EXHIBIT 10.1
APOGEE TECHNOLOGY, INC.
STOCK SUBSCRIPTION AGREEMENT
Apogee Technology, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Subject to the terms and conditions set forth below, the undersigned
hereby offers to purchase from Apogee Technology, Inc., a Delaware corporation
(the "Company"), ____ units (the "Securities"), each unit consisting of one (1)
share of the Company's Common Stock, par value $.01 per share, and a right to
purchase one-fifth (1/5) of a share of Common Stock, for the aggregate purchase
price of $______ in cash ($2.00 per unit), which accompanies this Agreement.
Attached hereto is a form of warrant which will be issued to the undersigned to
evidence the aggregate rights to be received along with the unit shares.
In connection with the execution of this Agreement and to induce the
Company to sell the Securities to the undersigned, the undersigned hereby
represents, warrants and agrees as follows:
1. Accredited Investor. I am an "accredited investor" as such term is
defined in Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"), for the following reason (Please initial one or more):
___ My individual income was in excess of $200,000 in each of the past
two years, or my joint income with my spouse was in excess of
$300,000 in each of those years, and I reasonably expect my income
to reach the same level in the current year.
___ My individual net worth or joint net worth with my spouse exceeds
$1,000,000.
___ The undersigned is a trust, corporation or partnership with total
assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the Securities, whose purchase of the Securities will
be directed by a person whose knowledge and experience in financial
and business matters is such that he or she is capable of evaluating
the merits and risks of the investment in the Securities.
___ The undersigned is an entity in which all of the equity owners are
accredited investors.
___ Other (Please specify): ___________________________________________
2. Experience and Suitability. I am qualified by my knowledge and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Securities and to make an informed decision relating
thereto. I have the financial capability for making the
investment and protecting my interests, and I can afford a complete loss of the
investment. The investment is a suitable one for me.
3. No Need for Liquidity. I am aware that I will be unable to liquidate my
investment readily in case of an emergency and that the Securities being
purchased may have to be held for an indefinite period of time. My overall
commitment to investments which are not readily marketable is not excessive in
view of my net worth and financial circumstances and the purchase of the
Securities will not cause such commitment to become excessive. In view of such
facts, I acknowledge that I have adequate means of providing for my current
needs, anticipated future needs and possible contingencies and emergencies and
have no need for liquidity in the investment in the Securities. I am able to
bear the economic risk of this investment.
4. Opportunity to Investigate. Prior to the execution of this Agreement,
my advisors and I have had the opportunity to ask questions of, and receive
answers from, representatives of the Company concerning the terms and conditions
of this transaction, and the finances, operations, business and prospects of the
Company. My advisors and I have also had the opportunity to obtain additional
information necessary to verify the accuracy of information furnished about the
Company. Accordingly, I have independently evaluated the risks of purchasing the
Securities, and I am satisfied that I have received information with respect to
all matters which I consider material to my decision to make this investment.
5. Investment Purpose. I am acquiring the Securities for my own account
for the purpose of investment and not with a view to, or for resale in
connection with, the distribution thereof, nor with any present intention of
distributing or selling the Securities. I understand that the Securities have
not been registered under the Securities Act or the securities laws of any
state, and I hereby agree not to make any sale, transfer or other disposition of
any such Securities unless either (i) the Securities first shall have been
registered under the Securities Act and all applicable state securities laws, or
(ii) an exemption from such registration is available, and the Company has
received such documents and agreements from me and the transferee as the Company
requests at such time.
6. Legends. I understand that until the Securities have been registered
under the Securities Act and applicable state securities laws each certificate
representing such securities shall bear a legend substantially similar to the
following:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws, have been acquired for investment, and
may not be sold, pledged, hypothecated or otherwise transferred
unless a registration statement under the Act and applicable state
law is in effect with regard thereto or unless an exemption from
such registration is available.
7. No Regulatory Approval of Merits. I understand that neither the
Securities and
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Exchange Commission nor the commissioner or department of securities or attorney
general of any state has passed upon the merits or qualifications of, nor
recommended nor approved, the Securities. Any representation to the contrary is
a criminal offense.
8. Independent Advice. I understand that I am urged to seek independent
advice from my professional advisors relating to the suitability for me of an
investment in the Company in view of my overall financial needs and with respect
to the legal and tax implications of such an investment.
9. Indemnification. I understand the meaning and legal consequences of
this Agreement and agree to indemnify and hold harmless the Company and each
director and officer thereof from and against any and all loss, damage or
liability due to or arising out of a breach of any representation, warranty or
agreement of the undersigned contained in this Agreement.
10. Authority and Noncontravention. The execution and performance hereof
violates no order, judgment, injunction, agreement or controlling document to
which the undersigned is a party or by which the undersigned is bound. If an
organization, (i) the undersigned is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it has been formed;
(ii) the undersigned has the right and power under its organizational
instruments to execute, deliver and perform its obligations hereunder; and (iii)
this Agreement has been duly authorized by all necessary action on the part of
all officers, directors, partners, stockholders and trustees and will not
violate any agreement to which the undersigned is a party; and (iv) the
individual executing and delivering this Agreement has the requisite right,
power, capacity and authority to do so on behalf of the organization. The
undersigned has not been organized for the purpose of subscribing for the
Securities.
11. Duration. I understand that I may not cancel, terminate or revoke this
Agreement or any agreement made by me hereunder and that this Agreement shall
survive my death or disability and shall be binding upon my heirs, executors,
administrators, successors and assigns.
12. Further Assurances. Within ten (10) days after receipt of a written
request from the Company, I agree to provide such information and to execute and
deliver such documents as reasonably may be necessary to comply with any and all
laws and ordinances to which the Company is subject.
13. Miscellaneous.
(a) Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a
party may designate by notice hereunder, and shall be either (i) delivered
by hand, (ii) made by telex, telecopy or facsimile transmission, (iii)
sent by overnight courier, or (iv) sent by registered mail, return receipt
requested, postage prepaid.
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If to the undersigned:
To the address designated in Section 14 hereof.
If to the Company:
To the address set forth at the top of this Agreement.
All notices, requests, consents and other communications hereunder shall
be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set
forth above, (ii) if made by telex, telecopy or facsimile transmission, at
the time that receipt thereof has been acknowledged by electronic
confirmation or otherwise, (iii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier
service, or (iv) if sent by registered mail, on the 5th business day
following the day such mailing is made.
(b) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly
set forth in this Agreement shall affect, or be used to interpret, change
or restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent shall be deemed to be or
shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent shall be effective only in the specific instance and for the
purpose for which it was given, and shall not constitute a continuing
waiver or consent.
(e) Assignment. This Agreement may not be transferred or assigned
without the prior written consent of the Company and any such transfer or
assignment shall be made only in accordance with applicable laws and any
such consent.
(f) Benefit. All statements, representations, warranties, covenants
and agreements in this Agreement shall be binding on the parties hereto
and shall inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement shall be construed
to create any rights or obligations except among the
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parties hereto, and no person or entity shall be regarded as a third-party
beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed
by the law of the State of Delaware, without giving effect to the conflict
of law principles thereof.
(h) Jurisdiction and Service of Process. Any legal action or
proceeding with respect to this Agreement shall be brought in the courts
of the Commonwealth of Massachusetts or of the United States of America
for the Eastern District of Massachusetts. By execution and delivery of
this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each of the parties hereto irrevocably consents
to the service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Section 13 (a)
hereof.
(i) Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unenforceable in any respect, then
such provision shall be deemed limited to the extent that such court deems
it enforceable, and as so limited shall remain in full force and effect.
In the event that such court shall deem any such provision, or portion
thereof, wholly unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect .
(j) Interpretation. The parties hereto acknowledge and agree that:
(i) each party and its or his counsel has reviewed the terms and
provisions of this Agreement; (ii) the rule of construction to the effect
that any ambiguities are resolved against the drafting party shall not be
employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to the parties
hereto and not in favor of or against any party, regardless of which party
was generally responsible for the preparation of this Agreement. Whenever
used herein, the singular number shall include the plural, the plural
shall include the singular, the use of any gender shall include all
persons.
(k) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect the meaning or construction of any of
the terms or provisions hereof.
(l) No Waiver of Rights, Powers and Remedies. No failure or delay by
a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall
operate as a waiver of any such right, power or remedy of the party. No
single or partial exercise of any right, power or remedy under
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this Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, shall preclude such
party from any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The election of any remedy by a
party hereto shall not constitute a waiver of the right of such party to
pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving
such notice or demand to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the party
giving such notice or demand to any other or further action in any
circumstances without such notice or demand.
(m) Survival of Representations and Warranties. All representations
and warranties made by the parties hereto in this Agreement or in any
other agreement, certificate or instrument provided for or contemplated
hereby, shall survive (i) the execution and delivery hereof, (ii) any
investigations made by or on behalf of the parties and (iii) the closing
of the transaction contemplated hereby, and shall remain in full force and
effect for a period of three years following the date of such closing.
(n) Expenses. Each of the parties hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions
contemplated hereby are consummated.
(o) No Broker or Finder. Each of the parties hereto represents and
warrants to the other that no broker, finder or other financial consultant
has acted on its behalf in connection with this Agreement or the
transactions contemplated hereby in such a way as to create any liability
on the part of the other. Each of the parties hereto agrees to indemnify
and save the other harmless from any claim or demand for commission or
other compensation by any broker, finder, financial consultant or similar
agent claiming to have been employed by or on behalf of such party and to
bear the cost of legal expenses incurred in defending against any such
claim.
(p) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
14. I am purchasing the Securities as follows (please check as
appropriate):
_____ individually _____ in trust
_____ joint tenants _____ as a partnership
_____ tenants in common _____ other: ____________________
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Name:___________________________________________________
Telephone:______________________________________________
Home Address:___________________________________________
City:___________________________________ State:_________
Zip:____________________________________________________
Business:_______________________________________________
Address:________________________________________________
City:___________________________________ State:_________
Zip:____________________________________________________
Business Telephone:_____________________________________
Communications should be sent to (please check one): ____ business or
____ home address
Federal Income Tax I.D. No. (Social Security Number for Individual
Investors):
________________________
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15. Under penalties of perjury, I certify that:
A. The number shown above is my correct Taxpayer Identification
Number;
B. I am not subject to backup withholding either because I have not
been notified by the Internal Revenue Service (IRS) that I am subject to backup
withholding as a result of a failure to report all interest or dividends, or the
IRS has notified me that I am no longer subject to backup withholding.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a
sealed instrument as of this ___th day of ______________, 1999.
(For Co-owners, if applicable)
__________________________________ __________________________________
Investor Signature Investor signature
__________________________________ __________________________________
Print Name Print Name
***************************************************************
The foregoing subscription for Securities of Apogee Technology, Inc. is hereby
accepted.
APOGEE TECHNOLOGY, INC.
By:________________________________________
Xxxxx Xxxxxxx, President
DATE:______________________________________
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