SUBSCRIPTION AND INVESTMENT AGREEMENT
To: Advanced Engine Technologies, Inc.
00000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
From: Xxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxx, Trustee
R.E. & X. Xxxxxxxx Living Trust DTD 1/17/83 ("Xxxxxxxx Trust")
Gentlemen:
The undersigned, Xxxxxxxx Trust having previously received and read the
offering Memorandum dated May 22, 1997, the valuation opinion letter from
Xxxxxxxxx Xxxxxx, Inc., Investment Banker and Brokers, dated August 17, 2000,
having previously had numerous direct and indirect contacts and communications
with directors and officers of Advanced Engine Technologies, Inc. (the
"Company"), and having previously discussed on-going operations and proposed
operations of the Company, hereby makes an irrevocable offer to purchase
10,000,000 (Ten Million) shares or securities of the company ("Shares" or
"Securities"). Tendered herewith from the Xxxxxxxx Trust is the amount of
$10,000,000. (Ten Million dollars) (hereinafter "Funds"), in return for which
the Company shall forthwith issue 10,000,000 (Ten Million) shares of common
stock of the Company to Xxxxxxxx Trust.
Please accept this document as a fully executed Subscription Agreement,
in connection with which Xxxxxxxx Trust hereby represents and agrees as follows:
1. The funds tendered herewith are irrevocable. Should this
subscription be rejected by the Company, the Company shall promptly and fully
return the subscription price tendered, without interest or deduction and this
Subscription Agreement shall be rendered null and void, and of no further force
or effect.
2. This subscription is made subject to the following terms and
conditions:
(a) The Company has the right to reject this subscription in whole or
in part;
(b) No obligation exists on the part of the Company to accept
subscriptions in any particular order;
(c) The certificate evidencing the Shares subscribed to herein shall be
issued only in the name of Xxxxxxxx Trust, and only to Xxxxxxxx Trust;
(d) The offering will be terminated on August 25, 2000 subject to an
extension; or at any time by the Company, prior to the final acceptance of the
subscription.
3. In making the decision to subscribe to shares of the Company, the
Xxxxxxxx Trust has relied upon the documents referred in this Subscription
Agreement as well as its own familiarity with the Company, its operations and
its management. Further, Xxxxxxxx Trust's reliance has been placed upon its own
independent investigation and opinions.
4. The Securities are being offered and sold under an exemption from
registration provided by the Securities Act of 1993 (the "1993 Act,") and the
rules and regulations promulgated thereunder, and certain exemptions from
registration provided by state securities laws.
5. This transaction has not been reviewed by, passed on or submitted to
the United States Securities and Exchange Commission or to any state agency;
accordingly, the Xxxxxxxx Trust makes the following additional representations
and warranties:
(a) Xxxxxxxx Trust is a bona fide resident or domiciliary of the State
of California, and has its principal residence and domicile in such state; the
trustee of the Xxxxxxxx Trust (to wit: Xxxxxx Xxxxxxxx) is a resident of the
State of California and a United States citizen of at least twenty one years of
age.
(b) Xxxxxxxx Trust understands and has fully considered, for purposes
of this investment, all the risks of investing in the Company, which has to date
developed only prototype engines and has no other history of operations.
(c) Xxxxxxxx Trust understands the Company has a limited or no
operating history or profits and the Securities are speculative investments
which involve a high degree or risk of loss by the subscriber; therefore, this
investment is more suitable for one who is sufficiently wealthy to afford a loss
of his or her entire investment.
(d) Xxxxxxxx Trust is able to afford this investment and understands
that it may lose the entire investment. Xxxxxxxx Trust can bear the economic
consequences thereof.
(e) Xxxxxxxx Trust understands that substantial restrictions exist on
the transferability of the Securities, for which there may be no market, and,
accordingly, Xxxxxxxx Trust understands that it will probably not be possible to
liquidate its investment in the Securities in the case of emergency.
(f) The Company is relying on the truth and accuracy of the
representations, declarations and warranties made herein in offering the
Securities for sale to Xxxxxxxx Trust, and is further relying upon applicable
federal and state exemptions.
(g) The Securities subscribed to herein are being acquired for Xxxxxxxx
Trust's account, for investment only, and are not being purchased with a view
toward resale, distribution, subdivision or fractionalization. Xxxxxxxx Trust
has no contract, understanding, undertaking, agreement or arrangement, formal or
informal, with any person or persons to sell, transfer or pledge the Securities,
and Xxxxxxxx Trust has no present plan to enter into any such contract or
agreement. The legal consequences of these representations is that Xxxxxxxx
Trust must bear the economic risks of this investment for an indefinite period
of time, since the underlying Securities have not been registered in accordance
with the 1933 Act or any other securities laws, and therefore cannot be sold
unless they are subsequently registered (which the Company is not obligated to
do), or if an exemption can be relied upon.
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(h) The undersigned agrees that a legend reading substantially as
follows may be placed on any or every certificate representing all or any
portion of the Securities of the Company to be issued to Xxxxxxxx Trust pursuant
to this Agreement:
THE SHARES RESPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE ACT), AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
The undersigned further agrees that the Company will place on its book
and the books of the transfer agent such "Stop Transfer" notice or order as may
be necessary for the purpose of implementing the terms, covenants, conditions,
and provisions of this investment letter.
6. Xxxxxxxx Trust makes the within representations, warranties and
undertakings with the intent that they may be relied upon in determining
Xxxxxxxx Trust's suitability to purchase the Securities, and such
representations and warranties shall survive the within subscription.
7. Xxxxxxxx Trust agrees to indemnify and save harmless the Company
from any claims, liabilities, damages, expenses, losses or actions directly or
indirectly arising out of or in connection with the representations and
warranties, and agreements contained herein.
8. Xxxxxxxx Trust is not entitled to transfer or assign this
Subscription Agreement, or any interest herein, and the issuance of Securities
pursuant hereto shall be made only in accordance with the applicable laws.
9. Xxxxxxxx Trust is not entitled to cancel, terminate or revoke this
Subscription Agreement or any agreements contained herein, and the provisions of
this Subscription Agreement shall survive (i) purchase and issuance of the
Subscription subscribed to herein; and (ii) the death or disability of the
current trustee of the Xxxxxxxx Trust. However, if the Company rejects this
Subscription, this Subscription Agreement shall automatically be canceled,
terminated and revoked.
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10. Xxxxxxxx Trust has read Appendix A hereto, defining an "Accredited
Investor" as set forth in Rule 501 of Regulation D of the Securities Act of 1933
and certifies that Xxxxxxxx Trust qualifies as an "Accredited Investor" in that
its net worth is greater than ten (10) time the proposed investment contemplated
by this Subscription Agreement.
11. This agreement shall be governed by and construed in accordance
with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this 21st day of August 2000.
Xxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxx,
Trustee
R.E.& X. Xxxxxxxx Living Trust DTD 1/17/83
("Xxxxxxxx Trust")
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
Trustee of the Xxxxxxxx Trust
----------------------------------
Taxpayer Identification No.
or Social Security Number.
Subject to the approval of the Company, the foregoing Subscription is
hereby accepted on behalf of the Company, subject to the terms and conditions
hereof, as of the 24th day of August, 2000.
Advanced Engine Technologies, Inc.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
President
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APPENDIX A
ACCREDITED INVESTOR: "Accredited investor" shall mean any person who
comes within any of the following categories, or who the issuer reasonably
believes comes within any of the following categories, at the time of the sale
of the securities to that person:
(1) Any bank as defined in Section 3(a) (2) of the Securities Act, or
of any savings and loan association or other institution as defined in Section
3(a) (5) (A) of the Act any broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934; any insurance company as defined in
Section 2(13) of the Act; any investment company registered under the Investment
Company Act of 1940 or a business development company as defined in Section 2
(a) (48) of that Act; any Small Business Investment Company licensed by the U.S.
Small Business Administration; any established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; any employee benefit plan within the meaning of
the Employee Retirement Security Act of 1974 if the investment decisions is made
by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment decisions made solely by
persons that are accredited investors;
(2) Any private business development company as defined in Section
202(a) (22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501 (c) (3) of the internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000.000;
(4) Any director, executive officer, or general partner of the issuer
of the securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the some income level in the current year;
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(7) Any trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b) (2) (ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
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