EXECUTION COUNTERPART
24HOLDINGS, INC.
COMMON STOCK SUBSCRIPTION AGREEMENT
SUBSCRIBER:
XXXXXX BAY MASTER FUND LTD.
NUMBER OF SHARES: 344,210
Dated: May 9, 2013
SUBSCRIPTION AGREEMENT
[For Purchase of Shares of Common Stock]
THIS SUBSCRIPTION AGREEMENT CONSTITUTES AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY 344,210 SHARES OF COMMON STOCK OF
24HOLDINGS, INC., AND THIS OFFERING IS MADE ONLY TO THOSE INVESTORS
WHO QUALIFY AS 'ACCREDITED INVESTORS' WITHIN THE MEANING OF RULE
501(A) OF THE SECURITIES ACT OF 1933, AS AMENDED.
THE SECURITIES SUBSCRIBED FOR BY THIS AGREEMENT ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE 'SECURITIES ACT'), AND APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
THE SECURITIES SUBSCRIBED FOR BY THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF
CERTAIN STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND
SUCH LAWS. THE SECURITIES SUBSCRIBED FOR BY THIS AGREEMENT HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE
SECURITIES OFFERED BY THE COMPANY. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
24Holdings, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned (the 'Subscriber'), desires to become
a holder of 344,210 shares of Common Stock, $.001 par value, (the
'Common Stock') of 24Holdings, Inc., a corporation organized under
the laws of the state of Delaware (the 'Company'). Accordingly,
the Subscriber hereby agrees as follows:
1. Subscription. The Subscriber hereby subscribes for
and agrees to accept from the Company pursuant to this Subscription
Agreement (the 'Agreement'), 344,210 shares of Common Stock (the
'Securities') in consideration of $0.1946488 per Share, or aggregate
consideration of $67,000.
2. Purchase Procedure; Delivery of Certificates. The
Subscriber acknowledges that, in order to subscribe for Shares, it
must, and it does hereby, deliver to the Company:
2.1 One executed counterpart of the Signature Page
attached to this Agreement; and
2.2 A wire transfer, in the amount of $67,000 sent to
the bank account designated by 24Holdings, Inc. on the signature
page hereto.
2.3 The Company will deliver to the Subscriber a
certificate representing the Securities within 30 days of the date
hereof.
3. Purchaser's Representations. Subscriber hereby
represents and warrants as of the date hereof as follows:
(a) Organization; Authority. Such Subscriber is an
entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and
to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of the Agreement and performance by such
Subscriber of the transactions contemplated by the Agreement have
been duly authorized by all necessary corporate, partnership, limited
liability company or similar action, as applicable, on the part of
such Subscriber. This Agreement has been duly executed by such
Subscriber, and when delivered by such Subscriber in accordance
with the terms hereof, will constitute the valid and legally binding
obligation of such Subscriber, enforceable against it in accordance
with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by
applicable law.
(b) Own Account. Such Subscriber understands that the
Securities are 'restricted securities' and have not been registered
under the Securities Act or any applicable state securities law and
is acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or
any part thereof in violation of the Securities Act or any applicable
state securities law, has no present intention of distributing any
of such Securities in violation of the Securities Act or any
applicable state securities law and has no direct or indirect
arrangement or understandings with any other persons to distribute or
regarding the distribution of such Securities in violation of the
Securities Act or any applicable state securities law (this
representation and warranty not limiting such Subscriber's right
to sell the Securities otherwise in compliance with applicable
federal and state securities laws). Such Subscriber is acquiring the
Securities hereunder in the ordinary course of its business.
(c) Subscriber Status. At the time such Subscriber was
offered the Securities, it was, and as of the date hereof it is, and
on each date on which it exercises any Warrants, it will be either:
(i) an 'accredited investor' as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a
'qualified institutional buyer' as defined in Rule 144A(a) under the
Securities Act. Such Subscriber is not required to be registered as
a broker-dealer under Section 15 of the Exchange Act.
(d) Experience of Such Subscriber. Such Subscriber,
either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated
the merits and risks of such investment. Such Subscriber is able to
bear the economic risk of an investment in the Securities and, at the
present time, is able to afford a complete loss of such investment.
(e) General Solicitation. Such Subscriber is not
purchasing the Securities as a result of any advertisement, article,
notice or other communication regarding the Securities published in
any newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or any other general solicitation
or general advertisement.
(f) Investment Risk; No Review. Such Subscriber
understands that an investment in the Securities involves substantial
risks and Subscriber recognizes and understands the risks relating to
the purchase of the Securities. Such Subscriber further
understands that (i) the offering contemplated hereby has not been
reviewed by any federal or state governmental body or agency due in
part to the Company's representations that it will comply with the
provisions of Regulation D; (ii) if required by the laws or
regulations of said state(s) the offering contemplated hereby will
be submitted to the appropriate authorities of such state(s) for
registration or exemption therefrom; and (iii) the documents used
in connection with this Offering have not been reviewed or approved
by any regulatory agency or government department, nor has any such
agency or government department made any finding or determination as
to the fairness of the Securities for investment.
(g) Available Information. Such Subscriber represents
that the Company has made available to it all information which it
deemed material to making an informed investment decision in
connection with his purchase of Securities; and that it has been
represented by Counsel and been advised concerning the risks and
merits of this investment. Further, Subscriber acknowledges that the
Company has made available to it the opportunity to ask questions
of, and receive answers from the Company, its officers,
directors and other persons acting on its behalf.
4. Company Representations.
(a) Authorization; Enforcement. The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The execution
and delivery of each of this Agreement and the consummation by it
of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the
Company's stockholders in connection herewith. This Agreement has
been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors'
rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b) No Conflicts. The execution, delivery and
performance by the Company of this Agreement, the issuance and sale
of the Securities and the consummation by it of the transactions
contemplated hereby do not and will not: (i) conflict with or
violate any provision of the Company's certificate or articles of
incorporation, bylaws or other organizational or charter documents,
(ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default)
under, result in the creation of any lien upon any of the properties
or assets of the Company, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company debt or otherwise) or other
understanding to which the Company is a party or by which any
property or asset of the Company is bound or affected, or (iii)
conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company is bound.
(c) Filings, Consents and Approvals. The Company is not
required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority
or other person in connection with the execution, delivery and
performance hereof by the Company.
(d) Issuance of the Securities. The Securities are duly
authorized and, when issued and paid for in accordance with the terms
of this Agreement, will be duly and validly issued, fully paid and
nonassessable, free and clear of all liens imposed by the Company
other than restrictions on transfer imposed by Federal securities
laws and similar state securities law statutes.
(e) Capitalization. The current capitalization of the
Company is as set forth on Schedule 4(e) hereto. No Person has any
right of first refusal, preemptive right, right of participation, or
any similar right to participate in the transactions contemplated
by this Agreement. There are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any
person any right to
subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is
or may become bound to issue additional shares of Common Stock. The
issuance and sale of the Securities will not obligate the Company to
issue shares of Common Stock or other securities to any person
(other than the Subscribers) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion,
exchange or reset price under any of such securities. All of the
outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, and
none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any stockholder,
the Board of Directors or others is required for the issuance and
sale of the Securities.
(f) SEC Reports; Financial Statements. The Company has
filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, being collectively
referred to herein as the 'SEC Reports') on a timely basis or has
received a valid extension of such time of filing and has filed any
such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent
basis during the periods involved ('GAAP'), except as may be
otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal, immaterial, year-end
audit adjustments.
5. Indemnification.
(a) Subscriber hereby agrees to indemnify and hold
harmless the Company and the Company's officers, directors,
employees, agents and affiliates from and against any and all
damages, losses, costs, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) which they, or any of them,
may incur by reason of the Subscriber's failure to fulfill any of the
terms and conditions of this Agreement or by reason of the
Subscriber's breach of any of his representations and warranties
contained herein. This Agreement and the representations and
warranties contained herein shall be binding upon the Subscriber's
heirs, executors, administrators, representatives, successors and
assigns.
(b) The Company hereby agrees to indemnify and hold
harmless the Subscriber and the Subcriber's officers, directors,
employees, agents and affiliates from and against any and all damages
, losses, costs, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) which they, or any of them,
may incur by reason of the Company's failure to fulfill any of the
terms and conditions of this Agreement or by reason of the Company's
breach of any of his representations and warranties contained herein.
This Agreement and the representations and warranties contained
herein shall be binding upon the Company's heirs, executors,
administrators, representatives, successors and assigns.
THE COMPANY HAS BEEN ADVISED THAT THE INDEMNIFICATION OF THE
COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
AFFILIATES FOR VIOLATIONS OF STATE OR FEDERAL SECURITIES LAWS IS
VOID AS AGAINST PUBLIC POLICY AND THEREFORE UNENFORCEABLE.
6. Arbitration Agreement.
6.1 Subscriber represents, warrants and covenants that
any controversy or claim brought directly, derivatively or in a
representative capacity by him in his capacity as a present or
former security holder, whether against the Company, in the name
of the Company or otherwise, arising out of or relating to any acts
or omissions of the Company, or any security holder or any of their
officers, directors, agents, affiliates, associates, employees or
controlling persons (including without limitation any controversy or
claim relating to a purchase or sale of the Note) shall be settled by
arbitration under the Federal Arbitration Act in accordance with
the commercial arbitration rules of the American Arbitration
Association ('AAA') and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction
thereof. Any controversy or claim brought by the Company against the
Subscriber, whether in his capacity as present or former security
holder of the Company in or against any of the Subscriber's
officers, directors, agents, affiliates, associates, employees or
controlling persons shall also be settled by arbitration under the
Federal Arbitration Act in accordance with the commercial
arbitration rules of the AAA and judgment rendered by the arbitrators
may be entered in any court having jurisdiction thereof. In
arbitration proceedings under this Paragraph 5, the parties
shall be entitled to any and all remedies that would be available in
the absence of this Paragraph 5 and the arbitrators, in rendering
their decision, shall follow the substantive laws that would
otherwise be applicable. This Paragraph 6 shall apply, without
limitation, to actions arising in connection with the offer and sale
of the Notes contemplated by this Agreement under any Federal or
state securities laws.
6.2 The arbitration of any dispute pursuant to this
Paragraph 6 shall be held in New York City, New York.
7. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws applicable to contracts
made and wholly performed in the State of Delaware.
8. Execution in Counterparts. This Agreement may be
executed in one or more counterparts.
9. Persons Bound. This Agreement shall, except as
otherwise provided herein, inure to the benefit of and be binding
on the Company and its successors and assigns and on each Subscriber
and his respective heirs, executors, administrators, successors
and assigns.
10. Entire Agreement. This Agreement, when accepted by
the Company, will constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings, inducements
or conditions, express or implied, oral or written, except as herein
contained. This Agreement may not be modified, changed, waived or
terminated other than by a writing executed by all the parties
hereto. No course of conduct or dealing shall be construed to modify,
amend or otherwise affect any of the provisions hereof.
11. Assignability. The Subscriber acknowledges that he
may not assign any of his rights to or interest in or under this
Agreement without the prior written consent of the Company, and any
attempted assignment without such consent shall be void and without
effect.
12. Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered
personally, telegraphed, telexed, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid, to
the address of each party set forth herein. Any such notice shall be
deemed given when delivered personally, telegraphed, telexed or sent
by facsimile transmission or, if mailed, three days after the date of
deposit in the United States mails.
13. Interpretation.
13.1 When the context in which words are used in this
Agreement indicates that such is the intent, singular words shall
include the plural, and vice versa, and masculine words shall
include the feminine and neuter genders, and vice versa.
13.2 Captions are inserted for convenience only, are not
a part of this Agreement, and shall not be used in the interpretation
of this Agreement.
[signature page follows]
?
IN WITNESS WHEREOF, the undersigned has hereby executed this
Subscription Agreement as of the date set forth below.
(PLEASE PRINT OR TYPE)
Exact name of Subscriber: Xxxxxx Bay Master Fund Ltd.
Signature of Subscriber:
By: /s/ Xxxxxx Xxxxxxxxxxxx
(Signature)
Date: May 9, 2013
Mailing Address:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxx Xxxx / Xxxxxx Xxxxxxxxxxxx
Email: xxxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
Telephone Numbers: (000) 000-0000
Taxpayer Identification Number: 00-000-0000
24Holdings, Inc. Wire Instructions:
XX Xxxxxx Chase Bank
For credit to the account of:
Xxxxx Xxxxxxx Xxxx & Xxxxxx, LLP
Attorney Trust Account
ABA#000000000
Account #967086639
F/B/O: 24Holdings, Inc.
ACCEPTANCE OF SUBSCRIPTION
I, Xxxxxx X. Xxxxx, President of 24Holdings, Inc. for and on behalf
of the Company, hereby accept the subscription of Xxxxxx Bay Master
Fund Ltd. to purchase 344,210 Shares of 24Holdings, Inc. for the
aggregate consideration of $67,000 this 9th day of May, 2013.
24Holdings, Inc.
Xxxxxx X. Xxxxx
President
Schedule 4(e)
..
Name of Beneficial Owner
Shares of
Common Stock
Beneficially
Owned
Percentage of
Ownership
R&R Biotech Partners, LLC (1)
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, CFO
698,696
50.5%
Xxxxxx X. Xxxxx (2)
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
294,674
21.3%
Xxxx X. Xxxxxxx (3)
000 Xxxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
80,000
5.8%
Infinicom AB
138,322
10.0%
(1) Shares purchased/to be purchased by Xxxxxx Bay Master Fund Ltd.
and Iroquois Master Fund Ltd. from Chapter 7 Trustee.
(2) Includes all the shares held by Moyo Partners, LLC.
(3) Xx. Xxxxxxx is our chief financial officer, secretary and a
director.
11
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