SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT, (the "Agreement") made this ____ day of
_________ 2000, by and between XXXx.xxx, Inc. (the "Company"), a Florida
corporation and ___________________________________ (the "Subscriber").
WHEREAS, Subscriber acknowledges receipt of the business plan dated
February, 2000 (the "Business Plan") describing the growth and development plans
of the Company provided in connection with this Agreement;
WHEREAS, Subscriber acknowledges receipt of the term sheet dated February,
2000 (the "Term Sheet") describing the terms and conditions of the purchase of
the Securities being subscribed for hereby;
WHEREAS, Subscriber understands that the Business Plan is for
informational purposes only, and while believed to be accurate, the Company can
not guarantee that the information contained therein will not be subject to
change;
WHEREAS, Subscriber desires to enter into this Agreement with the Company,
in order to set forth the terms under which the Subscriber agrees to subscribe
for the Securities;
NOW THEREFORE, in consideration of the mutual covenants, conditions,
promises and other good and valuable consideration set forth herein, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Subscription. The Subscriber, intending to be legally bound, hereby
irrevocably subscribes for and agrees to purchase ______________ (________)
Units ("Units") at one dollar ($1.00) per Unit, each Unit being comprised of one
share of XXXx.xxx, Inc. Rule 144 restricted common stock and one share of
IT*XxxxxxXXX.Xxx, Inc. Rule 144 K restricted common stock as set forth in the
Term Sheet, which Term Sheet is attached hereto and incorporated in its entirety
into this Agreement. The Common Stock comprising each Unit may be referred to
herein as the "Securities."
2. Acceptance of Subscription. The execution and delivery of this
Subscription Agreement will not constitute an agreement between the undersigned
and the Company until this subscription is accepted by the Company. The
undersigned acknowledges that the Company may accept or reject, in whole or in
part, any tendered subscription for any reason, including, without limitation,
any subscription the acceptance of which might in the opinion of counsel for the
Company, require the registration of the Securities under any applicable federal
or state securities laws. If the Company rejects this subscription in whole or
in part, this Subscription Agreement shall become null and void as to said
rejected portion and all sums paid to the Company by the Subscriber shall be
returned, and all rights and obligations hereunder shall terminate.
3. Investment Representation. The Subscriber is acquiring the Securities
for the Subscriber's own account for investment only and not with a view to
resale or distribution of any part thereof. The Subscriber is aware that there
currently is a limited market for the Common Stock (and that it is not
anticipated that such a market will develop), and that the Subscriber may not be
able to sell or dispose of the Securities. The Subscriber understands that the
restricted Securities have not been registered or qualified for sale under the
Securities Act of 1933, as amended (the Act), or any state securities or blue
sky laws, in reliance upon certain exemptions
Exhibit - 10.28
from registration and qualification thereunder, and that the Subscriber has no
right to require the Company to register the Securities under the Act or any
such state laws (except as set forth in the Term Sheet). The Subscriber
acknowledges that the Company's reliance upon such exemptions is based on the
representations and agreements set forth herein. The Subscriber understands that
the restricted Securities may not be sold by the Subscriber except pursuant to
an effective registration statement under the Act or an exemption from
registration thereunder, and that an opinion of counsel satisfactory to the
Company may be required as a condition of any such sale. The Subscriber consents
to the placement of a legend on the certificate(s) evidencing the Securities
referring to their issuance in an exempt transaction and setting forth such
restrictions on resale.
4. Representations and Warranties. The Subscriber hereby acknowledges,
represents, warrants, covenants, agrees and understands that (please initial
each space provided):
(a) ________The Subscriber has carefully reviewed the risks of, and
other considerations relevant to, a purchase of the Securities and fully
understands all such risks. The Subscriber, either alone or with the
Subscriber's purchaser representative(s), has such knowledge and experience in
financial and business matters and investments in particular that the Subscriber
is or they are capable of evaluating the merits and risks of the Subscriber(s)
purchase of the Securities. The Subscriber has adequate means of providing for
current needs and personal contingencies, has no need for liquidity in this
investment, and can bear the economic risk of this investment (that is, can
afford a complete loss of this investment and can hold the Securities
indefinitely). The Subscriber has obtained, in the Subscriber"s) judgement,
sufficient information relating to the Company and its proposed business to
evaluate the merits and risks of this investment.
(b) ________The Subscriber confirms that, if requested, all
documents, records, books and information pertaining to the Subscriber(s)
proposed purchase of the Securities, the offering of the Securities and the
business of the Company have been made available to the Subscriber. The
Subscriber has been given access to any additional information necessary to
verify the accuracy of any representation made to the Subscriber by the
Company's management team.
(c) ________The Subscriber has had an adequate opportunity to ask
questions of a person or persons acting on behalf of the Company concerning the
proposed business and affairs of the Company and the terms and conditions of the
Subscriber(s) purchase of the Securities, and all such questions have been
answered to the satisfaction of the Subscriber.
(d) ________The Subscriber understands that the Business Plan
provided in connection with this Agreement is for informational purposes only,
and while believed to be accurate, the information contained therein is subject
to change.
(e) ________The Subscriber understands that neither the Securities
and Exchange Commission nor any state securities commission or other state
regulatory agency has made any finding or determination relating to the fairness
of public investment in the Securities and that no such commission or agency has
recommended or endorsed or will recommend or endorse the purchase of the
Securities.
(f) ________The Subscriber is an accredited investor within the
meaning of Rule 501(a) of Regulation D under the Act because (please check one
or both of the
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Exhibit - 10.28
following spaces, as appropriate) ____ (i) my individual net worth, or joint net
worth with my spouse, currently exceeds $1,000,000; or ____ (ii) my individual
income in each of the two most recent years was in excess of $300,000, or my
joint income with my spouse in each of those years was in excess of $300,000,
and I have a reasonable expectation of reaching the same income level in the
current year.
(g) ________The Subscriber confirms that no representations or
promises have been made by the Company, nor its principals, to induce the
Subscriber to enter into this Agreement, except as specifically included herein.
(h) ________The foregoing representations, acknowledgments, and
covenants are made by the Subscriber with the intent that they be relied upon in
determining the undersigned's suitability as a purchaser of the Securities, and
the Subscriber hereby agrees to indemnify the Company, its affiliates, and its
respective officers, directors, employees, agents, and representatives
(including the Company's legal counsel) against all losses, claims, costs,
expenses, damages, or liabilities that any of them may suffer or incur, caused
or arising from their reliance thereon. The Subscriber undertakes to notify the
Company immediately of any change in any representation or warranty or other
information relating to the Subscriber set forth herein that takes place prior
to issuance of the Securities.
5. Lock-Up Provision. In the event the Company undertakes to conduct an
initial public offering, the Subscriber agrees to abide by any lock-up provision
or other restriction of sale of the Common Stock as required under any
underwriters or other distribution agreement entered into between the Company
and such underwriter or distributor.
6. Binding Effect. This Subscription Agreement and the acknowledgments,
representations, warranties, agreements and indemnities contained herein, shall
survive and continue after the acceptance of the Subscriber(s) subscription by
the Company, and shall be binding upon the heirs, legal representatives,
successors and assigns of the Subscriber.
7. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereunder and no waiver,
alteration or modification of any of the provisions hereof shall be binding
unless it is in writing and signed by all of the parties hereto. 8. Assignments.
The Subscriber may not assign this Agreement or the rights ----------- arising
hereunder without the prior written consent of the Company.
9. Notices. All notices or other communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the undersigned subscriber or the Company
at the addresses set forth below:
If to the Company:
XXXx.xxx, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: President
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Exhibit - 10.28
If to the Subscriber:
--------------------------
--------------------------
10. Governing Law. This Agreement shall be governed by and enforced in
accordance with the laws of the State of Florida.
11. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original but all of which together shall constitute
one and the same instrument.
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Exhibit - 10.28
SUBSCRIBER:_______________________ Number of Units Subscribed for:
__________________________________ ______________
_______________________
Print Name of Subscriber Consideration Paid : $________
Executed this _____ day
of__________, 2000.
Type of Subscriber (Check One)
_____ Individual(s)*
_____ Trust**
_____ Company***
_____ Corporation****
*For unmarried individuals, please provide a signed Subscription Agreement
for each individual.
**If a custodian, trustee or agent, please include trust, agency or other
agreement and a certificate authorizing investment and as to legal
existence of the trust.
***If a partnership, please provide a certified copy of the partnership
agreement and any amendment thereto. If not a limited partnership, please
provide, in addition, a certificate of limited partnership as currently in
effect.
****If a corporation, please include articles of incorporation and bylaws, as
amended and currently in effect, certified corporate resolution or other
document authorizing the investment, certificate of incumbency of officers
and certified or audited financial statements for the preceding three
fiscal years.
SUBSCRIBER
(Signature) _______________________________________________________
RESIDENTIAL ADDRESS OF SUBSCRIBER:
---------------------------------------------------
(Number and Street)
---------------------------------------------------
(City, State and Zip Code)
---------------------------------------------------
(Social Security or Taxpayer Identification Number)
ACCEPTANCE BY THE COMPANY:
Accepted this ___ day of _________, 2000.
-----------------------------------
Xxxxxx X. Richfield, President
Exhibit - 10.28
INFE TERM SHEET
Term Sheet
February, 2000
Private Subscription
XXXx.xxx, Inc. (the "Company")
1. Security: 1,000,000 units. Each unit is comprised of one share of
XXXx.xxx, Inc. Rule 144 restricted stock priced at $1.00 (one dollar) per
share and one share of IT*XxxxxxXXX.Xxx, Inc., restricted common stock.
2. Offering Price: $1.00 per unit. Minimum investment: 10,000 units
($10,000.00).
3. Registration Rights: Unit Investors will be granted limited piggyback
rights on restricted shares, subject to underwriter approval. A one-time
demand right will be granted, which right will be exercisable after the
expiration of the lock-up period.
4. Transfer Restrictions: Unit Investors will be required to hold their
shares of Restricted Common Stock for a period of 12 months from the date
of issuance. After this lock-up period, Unit Investors will be free to
transfer their shares of Common Stock.
5. Use of Proceeds: The proceeds from the sale of the Units will be used (i)
to consummate acquisitions to provide working capital for the company and
(ii) to become fully reporting with the SEC and file for a NASDAQ Small
Cap listing.
6. Secondary Offering: Following closing of the sale of Units in this
"offering" round, the Company intends to file a registration for a
secondary offering at a valuation greater than that currently placed on
the Units, with a target of $5 million in order to explore and consummate
further acquisitions and enable the Company to qualify for listing on the
NASDAQ Small Cap Market.
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