subscription Agreement that is not properly completed and as
to which defects have not been cured or waived will be returned by the Company
to the Subscriber as soon as practicable.
10
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
The undersigned investor hereby certifies that he or she (i) has
received and relied solely upon information provided by the Company, (ii) agrees
to all the terms and conditions of this Subscription Agreement, (iii) meets the
suitability standards set forth in this Subscription Agreement and (iv) is a
resident of the state indicated below.
(a) The undersigned subscribes for _________ Preferred Shares.
(b) The total cost of the Preferred Shares subscribed for, at $500
per Preferred Share, is $________ (the "Purchase Price").
_____________________________
Name of Subscriber (Print) If other than Individual check one and indicate
capacity of signatory under the signature:
_____________________________ [_] Trust
Name of Joint Subscriber [_] Estate
(if any) (Print) [_] Uniform Gifts to Minors Act of State of____
[_] Attorney-in-fact
[_] Corporation
_____________________________ [_] Other______________________________________
Signature of Subscriber
If Joint Ownership, check one:
_____________________________
Signature of Joint Subscriber
(if any) [_] Joint Tenants with Right of Survivorship
[_] Tenants in Common
_____________________________ [_] Tenants by Entirety
Capacity of Signatory [_] Community Property
(if applicable)
_____________________________ Backup Withholding Statement:
Social Security or Please check this box only if the investor
Taxpayer Identification Numbe is subject to:
[_] backup withholding.
_____________________________
Residence Address Foreign Person:
Please check this box only if
the investor is a:
_____________________________
City State Zip Code [_] nonresident alien, foreign corporation,
foreign partnership, foreign trust or
foreign estate.
Telephone ( )__________________________
Telecopy No. ____________________________
The investor agrees to the terms of this Subscription Agreement and, as required
by the Regulations pursuant to the Internal Revenue Code, certifies under
penalty of perjury that (1) the Social Security Number or Taxpayer
Identification Number and address provided above is correct, (2) the investor is
not subject to backup withholding (unless the Backup Withholding Statement box
is checked) either because he has not been notified that he is subject to backup
withholding as a result of a failure to report all interest or dividends or
because the Internal Revenue Service has notified him that he is no longer
subject to backup withholding and (3) the investor (unless the Foreign Person
box above is checked) is not a nonresident alien, foreign partnership, foreign
trust or foreign estate.
11
THE SUBSCRIPTION FOR __________PREFERRED SHARES OF ONNY INVESTMENT
LIMITED BY THE ABOVE NAMED SUBSCRIBER(S) IS ACCEPTED AS OF _____________, 2005.
ONNY INVESTMENT LIMITED
By: _____________________________________
Title:___________________________________
