Exhibit 99.1
SUBSCRIPTION AGREEMENT
Ladies and Gentlemen:
In Media Corporation (the "Company"), desires to sell up to 4,000,000
shares of the Company's common stock (the "Shares" or the "Common Stock"), each
Shares, a Unit (collectively, the "Units") at a price of $1.00 per Unit. The
undersigned ("Subscriber") desires to purchase the number of Units set forth on
the signature page of this Agreement (the "Agreement"). Accordingly, the Company
and Subscriber agree as follows:
1. SALE AND PURCHASE. Subject to the terms and conditions set forth in this
Agreement, Subscriber hereby tenders the amount set forth on the signature page
of this Agreement for the purchase of the number of Units set forth on said
signature page.
2. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS OF SUBSCRIBER. In connection
with this subscription, Subscriber hereby makes the following representations,
warranties, and agreements and confirms the following understandings, each of
which are made or confirmed, as the case may be, with respect to Units
subscribed for herein:
(a) INVESTMENT PURPOSE. Subscriber is acquiring Shares for Subscriber's own
account and for investment purposes only.
(b) REVIEW AND EVALUATION OF INFORMATION REGARDING THE COMPANY.
(i) Subscriber is familiar with the Company's financial condition and
proposed operations. Without limiting the foregoing, the Subscriber acknowledges
that the undersigned has reviewed the Corporate documents regarding the Company,
its public filings on, and the terms of this Offering.
(ii) In addition to the foregoing, Subscriber acknowledges that Subscriber
has conducted, or has been afforded the opportunity to conduct, an investigation
of the Company and has been offered the opportunity to ask representatives of
the Company questions about the Company's financial condition and proposed
business and that Subscriber has obtained such available information as
Subscriber has requested, to the extent Subscriber has deemed necessary, to
permit Subscriber to fully evaluate the merits and risks of an investment in the
Company. Representatives of the Company have answered all inquiries that
Subscriber has put to them concerning the Company and its activities, and the
offering and sale of the Units.
(c) RISKS. Subscriber recognizes that the purchase of Units involves a high
degree of risk and is suitable only for persons of adequate financial means who
have no need for liquidity in this investment in that (i) Subscriber may not be
able to liquidate the investment in the event of an emergency; (ii)
transferability is limited; and (iii) in the event of a disposition, Subscriber
could sustain a complete loss of the entire investment.
(d) ACCREDITED INVESTOR STATUS. Subscriber represents that Subscriber is an
"accredited investor" as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, amended (the "Securities Act").
Specifically, the Subscriber is (check appropriate items):
_____(i) A bank, savings and loan association or other similar institution
(as defined in Sections 3(a)(2) and 3(a)(5)(A) of the Securities
Act);
_____(ii) A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended;
_____(iii) An insurance company (as defined in Section 2(13) of the Securities
Act);
_____(iv) An investment company registered under the Investment Company Act
of 1940 (the "Investment Company Act");
_____(v) A Small Business Investment Company licensed by the U.S. Small
Business Administration under Sections 301(c) or (d) of the Small
Business Investment Act of 1958;
_____(vi) Any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
subdivisions for the benefit to its employees, which plan has total
assets in excess of $5,000,000;
_____(vii) 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 is either a bank, savings and loan association,
insurance company or registered investment adviser;
_____(viii) An employee benefit plan within the meaning of ERISA having total
assets in excess of $5,000,000;
_____(ix) A self-directed employee benefit plan within the meaning of ERISA,
with investment decisions made solely by persons who are accredited
investors as defined in Rule 501(a) of Regulation D;
_____(x) A business development company (as defined in Section 2(a)(48) of
the Investment Company Act) or a private business development
company (as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940);
_____(xi) A Corporation, partnership, Massachusetts or similar business
trust, or organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (tax exempt
organization), not formed for the specific purpose of acquiring the
Shares having total assets in excess of $5,000,000;
_____(xii) Any executive officer or director of the Company;
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_____(xiii) An individual having an individual net worth or a joint net worth
with spouse at the time of purchase in excess of $1,000,000;
_____(xiv) An individual whose net income was in excess of $200,000 in each of
the two most recent years, or whose joint income with spouse was in
excess of $300,000 in each of those years, and who reasonably
expects his net income to reach such level in the current year;
_____(xv) A trust with total assets in excess of $5,000,000 not formed for
the specific purpose of acquiring the Shares whose purchase is
directed by a sophisticated person (i.e., person who has such
knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of any securities);
or
_____(xvi) Any entity in which all of the entity owners are "accredited
investors."
(e) SUBSCRIBER'S FINANCIAL EXPERIENCE. Subscriber is sufficiently
experienced in financial and business matters to be capable of evaluating the
merits and risks of an investment in the Company or, if he or she has utilized
the services of a purchaser representative, together with such representative,
are sufficiently experienced in financial and business matter to be capable of
evaluating the merits and risks of an investment in the Company.
(f) SUITABILITY OF INVESTMENT. Subscriber has evaluated the merits and
risks of Subscriber's proposed investment in the Company, including those risks
particular to Subscriber's situation, and has determined that this investment is
suitable for Subscriber. Subscriber has adequate financial resources for an
investment of this character, and at this time Subscriber can bear a complete
loss of Subscriber's investment. Further, Subscriber will continue to have,
after making an investment in the Company, adequate means of providing for
Subscriber's current needs, the needs of those dependent on Subscriber, and
possible personal contingencies. Subscriber specifically represents that he or
she has a net worth at least five times greater than the investment made herein.
(g) EXEMPT OFFERING. Subscriber understands that the sale of Units is not
being registered on the basis that this issuance is exempt from registration
under the Securities Act, and the applicable state securities laws, and the
rules and regulations promulgated thereunder, and that reliance on such
exemptions is predicated, in part, on Subscriber's representations and
warranties contained in this Agreement.
(h) LIMITATIONS ON DISPOSITION. Subscriber understands that there are
substantial restrictions on the transferability of the Shares pursuant to the
Securities Act; the Shares will not be, and, except as provided in Section 4
herein, Subscriber has no right to require that the Shares be registered under
the Securities Act; and, accordingly, Subscriber may have to hold the Shares for
an indefinite period of time until the Shares have been registered by the
Company or are subject to an exemption from registration. Subscriber represents
that Subscriber can afford to hold the Shares for an indefinite period of time.
Subscriber further understands that an opinion of counsel and other documents
may be required to transfer the Shares. Subscriber acknowledges that the Shares
shall bear the following, or a substantially similar, legend:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
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ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED
OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
OR (2) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S,
OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT."
(i) ABSENCE OF OFFICIAL EVALUATION. Subscriber understands that no federal
or state agency has made any finding or determination as to the fairness of the
terms of an investment in the Company, or any recommendation for or endorsement
of the Shares offered hereby.
(j) ADDITIONAL FINANCING. Subscriber further acknowledges that nothing
hereunder shall preclude the Company from seeking and/or procuring additional
equity and/or debt financing.
(k) NONRELIANCE. Subscriber is not relying on the Company or any
representation contained herein or in the documents referred to herein with
respect to the tax and economic effect of Subscriber's investment in the
Company.
(l) ACCEPTANCE. Subscriber acknowledges that the Company shall, in its sole
discretion, have the right to accept or reject this subscription, in whole or in
part, for any reason or for no reason. If Subscriber's subscription is accepted
by the Company, Subscriber shall, and Subscriber hereby elects to, execute any
and all further documents necessary in the opinion of the Company to complete
his subscription and become a shareholder of the Company.
(m) AUTHORITY TO ENTER INTO AGREEMENT. Subscriber has the full right,
power, and authority to execute and deliver this Agreement and perform
Subscriber's obligations hereunder.
(n) ENTITY AS A SUBSCRIBER. If Subscriber is a Corporation, partnership,
trust, or other entity, (i) Subscriber is authorized and qualified to become a
shareholder of, and is authorized to, make its investment in the Company; (ii)
Subscriber has not been formed for the purpose of acquiring an interest in the
Company; (iii) Subscriber has not been in existence for less than 90 days prior
to the date hereof; and (iv) the person signing this Agreement on behalf of such
entity has been duly authorized by such entity to do so.
(o) PROHIBITIONS ON CANCELLATION, TERMINATION, REVOCATION, TRANSFERABILITY,
AND ASSIGNMENT. Subscriber hereby acknowledges and agrees that, except as may be
specifically provided herein or by applicable law, Subscriber is not entitled to
cancel, terminate, or revoke this Agreement, and this Agreement shall survive
Subscriber's death or disability or any assignment of Shares. Subscriber further
agrees that Subscriber may not transfer or assign Subscriber's rights under this
Agreement, and Subscriber understands that, if Subscriber's subscription is
accepted, the transferability of Shares will be restricted.
(p) OBLIGATION. This Agreement constitutes a valid and legally binding
obligation of Subscriber and neither the execution of this Agreement nor the
consummation of the transactions contemplated herein will constitute a violation
of or default under, or conflict with, any judgment, decree, statutes or
regulation of any governmental authority applicable to Subscriber, or any
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contract, commitment, agreement, or restriction of any kind to which Subscriber
is a party or by which Subscriber's assets are bound. The execution and delivery
of this Agreement does not, and the consummation of the transactions described
herein will not, violate applicable laws, or any mortgage, lien, agreement,
indenture, lease or understanding (whether oral or written) of any kind
outstanding relative to Subscriber.
(q) REQUIRED APPROVALS. No approval, authorization, consent, order, or
other action of, or filing with, any person, firm or Corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery of this Agreement by Subscriber or the purchase
of the Units.
(r) NO GENERAL SOLICITATION. Subscriber is not subscribing for Units
because of or following any advertisement, article, notice, or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation or a subscription by a person other than an authorized
representative of the Company.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. In connection
with this subscription, the Company makes the following representations,
warranties and agreements and confirms the following understandings:
(a) COMPANY'S GOOD STANDING. The Company is a Corporation organized and
validly existing under the laws of the State of Nevada, and it has all corporate
authority and power to conduct its business and to own its properties.
(b) LEGAL AND OTHER PROCEEDINGS. Neither the Company, nor any of its
affiliates or its executive officers or directors (in their capacity as
executive officers or directors), is a party to any pending or, to the best
knowledge of the Company, threatened, or unasserted but considered by it to be
probable of assertion, claim, action, suit, investigation, arbitration or
proceeding, or is subject to any order, judgment or decree that is reasonably
expected by management of the Company to have, either individually or in the
aggregate, a material adverse effect on the condition (financial or otherwise),
earnings or results of operations of the Company. The Company is not, as of the
date hereof, a party to or subject to any enforcement action instituted by, or
any agreement or memorandum of understanding with, any federal or state
regulatory authority restricting its operations or requiring that actions be
taken, and no such regulatory authority has threatened any such action,
memorandum or order against the Company and the Company has not received any
report of examination from any federal or state regulatory agency which requires
that the Company address any problem or take any action which has not already
been addressed or taken in a manner satisfactory to the regulatory agency.
(c) AUTHORIZATION; CONFLICT; VALID AND BINDING OBLIGATION. This Agreement
and the transactions contemplated herein have been duly and validly authorized
by all requisite Corporate action of the Company. The Company has full right,
power and capacity to execute, deliver and perform its obligations under this
Agreement. No governmental license, permit or authorization and no registration
or filings with any court, governmental authority or regulatory agency is
required in connection with the Company's execution, delivery and/or performance
of this Agreement, other than any filings required by applicable federal and
state securities laws. The execution, delivery and performance of this
Agreement, the consummation of the transactions herein contemplated and the
compliance with the terms of this Agreement by the Company will not violate or
conflict with any provision of the Articles of Incorporation, as amended or
By-laws of the Company, or any agreement, instrument, law or regulation to which
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the Company is a party or by which the Company may be bound. This Agreement,
upon execution and delivery by the Company, will represent the valid and binding
obligation of the Company enforceable in accordance with its terms.
3. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS AND ACKNOWLEDGMENTS.
The representations, warranties, agreements, and acknowledgments of the Company
and Subscriber shall survive the offering and purchase of Units.
4. INDEMNIFICATION OF THE COMPANY. Subscriber agrees to indemnify and hold
harmless the Company against and in respect of any and all loss, liability,
claim, damage, deficiency, and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses whatsoever (including, but not
limited to, attorneys' fees reasonably incurred in investigating, preparing, or
defending against any litigation commenced or threatened or any claim whatsoever
through all appeals) arising out of or based upon any false representation or
warranty or breach or failure by Subscriber to comply with any covenant or
agreement made by it herein or in any other document furnished by it in
connection with this subscription.
5. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior negotiations, letters and
understandings relating to the subject matter hereof.
(b) AMENDMENTS. This Agreement may not be amended, supplemented, or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement, or
modification is sought.
(c) NOTICES. Any notice, demand, or other communication that any party
hereto may be required, or may elect, to give to anyone interested hereunder
shall be deemed given on the date initially received if delivered by facsimile
transmission followed by registered or certified mail confirmation; on the date
delivered by an overnight courier service; on the third business day after it is
mailed if mailed by registered or certified mail (return receipt requested, with
postage and other fees prepaid) addressed to such addresses as provided herein.
(d) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to Subscriber's benefit and the
benefit of Subscriber's heirs, executors, administrators, successors, legal
representatives, and permitted assigns. If the undersigned is more than one
person, the obligation of the undersigned shall be joint and several and the
agreements, representations, warranties, and acknowledgements herein contained
shall be deemed to be made by and be binding upon each such person and his
heirs, executors, successors, administrators, legal representatives, and
permitted assigns.
(e) CHOICE OF LAW; VENUE. This Agreement will be interpreted, construed,
and enforced in accordance with the laws of the State of Nevada, without giving
effect to the application of the principles pertaining to conflicts of laws. Any
proceeding arising between the parties in any manner pertaining or relating to
this Agreement shall, to the extent permitted by law, be held in the State of
Nevada.
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(f) EFFECT OF WAIVER. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
(g) SEVERABILITY. The invalidity, illegality, or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality, or unenforceability of a portion of any provision of
this Agreement affect the balance of such provision. In the event that any one
or more of the provisions contained in this Agreement or any portion thereof
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, this Agreement shall be reformed, construed, and enforced as if such
invalid, illegal, or unenforceable provision had never been contained herein.
(h) ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce this Agreement, the successful party will be awarded
reasonable attorneys' fees at all trial and appellate levels, expenses, and
costs.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
(j) FURTHER ASSURANCES. The parties hereto will execute and deliver such
further instruments and do such further acts and things as may be reasonably
required to carry out the intent and purposes of this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
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SUBSCRIPTION AGREEMENT
SIGNATURE PAGE FOR INDIVIDUALS
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the ____ day of ___________________, 2010.
Total Purchase Price Units: $______
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(Signature of Subscriber) (Signature of Spouse or Joint Tenant,
If Any)
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(Print Name of Subscriber) (Print Name of Spouse or Joint Tenant,
If Any)
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(Address) (Address)
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(Telephone Number) (Telephone Number)
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(Social Security Number) (Social Security Number)
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(Date) (Date)
Note: If two purchasers are signing, please check the manner in which the
ownership is to be legally held (the indicated manner shall be construed as if
written out in full accordance with applicable laws or regulations):
_________ JT TEN: As joint tenants with right of survivorship and not
as tenants in common.
_________ TEN COM: As tenants in common.
_________ TENENT: As tenants by the entireties.
The undersigned hereby tenders to____________________, the amount above
indicating the number of Units subscribed for. Checks should be made payable
to___________________. Wire transfer information is available upon request.
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SUBSCRIPTION AGREEMENT
SIGNATURE PAGE FOR CORPORATIONS, TRUSTS, PARTNERSHIPS
OR RETIREMENT PLANS
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the ____ day of ___________________, 2010.
Total Purchase Price Units: $______
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(Signature of Subscriber)
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(Print Name of Subscriber)
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(Address)
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(Telephone Number)
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(Social Security Number)
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(Date)
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(Federal Employer Identification Number
or Other Tax Identification Number)
The undersigned hereby tenders to____________________, the amount above
indicating the number of Units subscribed for. Checks should be made payable
to___________________. Wire transfer information is available upon request.
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APPROVED AND ACCEPTED in accordance with the terms of this Subscription
Agreement on this ____ day of _________________, 2010.
By:
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Name
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Title
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