INTERNATIONAL STAR, INC. SUBSCRIPTION AND INDEMNIFICATION AND STOCK PURCHASE WARRANT AGREEMENT
EXHIBIT
10.23
INTERNATIONAL
STAR, INC.
SUBSCRIPTION
AND INDEMNIFICATION
2008
COMMON STOCK AND WARRANTS OFFERING
International
Star, Inc.
X.X. Xxx
0000
Xxxxxxxxxx,
Xxxxxxxxx 00000
RE: International
Star, Inc. 2008 Common Stock and Warrants Offering
Ladies
and Gentlemen:
1. Subscription. This
Subscription and Indemnification and Stock Purchase Warrant Agreement
(“Subscription Agreement”) is executed by the undersigned subscriber (the
“Subscriber”) who desires to purchase units (“Units”) consisting of shares of
common stock, par value $0.001 (“Common Stock”), of International Star, Inc., a
Nevada corporation (the “Company”), and warrants to purchase shares of Common
Stock, pursuant to the terms and conditions as stated herein (the
“Offering”).
The
Subscriber hereby subscribes to purchase 500,000 Units of shares of the
Company’s Common Stock (the “Shares”) and Common Stock purchase warrants (the
“Warrants”) at a price of $0.01 per Unit, for a total subscription price of Five
Thousand and no/100 Dollars ($10,000.00) (the “Total Subscription
Price”).
By
executing this Subscription Agreement, Subscriber agrees to pay the full amount
of the Total Subscription Price and receive the Shares and Warrants subscribed
for, subject to the following terms:
Payment
for the Total Subscription Price shall be made in cash upon the delivery of this
Subscription Agreement to the Company by the Subscriber delivering a check for
the Total Subscription Price, payable to the order of International Star, Inc.,
or by wire transfer to the account of the Company for the Total Subscription
Price.
Each Unit
shall consist of one Share of Common Stock and one Warrant issued pursuant to
the terms and conditions provided herein.
2. Acceptance of
Subscription. This subscription is made subject to acceptance
by the Company on the following terms and conditions, and Subscriber represents
and warrants to the Company that the Subscriber understands and agrees to such
terms and conditions:
(a)
The Offering is being made on a first-come, first-served basis for the purpose
of raising approximately $650,000 for general working capital of the
Company. The minimum investment that will be accepted by the Company
from any Subscriber is $2,000.00.
(b)
The Units offered by the Company will be subject to the Company’s right to
reject subscriptions in whole or part (whether or not the Subscriber’s check or
wired payment is deposited into the Company’s account), withdrawal,
cancellation, modification of the Offering without notice and the Company’s
receipt and acceptance of a validly completed and executed Subscription
Agreement.
(c)(1)
When the Company receives the Subscriber’s check for the Total Subscription
Price and executed Subscription Agreement, the Subscriber’s check will be
deposited into the Company’s account. Only when the check is paid or
the funds transfer is completed and the subscription is accepted by the Company
will the Company instruct its transfer agent to issue to the Subscriber a
certificate representing the number of Shares of Common Stock subscribed and a
certificate representing the number of Warrants subscribed.
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(2)
If management of the Company decides to terminate the Offering, which it may do
without notice to Subscriber, or if the subscription is rejected, Subscriber
will be refunded all funds forwarded by him or her together with any interest
thereon. Unless earlier terminated or extended by the Company, the
Offering will terminate at 5:00 Central Time on Tuesday, September 30,
2008.
(d)
If you are an existing shareholder of the Company beneficially owning, directly
or indirectly, 10% or more of the Company’s outstanding common stock, the
Company may reduce your subscription as necessary to comply with applicable laws
to an amount equal to the number of Units required to maintain your current pro
rata percentage of beneficial ownership in the Company. The Company
will refund payment for any Units so reduced, with interest
thereon.
(e)
This Offering is being made pursuant to an exemption from registration under
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”),
and Rule 506 of Regulation D promulgated thereunder, and pursuant to exemptions
or exceptions from registration under the securities laws of Louisiana and any
other state(s) where the offeree(s) principally reside(s).
(f)
This Offering is being made to the offeree(s) based solely on each offeree’s
status as an accredited investor, as that term is defined in Rule 501(a) of
Regulation D.
(g)
The certificate(s) issued to Subscriber representing the Shares, the
certificate(s) issued to Subscriber representing the Warrants, and the
certificate(s) to be issued to Subscriber representing shares of Common Stock
acquired upon exercise of the Warrants or any portion thereof, shall bear the
following legend restricting transfer thereof and containing substantially the
following language.
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold or otherwise transferred
unless compliance with the registration provisions of such act has been made or
unless the availability of an exemption from such registration provisions has
been established, or unless sold pursuant to Rule 144 under the Securities Act
of 1933.”
and;
(h)
The Company will place a notation in its stock records and instruct the
Company’s transfer agent to restrict the resale, pledge, hypothecation or other
transfer thereof in accordance with the provisions of the legend set forth in
Section 2(g) hereof.
3. Terms and Conditions of
Warrants.
(a)
Shares Issuable Per Warrant. Each Warrant shall entitle the
Subscriber to purchase one-half (1/2) share of Common Stock under the terms and
conditions of this Section 3.
(b)
Exercise Price. The exercise price per share of the shares of Common
Stock issuable upon exercise of the Warrants (the “Warrant Shares”) shall be an
amount equal to 50% of the closing price of the Common Stock for the trading day
immediately preceding the date of the notice of exercise of the Warrant (the
“Exercise Price”).
(c)
Exercisability of Warrant; Termination of Warrant. Subject to the
provisions of this paragraph (c), each Warrant shall be exercisable by the
Subscriber for a period of three (3) years commencing on the date of issuance
and expiring on the third anniversary of the date of issuance, as provided on
the warrant certificate evidencing the Warrants (the “Expiration Date”), subject
to the following provisions:
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(1) All issued but unexercised
Warrants shall continue to be fully exercisable in accordance with the
provisions herein, subject to the Company’s right to cancel provided in
subparagraph (2), if:
(i) there occurs any corporate
transaction (which shall include a series of corporate transactions occurring
within 60 days or occurring pursuant to a plan), that has the result that
shareholders of the Company immediately before such transaction cease to own at
least a majority of the voting stock of the Company in a (a) reorganization, (b)
consolidation, (c) merger, (d) liquidation or (e) a similar corporate
transaction;
(ii) the shareholders of the
Company approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned); or
(iii) the shareholders of the
Company approve a plan for the sale, lease, exchange or other disposition of all
or substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
(2) Right to
Cancel. The Company reserves the right to cancel the Warrants prior
to the Expiration Date, after a period of one year has elapsed from the date of
issuance of the Warrants and upon 15 days written notice to the Warrant holders,
if the closing price of the Company’s Common Stock is an amount equal to or
exceeding $0.20 per share for a period of 20 consecutive trading
days.
(d)
Non-Transferability. The Warrants shall not be given, granted, sold,
exchanged, transferred, pledged, encumbered, assigned or otherwise disposed of
by the Subscriber, other than by will or the laws of descent and distribution
upon the death of Subscriber. The Warrants shall not be exercisable
by any person other than Subscriber, except that in the event of Subscriber's
death, the exercisable but unexercised portion of the Warrants may be exercised
by the estate of the Subscriber or by the person who acquired the right to
exercise the Warrants in accordance with this paragraph, subject to such
transferree’s execution of a Subscription and Indemnification and Stock Purchase
Warrant Agreement with the Company.
(e)
Method of Exercise. Subscriber shall notify the Company by written
notice, in the form of the Notice of Exercise attached hereto (Attachment A),
delivered to the Company’s principal office,
attention: Secretary.
(1) Payment for the Warrant
Shares must accompany the Notice of Exercise and shall be made by Subscriber's
check payable to International Star, Inc. or by wire transfer in full payment of
the Exercise Price times the number of Warrant Shares purchased (the “Total
Exercise Price”).
(2) As soon as practicable after
the receipt of the Notice of Exercise and accompanying payment of the Total
Exercise Price and Subscriber’s check or wire transfer has been paid, the
Company shall instruct its transfer agent to issue to Subscriber a certificate
or certificates evidencing the Warrant Shares purchased by Subscriber
hereunder.
(f)
Restriction on Exercise. As a condition to the exercise of any
Warrant, the Company may require the person exercising the Warrant to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
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(g)
No Fractional Shares. No fractional shares of Common Stock will be
issued upon exercise of the Warrants, but the Company shall pay to Subscriber
the cash value of any fraction of a Warrant Share to which Subscriber is
entitled upon the exercise of one or more Warrants.
(h)
Adjustment of Warrant Shares. If at any time prior to the expiration
or exercise in full of the Warrants, there shall be any increase or decrease in
the number of issued and outstanding shares of the Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split, combination or exchange of the Common Stock, then the number of
Warrant Shares subject to the Warrants shall be proportionately adjusted for any
such change in the stock structure of the Company.
Except as
otherwise expressly provided herein, the issuance by the Company of shares of
its capital stock of any class, or securities convertible into shares of capital
stock of any class, either in connection with a direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversions of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or exercise price of the Warrant Shares that remain unexercised
under the Warrants.
Without
limiting the generality of the foregoing, the existence of unexercised Warrant
Shares under the Warrants shall not affect in any manner the right or power of
the Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Warrant Shares issuable upon exercise of the
Warrant; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
(i)
No Rights as Stockholder. The Subscriber shall have no rights as a
stockholder of the Company with respect to any Warrant Shares as to which
Warrants have not been exercised and payment of the Total Exercise Price has not
been made therefor as herein provided.
4. Representations, Warranties, and
Acknowledgments by the Subscriber. The Subscriber further
represents, warrants, and acknowledges to the Company that the
Subscriber:
(a)
has been informed of and understands the terms of the Offering and the terms and
conditions of the Warrants; and
(b)
understands that he or she is being offered the Units solely because of
his or her status as an accredited investor; and
(c)
is aware that all Company information has been filed with the Securities and
Exchange Commission on Forms 10-KSB and 10-QSB (or 10-Q) and such current and
other reports as required by the Securities Exchange Act of 1934, as amend, and
represents that Subscriber has reviewed the Company’s financial statements
contained in the Company’s most recent Form 10-QSB (or 10-Q) and Form 10-KSB, as
available on the SEC’s XXXXX filing system, and has relied on the information
contained in such filings in connection with his or her investment decision with
respect to the Shares; and
(d)
has had access to information concerning the Company, including, without
limitation, the opportunity to ask questions of and receive answers from the
Company concerning any and all aspects of the Offering and any other information
about the Company that Subscriber requested to review; and
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(e)
acknowledges that he or she is knowledgeable about the Company, its business,
its financial condition and its competitors and has had the opportunity to
obtain such additional information about the Company as Subscriber deems
necessary in order to make an informed investment decision, including but not
limited to: (i) documents, agreements, financial statements, and information
regarding the Company, its results of operation and plans and prospects for the
future, (ii) the corporate structure of the Company and its capitalization
including information about its board of directors and officers, the rights
which a shareholder of the Company has under its Articles of Incorporation and
Bylaws; (iii) the dividend policy of the Company; (iv) the uses of the proceeds
from the Offering; and (v) any other information about the Company that
Subscriber requested to review; and
(f)
understands that proceeds of the Offering will be used for general working
capital of the Company; and
(g)
understands that the sale of the Shares and Warrants, and the Warrant Shares
issuable pursuant to the Warrants, is not being registered under federal and
state securities laws, and that the Shares and Warrants, and the Warrant Shares
issuable pursuant to the Warrants, are being offered and sold under the
exemptions from registration provided in Section 4(2) of the Securities Act, and
Rule 506 of Regulation D promulgated thereunder, and pursuant to exemptions from
registration under the securities laws of the state(s) in which the offeree(s)
reside(s), and that THIS TRANSACTION HAS NOT BEEN REVIEWED OR PASSED UPON BY ANY
FEDERAL OR STATE AGENCY; and
(h)
has the required degree of knowledge and experience in financial and business
matters, including making investment decisions of this type, that enables
Subscriber to utilize the information made available to Subscriber in connection
with the offer of the Units, to evaluate the risks of the prospective investment
and to make an informed investment decision; and
(i)
meets one of the criteria for an accredited investor in subparagraph (1) or (2)
below (indicated by
the initials
of Subscriber
in the appropriate blank(s)):
(1)
if Subscriber is a
natural person:
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_HT &
PT_
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(i)
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such
Subscriber has net worth as an individual or joint net worth with
Subscriber’s spouse, as of the date hereof, which exceeds $1,000,000;
or
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_________
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(ii)
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such
Subscriber had individual income in excess of $200,000 in each of the two
most recent years or joint income with Subscriber’s spouse in excess of
$300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
or
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_________
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(iii)
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such
Subscriber is a director or executive officer of the Company;
or
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(2) if
Subscriber is not a
natural person:
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_________
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(i)
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such
Subscriber is a bank, insurance company, investment company (as defined in
the Investment Company Act of 1940), business development company or small
business investment company; or
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_________
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(ii)
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such
Subscriber is an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974 administered by a
bank, savings and loan association, insurance company or registered
investment advisor; or
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_________
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(iii)
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such
Subscriber is an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974 with total assets in
excess of $5,000,000 with investment decisions made solely by persons who
are accredited investors; or
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_________
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(iv)
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such
Subscriber is a self-directed retirement plan with investment decisions
made solely by persons who are accredited investors;
or
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_________
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(v)
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such
Subscriber is a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities
Act;
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_________
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(vi)
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such
Subscriber is a broker or dealer registered pursuant to the Securities
Exchange Act of 1934;
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_________
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(vii)
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such
Subscriber is a plan with assets in excess of $5,000,000 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;
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_________
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(viii)
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such
Subscriber is a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
or
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_________
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(ix)
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such
Subscriber is a non-profit organization described in Internal Revenue Code
Section 501(c)(3) with total assets in excess of $5,000,000;
or
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_________
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(x)
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such
Subscriber is a corporation, partnership or similar business trust, not
formed for the specific purpose of acquiring the securities offered, with
total assets in excess of $5,000,000;
or
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_________
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(xi)
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such
Subscriber is a 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 Securities
and Exchange Commission
Rule 506(b)(2)(ii);
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_________
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(xii)
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such
Subscriber is an entity in which all of the equity owners are accredited
investors as otherwise defined in subparagraphs (1) and (2) of
this paragraph (i);
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and
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(j)
as an accredited investor, is aware that no offering memorandum or other
disclosure document is being provided to the Subscriber based upon his or her
representations set forth herein; and
(k)
understands that dividends are paid if and when authorized by the board of
directors of the Company and are payable only if and to the extent earnings are
available, and further understands that there can be no assurance that the board
of directors of the Company will authorize the issuance of dividends;
and
(l)
has no reason to anticipate any change in personal circumstances, financial or
otherwise, which may cause or require any sale or distribution of the Shares or
the Warrant Shares; and
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(m)
is familiar with the nature of and risks attending an investment of this type,
and thus has determined that the purchase of the Units and the purchase of any
Warrant Shares pursuant to the Warrants are consistent with Subscriber’s
investment objectives and income prospects; and
(n)
is acquiring the Shares and the Warrants for purposes of long-term investment,
for the personal account of Subscriber, and with no present intention of
reselling, distributing or otherwise transferring the Shares or the Warrant
Shares to be acquired by Subscriber upon exercise of the Warrants, or any
portion of the Shares or the Warrant Shares, and Subscriber has no contract,
undertaking or oral or written arrangement with any person or entity to sell or
transfer all or any portion of the Shares or the Warrant Shares to that person
or entity, or to have that person or entity sell for him all or any portion of
the Shares or the Warrant Shares, or to afford or allow any participation in the
Shares or the Warrant Shares by any other person or entity; and
(o)
is not purchasing the Units in reliance on any verbal representation or warranty
of the Company or its directors, officers, employees, agents, independent
contractors or any other person, and acknowledges that all documents, records
and books pertaining to this subscription which Subscriber has requested have
been made available to such Subscriber, and/or his or her attorney, accountant
or other representative; and
(p)
understands that the Warrants are not transferable, except as provided in
Section 3 herein, and further understands that the Subscriber’s ability to
transfer the Shares and the Warrant Shares will be restricted and that transfers
of the Shares and the Warrant Shares may not be made unless the transfer is not
in violation of the Securities Act and applicable state securities laws
(including investment suitability standards), and that the Company reserves its
right to withhold consent to a transfer if, among other things, the transferee
does not meet and does not represent that he or she meets the financial
suitability standards required of an initial subscriber; and
(q)
understands that, because the Warrants may not be transferred and because
transfer of the Shares and the Warrant Shares is restricted, Subscriber may not
readily liquidate this investment; and further understands that the Units should
not be purchased unless the Subscriber has liquid assets sufficient to assure
that such purchase will cause no undue financial difficulties and the Subscriber
can otherwise provide for current needs and possible personal contingencies; and
further affirms that Subscriber has sufficient liquid assets so that the
purchase of the Units will not interfere with Subscriber’s personal needs or
contingencies; and
(r)
understands the fundamental aspects of and risks involved in an investment in
the Company, including (1) the nature of the investment, (2) the financial
hazards involved, including the risk of losing the entire investment, (3) the
lack of liquidity and the restrictions on transferability of the Shares, and (4)
the business of the Company; and
(s)
has subscribed for the number of Units as set forth in Section 1 of this
Subscription Agreement and has tendered the Total Subscription Price; and
acknowledges that such tender is irrevocable and binding until either accepted
or rejected by the Company; that the Company will accept validly executed and
completed subscriptions subject to prior sale; that the Company may reject any
subscription, in whole or in part, and for any reason, without liability to it;
and, further, that the Company will reject any subscription that is not
accompanied by a fully executed and completed Subscription
Agreement; and
(t)
represents that no person other than the Subscriber will have a direct or
indirect interest in the Shares and Warrants subscribed for hereby;
and
(u)
represents that the address set forth on the signature page of this Subscription
Agreement is the Subscriber’s true and correct residence address, and the
Subscriber has no present intention of becoming a resident of any other state or
jurisdiction; and
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(v) agrees
that the Company may present this document to whatever persons it deems
appropriate if the Company is called upon to establish the availability of an
exemption to the registration requirements of the Securities Act and applicable
state securities laws for this Offering and sale of the Units; and
(w) affirms
that the representations made herein by the Subscriber are true, correct and
complete as of the date hereof, and, if there should be any material change in
these representations prior to the issuance of the Shares and Warrants, the
Subscriber will immediately inform the Company and furnish such revised or
corrected information to the Company.
5. Indemnification. The
Subscriber does hereby agree to indemnify and hold harmless the Company and its
directors, officers, employees, agents, attorneys and independent contractors
from and against any and all liabilities, damages, losses, costs, claims and
expenses (including attorneys’ fees) arising under or resulting from
Subscriber’s breach of any representation or warranty made herein or from any
other misrepresentation made by Subscriber in connection with the Offering,
Subscriber’s subscription for the Units, and Subscriber’s exercise of the
Warrants and acquisition of the Warrant Shares.
6. Miscellaneous.
(a) This
Subscription Agreement, or any interest herein, shall not be transferable or
assignable by Subscriber.
(b) The
Company reserves the right in its sole discretion to determine the validity of
all subscriptions for Units and to reject subscriptions that it deems
invalid.
(c) All
notices or other communications hereunder shall be in writing and shall be hand
delivered or mailed, postage prepaid, to the undersigned at the address set
forth below and to the Company at the address set forth above.
(e) This
Subscription Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Nevada.
(f) Any
individual executing this Subscription Agreement for himself or herself
represents and warrants to the Company that he or she is at least eighteen (18)
years of age. Any corporate Subscriber or Subscriber acting in a
fiduciary capacity hereof represents and warrants to the Company that its
actions in executing, delivering and carrying out the transactions contemplated
by this Agreement have been duly and validly authorized.
(g) This
Subscription Agreement shall inure to the benefit of and be binding upon the
parties hereto and their heirs, successors, personal representatives, trustees
and assigns. If the Subscriber is more than one person or entity, the
obligations of the undersigned shall be joint and several, and the
representation and the indemnification obligations herein contained shall be
deemed to be made by and binding upon each such person and his or her heirs,
successors, personal representatives, trustees and assigns.
IN WITNESS WHEREOF, this
Subscription Agreement has been executed by the Subscriber as of the date
indicated next to such authorized signature.
(Signature
on page following.)
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INTERNATIONAL
STAR, INC.
Subscription Agreement Signature
Page
| /s/ Xxxxxx Xxxx | ||
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/s/ Xxxxx
Xxxx
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| Authorized Signature of Subscriber | Date: SEPT 29, 2008 |
PLEASE
PRINT: Xxxxxx and Xxxxx
Xxxx
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Exact
Legal Name of Subscriber:
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Xxxxxx and Xxxxx Xxxx |
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Title
(if signing as an officer or in a representative capacity)
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Physical Street Address of
Residence (if an Individual)
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000
Xxxx Xxxxx Xxxxx
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or
Principal Place of Business
(if an Entity)
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Line
1 of Street Address (not a P. O. Box)
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Line
2 of Address
Xxxxxxxxxx
Xxxxx
XX
00000
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City State Zip
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Mailing
Address for Notice
(if
different from above)
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Line
1 of Street Address or P. O. Box
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Line
2 of Address
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City State Zip
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Social
Security Number
or
Tax Identification Number
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Xxxxxx
Xxxx 000 00 0000
Xxxxx Xxxx 000 00
0000
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ACCEPTED
by the Company this
30th
day of September ,
2008.
INTERNATIONAL
STAR, INC.
| By: | /s/ Xxxxxxxx X. Wine | |
| Name: | Xxxxxxxx X. Wine | |
| Title: | Sec/Treas/CFO |
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