EXHIBIT 10.39
SUBSCRIPTION AGREEMENT
BY XXXXXXXXX.XXX, INC.
1. SUBSCRIPTION. The undersigned, Xxxx Xxxxxxxx and Xxx X Xxxxx (the
"Subscriber") hereby irrevocably subscribes for ONE HUNDRED SIXTY THREE THOUSAND
TWO HUNDRED SEVENTEEN and 00/100 (163,217) shares of Common Stock ("Sh-ares") of
XxxxxXxxx.xxx, Inc., a California cor-pora-tion (the "Com-pany"), at a price per
Share of $1.5317 and for a total price of TWO HUNDRED FITY THOUSAND DOLLARS and
00/100 ($250,000.00). This sub-scri-p-tion may be rejected in whole or in part
by the Company.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS BY THE SUBSCRIBER. The
Subscriber represents, warrants and agrees that:
(a) The Subscriber has received and carefully reviewed from the Company
all material documents necessary to make an informed investment decision
including but not limited to the Company's Form 10-SB and understands the risks
associated with this investment;
(b) All of the information provided by the Sub-xxxxxxx in the Investor
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Questionnaire for Individual Investors, attached hereto as Exhibit A, given to
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the Company or its agents prior to the date hereof regarding the Subscriber's
ability to bear the risks of this investment and the Subscriber's sophistication
and experience as an investor, is true and correct as of the date this Agreement
is tendered to the Company. The Subscriber shall promptly notify the Company in
writing if any change in such information occurs after such tender and prior to
acceptance hereof by the Company;
(c) Subscriber is advised that no federal or state agency has made any
recommendation or endorsement of the Shares;
(d) The Subscriber has a preexisting personal or business relationship
with the Company or with any of its offi-cers, directors, or controlling
persons, or by reason of the Subscriber's business or financial experience (or
the business or financial experience of his/her authorized investment
representative who is unaffiliated with and who is not compensated by the
Com-pany or any affiliate or selling agent of the Company, directly or
indirectly) has the capacity to protect his/her own interests in connection with
this investment;
(e) The Subscriber has not seen or received any advertisement or
general solicitation with respect to the Shares;
(f) The Subscriber recognizes that the Company has limited net assets
and a limited operating history, and that any investment in the Shares involves
a high degree of risk;
(g) The Subscriber understands that there are substantial restrictions
on sale, assignment, transfer or any other disposition of the Shares, and that
the Subscriber may not be able to liquidate the Subscriber's investment;
(h) The Subscriber is a resident of the state of Texas and, if an
individual, is twenty-one (21) years of age or over. For purposes of this
section, the Subscrib-er is deemed to reside in the state where he/she has
his/her principal resi-dence at the time of both the offer and the sale of the
Shares;
(i) Either the Subscriber, or the Subscriber's authorized investment
representative, if any, has had the oppor-tunity for direct negotiations with
the Company with regard to this sub-scription and to ask questions of, and
receive answers from the representatives of the Company concerning the terms and
conditions of the offering and the Company, and has received all information
requested by the Sub-xxxxxxx regarding the offering, the Company and its
existing and planned opera-tions and manage-ment;
(j) The Shares are being purchased by the Sub-xxxxxxx and not by any
other person, with the Subscriber's own funds and not with the funds of any
other person and for the Subscriber's own account, and not as a nominee, agent
or other-wise for the account of any other person (except for its princi-pal, in
the case of an au-thorized investment representative). On acceptance of this
Agre-ement, no other person will have any interest, beneficial or otherwise, in
the Shares. The Subscriber is not obligated to transfer all or any portion of
the Shares to any other person nor does the Subscriber have any agreement or
understanding to do so. The Subscriber is purchas-ing the Shares for investment
for an indefinite period and not with a view to the sale or distribution of any
part or all there-of by public or private sale or other disposition. The
Subscrib-er has no inten-tion of selling, grant-ing any participa-tion in, or
otherwise distributing or disposing of the Shares. The Subscriber does not
intend to subdi-vide the Subscriber's purchase of the Shares with any person;
(k) The Subscriber has been advised that the Shares issued in
connec-tion with this offering have not been regis-tered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act);
(l) Subscriber acknowledges that, either directly or with the
assistance of his/her Purchaser Representative, if any, Subscriber has such
knowledge and experience in financial and business matters to make an informed
investment decision based upon the information furnished to Subscriber and such
addi-tional information as Subscriber may have requested and received from the
Company and the independent inquiries and investigations undertaken by
Subscriber;
(m) The Company reserves the right to reject this subscription in whole
or in part.
3. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants that it has full legal and equitable title to the Shares, and has
not in whole or in part assigned, pledged, sold, conveyed or other-wise
transferred to any third party any rights in such Shares.
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4. PAYMENT OF SUBSCRIPTION. The amount of the Sub-xxxxxxx'x subscription is
set forth above and the undersigned encloses payment of such amount herewith in
United States dollars by cash, check or money order payable to the Company. The
Sub-xxxxxxx recognizes that if the Subscriber's sub-scription is re-jected in
whole or in part, the funds delivered to the Com-pany for the rejected portion
of the subscription will be returned to the Subscriber by the Company as soon as
practica-ble without interest.
5. APPLICATION TO FIDUCIARIES. If the Subscriber is purchasing the Shares
in a fiduciary capacity, the representa-tions, warranties and agreements of the
Subscriber herein shall be deemed to have been made on behalf of the person(s)
for whom the Subscriber is so purchasing, except that such person(s) need not be
over twenty-one (21) years of age.
6. CHANGES. The Subscriber agrees to notify the Company immediately if any
of the representations and warranties made by the Subscriber herein become
untrue.
7. REGISTRATION ON COMPANY'S RECORDS. The Sub-xxxxxxx'x Shares will be
owned and should be shown on the Com-pany's records as set forth on the
signature line below.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties hereto with re-spect to the mat-ters set forth herein, and supersedes
all prior agreements, nego-tiations, or discussions with respect to such
matters. No prior or concurrent representations or promises of any party hereto
or any of their respective agents or representa-tives shall consti-tute a part
of this Agreement, unless expressly so stated herein. This Agreement may not be
altered, modified, amended, changed, rescinded, or discharged, in whole or in
part, except by a writ-ing executed by the parties.
9. COVENANTS AND CONDITIONS. Should any covenant or other provision of this
Agreement be held by a court of competent jurisdiction to be invalid, illegal,
or unenforceable by reason of a rule of law or public policy, all other
conditions and pro-visions of this Agreement shall nevertheless remain in full
force and effect. No covenant or provision hereof shall be deemed dependent
upon any other covenant or provision unless so expressly stated herein.
10. CALIFORNIA LAW TO GOVERN. This Agreement shall be deemed entered into
in the State of California, and shall be governed and construed in accordance
with the internal laws of the State of California applicable to contracts made
and to be performed in the State of California.
11. NOTICES. All notices and demands of every kind shall be personally
delivered or sent by first class mail to the parties at their addresses stated
below. Any such notice or demand shall be effective and deemed received
immediately upon personal service or three (3) days after deposit in the United
States mail, as the case may be. Any party hereto may re-desig-nate an address
for notices or demands in writing, delivered or mailed in accordance with the
terms hereof.
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12. SECTION HEADINGS. The section headings in this Agreement are for
convenience of reference only, and shall not in any way limit or amplify the
terms and provisions hereof, or enter into the interpretation of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument, and, in making proof
hereof, it shall not be necessary to produce or account for more than one such
counter-part.
14. INTERPRETATION. As used in this Agreement, the masculine, feminine or
neuter gender, and the singular or plural number, shall each be deemed to
include the others whenever the context so indicates.
15. MISCELLANEOUS. This Agreement shall inure to the benefit of and be
binding upon the heir and personal representa-tives of the Subscriber and the
successors and assigns of the Company, subject to the restrictions upon
assignment set forth herein. Time is agreed to be of the essence.
IN WITNESS WHEREOF, the Subscriber has duly executed this Agreement as of
the ___ day of ______________, 1999, and rendered this Agreement to the Company
this day of, 1999.
/s/ Xxxx Xxxxxxxx
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/s/ Xxx X. Xxxxx
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Authorized Signature of Subscriber
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/_/ Individual Ownership ________________________________
Subscriber's Social Security
or Federal Tax Identification
Number(s)
/_/ Joint Tenants with
Right of Survivorship ________________________________
Subscriber's Home Telephone
Number and Area Code
/_/ Tenants in Common
(both parties must
sign)
/_/ Community Property
(both signatures
required)
/_/ General Partnership
(Managing Partner must
sign; if no Managing
Partner, all partners
must sign)
/_/ Corporation
(authorized officer
must sign)
/_/ Trust
(Authorized trustee(s) must sign)
Cash, check or money order enclosed: $______________
ACCEPTED: PHOTOLOFT, INC.:
Dated:_____________, 1999 By: /s/ Xxxx Xxxxxxxx
Address for Notices: Its: Xxxx Xxxxxxxx, President
____________________________
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