Exhibit 10.12
SUBSCRIPTION AGREEMENT
Digital Descriptor Systems, Inc.
a Delaware Corporation
Xx. Xxxxxxx Xxxx
Digital Descriptor Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Dear Xx. Xxxx:
The undersigned (the "Subscriber") understands that Digital Descriptor Systems,
Inc., a Delaware corporation (the "Company") is offering for sale 13,333,333
shares of common stock of the Company in consideration of cash at $0.03 per
share, in $10,000.00 (u.s.) blocks, equaling 333,333 shares per block, for an
aggregate total of $400,000.
The Subscriber acknowledges and understands that the offering of the Shares (the
"Offering") is being made without registration of the Shares under the
Securities Act of 1933, as amended (the "Act"), or any securities, "blue sky" or
other similar laws of any state ("State Securities Laws").
1. Subscription. The Subscriber hereby subscribes for and agrees to purchase
_________Shares for the aggregate purchase consideration of ____________.
2. Payment for the Shares. The undersigned herewith tenders the consideration
("Purchase Price") required to purchase the amount of Shares subscribed for
hereunder. Payment of the Purchase Price is being made wire transfer or
deposit by certified check into the following escrow account:
Bank: Union Bank of California
The Private Bank - Newport Beach
Xxxxxx, XX 00000
ABA Routing: 122 000 496
Account No: 000 000 0000
Account Name: Xxxx X. Xxxxxxxxx
Attorney Fund Account III
If this subscription is not accepted or the Offering is terminated by the
Company for any reason all documents will be returned to the Subscriber.
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3. Acceptance of Subscription. The Subscriber understands and acknowledges that
the Company has the unconditional right, exercisable in its sole and
absolute discretion, to (i) accept or reject this Subscription Agreement, in
whole or in part, (ii) no subscription shall be valid unless and until
accepted by the Company, (iii) this Subscription Agreement shall be deemed
to be accepted by the Company only when it is signed by an authorized
officer of the Company on behalf of the Company, and (iv) notwithstanding
anything in this Subscription Agreement to the contrary, the Company shall
have no obligation to issue the Shares to any person to whom the issuance of
the Shares would constitute a violation of the Act or any State Securities
Laws. The Company will cause the Secretary of the Company to deliver the
Shares purchased by the Subscriber to the Subscriber promptly after the
Company has accepted this Subscription Agreement.
4. Representations and Warranties of the Subscriber. The Subscriber hereby
represents and warrants to and covenants with the Company, as well as each
officer, director and agent of the Company, and each soliciting broker, if
any, as follows:
(a) General
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(i) The Subscriber has all requisite authority to
enter into this Subscription Agreement and to perform all the
obligations required to be performed by the Subscriber
hereunder.
(ii) The Subscriber is the sole party in interest and
is not acquiring the Shares as an agent or otherwise for any
other person. The Subscriber is a resident of the state set
forth opposite its name on the signature page hereto and (a)
if a corporation, partnership, trust or other form of business
organization, it has its principal office within such state;
(b) if an individual, he or she has his or her principal
residence in such state; and (c) if a corporation,
partnership, trust or other form of business organization
which was organized for the specific purpose or acquiring the
Shares, all of the beneficial owners are residents of such
state.
(iii) The Subscriber recognizes that the total amount
of consideration tendered to purchase the Shares is placed at
the risk of the business and may be completely lost. The
purchase of the Shares of the Company as an investment
involves extreme risk.
(iv) The Subscriber realizes that the Shares cannot
readily be sold as there will be no public market therefor,
that it may not be possible to sell or dispose of the and
therefore the Shares must 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 provide for current needs and possible personal
contingencies.
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(v) The Subscriber confirms and represents that
he/she is able (i) to bear the economic risk of his/her
investment, (ii) to hold the securities for an indefinite
period of time, and (iii) to afford a complete loss of his/her
investment. The Subscriber also represents that he/she has (i)
adequate means of providing for his/her current needs and
possible personal contingencies, and (ii) has no need for
liquidity in this particular investment.
(vi) The Subscriber represents that he/she has
sufficient knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of
the proposed investment.
(vii) The Subscriber has not become aware of the
offering of Shares of the Company by any form of general
solicitation or advertising, including, but not limited to
advertisements, articles, notices or other communications
published in any newspaper, magazine or other similar media or
broadcast over television or radio or any seminar or meeting
where those individuals that have attended have been invited
by any such or similar means of general solicitation or
advertising.
(b) Information Concerning the Company.
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(i) The Subscriber has been provided access to all
information requested in evaluating his/her purchase of the
Shares.
(ii) The Subscriber is familiar with the business and
financial condition, properties, operations and prospects of
the Company, and, at a reasonable time prior to the execution
of this Subscription Agreement, has been afforded the
opportunity to ask questions of and received satisfactory
answers from the Company's officers and directors, or other
persons acting on the Company's behalf, concerning the
business and financial condition, properties, operations and
prospects of the Company and concerning the terms and
conditions of the offering of the Shares and has asked such
questions as it desires to ask and all such questions have
been answered to the full satisfaction of the Subscriber.
(iii) The Subscriber understands that, unless the
Subscriber notifies the Company in writing to the contrary
before the Closing, all the representations and warranties
contained in this Subscription Agreement will be deemed to
have been reaffirmed and confirmed as of the Closing, taking
into account all information received by the Subscriber.
(iv) The Subscriber understands that the purchase of
the Shares involves various risks.
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(v) No representations or warranties have been made
to the Subscriber by the Company as to the tax consequences of
this investment, or as to profits, losses or cash flow which
may be received or sustained as a result of this investment.
(vi) All documents, records and books pertaining to a
proposed investment in the Shares which the Subscriber has
requested have been made available to the Subscriber.
(c) Status of the Subscriber
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(i) The Subscriber represents that the Subscriber is
an Accredited Investor as the term Accredited Investor is
defined in Rule 501 of Regulation D of the Act. (check each
category of "Accredited Investor" below which is applicable to
the Subscriber):
( ) (A) a 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;
( ) (B) a 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 same income level in the current year.
( ) (C) a bank as defined in Section 3(a)(2) of the Act or a savings
and loan association or other institution as defined in Section 3(a)(5) (A) of
the Act, whether acting in its individual or fiduciary capacity; broker or
dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934;
an insurance partnership as defined in Section 2(13) of the Act; an investment
company registered under the Investment Company Act of 1940 (the "1940 Act") or
business development company as defined in Section 2(a) (48) of the 1940 Act; a
Small Business Investment Company licensed by the U.S. Small Business as defined
under Section 301(c) or (d) of the Small Investment Act of 1958; a plan
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; or an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 ("ERISA"), if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which fiduciary 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 (as listed in categories (A) - (G));
( ) (D) a private business development company as defined in Section
202(a) (22) of the Investment Advisors Act of 1970;
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( ) (E) an organization described in Section 501 (c)(3) of the Internal
Revenue Code, a corporation, Massachusetts or similar business trust, or a
partnership, with total assets in excess of $5,000,000, and which was not formed
for the specific purpose of acquiring the Common Stock;
( ) (F) a trust, with total assets in excess of $5,000,000 not formed
for the specific purposes of acquiring the Common Stock whose purchase is
directed by a person who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Common Stock; and
( ) (G) an entity in which all of the equity owners are Accredited
Investors (as listed in categories (A) - (F)) or is an Accredited Investor
defined by Regulation D.
(ii) The Subscriber is a non-accredited investor and;
( ) (A) The Subscriber represents that he/she has sufficient knowledge
and experience in financial and business matters to be capable of evaluating the
merits and risks of the proposed investment.
( ) (B) Represents that he/she has received the current financial
information on the Company to review and in fact has reviewed the documents.
(iii) The Subscriber agrees to furnish any additional
information requested to assure compliance with applicable Federal and State
Securities Laws in connection with the purchase and sale of the Common Stock.
(d) Restrictions on Transfer or Sale of the Shares or
Securities Underlying the Shares
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(i) The Subscriber is acquiring the Shares subscribed solely
for the Subscriber's own beneficial account, for investment
purposes, and not with view to, or for resale in connection
with, any distribution of the Shares. The Subscriber
understands that the offer and the sale of the Shares has not
been registered under the Act or any State Securities Laws by
reason of specific exemptions under the provisions thereof
which depend in part upon the investment intent of the
Subscriber and of the other representations made by the
Subscriber in this Subscription Agreement. The Subscriber
understands that the Company is relying upon the
representations, covenants and agreements contained in this
Subscription Agreement (and any supplemental information) for
the purposes of determining whether this transaction meets the
requirements for such exemptions.
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(ii) The Subscriber understands that the Shares are all
"restricted securities" under applicable federal securities
laws and that the Act and the rules of the Securities and
Exchange Commission (the "Commission") provide in substance
that the Subscriber may dispose of the Shares only pursuant to
an effective registration statement under the Act or an
exemption therefrom. The certificates evidencing the Shares
offered hereby will bear a legend which clearly sets forth
this restriction. The Subscriber understands that the
Subscriber may not at any time demand the purchase by the
Company of the Subscriber's Shares. The legend will state as
follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (AACT@), OR THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUNAT TO AN EXEMPTION FROM
REGISTRATION AND DELIVERY TO XXXX RESOURCES CORPORATION OF AN OPINION OF LEGAL
COUNSEL SATISFACTORY TO XXXX RESOURCES CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS".
(iii) The Subscriber agrees: (A) that the Subscriber will not
sell, assign, pledge, give, transfer or otherwise dispose of
the Shares, or any interest therein, or make any offer or
attempt to do any of the foregoing, except pursuant to a
registration of the Shares under the Act and all applicable
State Securities Laws or in a transaction which is exempt from
the registration provisions of the Act and all applicable
State Securities Laws; (B) that the Company and any transfer
agent for the Shares of the Company shall not be required to
give effect to any purported transfer of any of the Shares
except upon compliance with the foregoing restrictions; and
(C) that a restrictive legend will be placed on the
certificates representing the Shares.
(iv) The Subscriber has not offered or sold any portion of the
Shares subscribed for and has no present intention of dividing
such Shares with others or of reselling or otherwise disposing
of any portion of such Shares either currently or after the
passage of a fixed or determinable period of time or upon the
occurrence or nonoccurrence of any predetermined event or
circumstance.
5. Survival and Indemnification. All representations, warranties and covenants
contained in this Agreement and the indemnification contained in this
Paragraph 5 shall survive (i) the acceptance of the Subscription Agreement
by the Company (ii) changes in this transaction and documents related to
this transaction which are not material or which are to the benefit of the
Subscriber, and (iii) the death or disability of the Subscriber. The
Subscriber acknowledges the meaning and legal consequences of the
representations, warranties and covenants in Paragraph 4 hereof and that the
Company has relied upon such representations, warranties and covenants in
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determining the Subscriber's qualification and suitability to purchase the
Shares. The Subscriber hereby agrees to indemnify, defend and hold harmless
the Company, and its officers, directors, employees, agents and controlling
persons, from and against any and all losses, claims, damages, liabilities,
expenses (including attorneys' fees and disbursements), judgment or amounts
paid in settlement of actions arising out of or resulting from the untruth
of any representation herein or the breach of any warranty or covenant
herein. Notwithstanding the foregoing, however, no representation, warranty,
covenant or acknowledgment made herein by the Subscriber shall in any manner
be deemed to constitute a waiver of any rights granted to it under the
Securities or State Securities laws.
6. Conditions to Obligations of the Company. The obligations of the Company to
sell the Shares specified herein is subject to the condition that the
representations and warranties of the Subscriber contained in Paragraph 4
hereof shall be true and correct on and as of the Closing in all respects
with the same effect as though such representations and warranties had been
made on and as of the Closing.
7. Notices. All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt
requested, postage prepaid, or overnight air courier guaranteeing next day
delivery:
(a) if to the Company, to it at the following address:
Digital Descriptor Systems, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
(b) if to the Subscriber, at the address set forth on the last page hereof
or directly to the Subscriber at the address set forth on the signature
page hereto, or at such other address as either party shall have
specified by notice in writing to the other.
All notice and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; two days after being
deposited in the mail, postage prepaid, if mailed; and the next day after
timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.
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8. Notification of Changes. The Subscriber agrees and covenants to notify the
Company immediately upon the occurrence of any event prior to the Closing
which would cause any representation, warranty, covenant or other statement
contained in the Subscription Agreement to by false or incorrect or of any
change in any statement made herein occurring prior to the Closing.
9. Assignability. This Subscription Agreement is not assignable by the
Subscriber, and may not be modified, waived or terminated except by an
instrument in writing signed by each of the parties hereto.
10. Binding Effect. Except as otherwise provided herein, this Subscription
Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives
and assigns, and the agreements, representations, warranties and
acknowledgments contained herein shall be deemed to be made by and be
binding upon such heirs, executors, administrators, successors, legal
representatives and assigns. If the Subscriber is more than one person, the
obligation of the Subscriber shall be joint and several and the agreements,
representations, warranties and acknowledgments contained herein shall be
deemed to be made by and be binding upon each such person and his heirs,
executors, administrators and successors.
11. Obligations Irrevocable. The obligations of the Subscriber shall be
irrevocable, except with the consent of the Company, until the Closing or
earlier termination of the Offering.
12. Entire Agreement. This Subscription Agreement constitutes the entire
agreement of the Subscriber and the Company relating to the matters
contained herein, superseding all prior contracts or agreements, whether
oral or written.
13. Governing Law. This Subscription Agreement shall be governed and controlled
as to the validity, enforcement, interpretations, construction and effect
and in all other aspects by the substantive laws of the State of
Pennsylvania.
14. Severability. If any provision of this Subscription Agreement or the
application thereof to any Subscriber or circumstance shall be held invalid
or unenforceable to any extent, the remainder of this Subscription Agreement
and the application of such provision to other subscriptions or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
15. Headings. The headings in this Subscription Agreement are inserted for
convenience and identification only and are not intended to describe,
interpret, define, or limit the scope, extent or intent of this Subscription
Agreement or any provision hereof.
16. Counterparts. This Subscription Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which together shall be deemed to be one and
the same agreement.
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17. Documents Being Tendered. The Subscriber hereby tenders a completed and
executed copy of this Subscription Agreement, along with the consideration
for the Shares subscribed.
18. Amount of Shares Subscribed For. The Subscriber hereby subscribes to
purchase the following number of Shares, for the following Subscription
Amount.
Shares:___________________________________________
Consideration:____________________________________
IN WITNESS WHEREOF, the undersigned Subscriber has executed this
Subscription Agreement this ____ day of _______________, 2001.
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EXECUTION
Please execute this Subscription Agreement by completing the
appropriate section below.
1. If the subscriber is an INDIVIDUAL, complete the following:
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Signature of Investor
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Name (Please type or print)
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Social Security Number (or Tax I.D.)
Signature of Spouse or Co-Owner if funds
are to be invested as joint tenants by the
entirety or community property.
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Name (Please type or print)
ACCEPTED by the Company this the ____ day of __________, 2001.
DIGITAL DESCRIPTOR SYSTEMS INC., A DELAWARE CORPORATION.
By:
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Xxxxxxx X. Xxxx, President
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