SUBSCRIPTION AGREEMENT
EXHIBIT
10.21
Petals
Decorative Accents, LLC
Executive
Pavilion
00
Xxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Xxxxxxx Xxxxxx, Chief Financial Officer
Re:
Purchase
of Nonnegotiable Unsecured Promissory Notes
Gentlemen:
1. (a) The
undersigned hereby subscribes for and offers to purchase from Petals Decorative
Accents, LLC, a Delaware limited liability company (the “Company”),
a
nonnegotiable unsecured promissory note of the Company in the form attached
hereto as Exhibit
A
in the
principal amount at maturity of $[1.4
x
PURCHASE PRICE]
(the
“Unsecured
Note”)
for
the purchase price of $_________ (the “Purchase
Price”).
The
Unsecured Note is one of a series of duly authorized and issued notes of the
Company designated as its 2006 Nonnegotiable Unsecured Promissory Notes (the
“2006
Notes”).
The
undersigned hereby agrees to pay the Company an amount equal to the Purchase
Price of the Unsecured Note subscribed for by the undersigned at the closing
of
the purchase of the Unsecured Notes (the “Closing”),
which
Closing will occur only if and when the Company accepts this Subscription
Agreement.
(b) At
the
Closing, the undersigned will tender payment to the Company, either in the
form
of a check or via a wire transfer according to the instructions attached hereto
as Exhibit
B,
in an
amount equal to the Purchase Price of the Unsecured Note subscribed for by
the
undersigned. In the event that this subscription is not accepted by the Company
or the subscription offering of the 2006 Notes is withdrawn or otherwise does
not close, the Company shall cause such payment to be returned to the
undersigned, without deduction and without interest. In the event the Company
accepts this subscription only in part, the Company shall cause to be returned
to the undersigned the portion of the payment tendered herewith by the
undersigned but not accepted on behalf of the Company, without deduction and
without interest.
2. To
induce
the Company to accept this subscription, the undersigned hereby agrees and
covenants that:
(a) Within
five (5) days after receipt of a written request from the Company, the
undersigned will provide such information and execute and deliver such documents
as the Company may reasonably request to comply with all laws and ordinances
to
which the Company may be subject, including, without limitation, the securities
laws of the United States of America or any other jurisdiction.
(b) The
Unsecured Note is one of a series of promissory notes of like tenor and the
Company has entered into, and from time to time may enter into, separate
subscription
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agreements
(the “Other
Subscription Agreements”)
with
other investors for the sale of 2006 Notes. The sale of such other notes to
such
other investors and the sale of the Unsecured Note shall be separate sales,
and
this Subscription Agreement and the Other Subscription Agreements shall be
separate agreements.
3. To
induce
the Company to accept this subscription, the undersigned hereby represents,
warrants and agrees that:
(a) The
undersigned, if an individual, is over 21 years of age, the address set forth
on
the signature page hereto is the true jurisdiction of citizenship, residence
and
domicile of the undersigned, and the undersigned has no present intention of
becoming a citizen, resident or domiciliary of any other state or jurisdiction.
If a corporation, trust, partnership or other entity, the undersigned was
organized or incorporated under the laws of the jurisdiction of its principal
place of business (unless otherwise noted below) and has its principal place
of
business at the address set forth below.
(b) The
undersigned has had an opportunity to ask questions of and receive answers
from
the Company concerning the Company and all other matters pertinent to an
investment in the Company and the purchase of the Unsecured Note, and all such
questions have been answered to the full satisfaction of the undersigned.
(c) The
undersigned understands that the Unsecured Notes have not been registered under
the Securities Act of 1933, as amended (the “Securities
Act”),
or
under any state blue sky or securities laws and that the Unsecured Notes have
not been approved or disapproved by the Securities and Exchange Commission
or by
any other federal or state authority or agency, and that no such authority
or
agency has passed on the accuracy or adequacy of any document delivered to
the
undersigned.
(d) The
undersigned is acquiring the Unsecured Notes for the undersigned’s own account,
for investment purposes only, and not for, with a view to or in connection
with
any resale or other distribution thereof, in whole or in part.
(e) The
undersigned has carefully considered and, to the extent the undersigned believes
appropriate, has discussed with the undersigned’s professional legal, tax and
financial advisors the suitability of an investment in the Company for the
undersigned’s particular tax and financial situation and has determined that the
Unsecured Note is a suitable investment for the undersigned.
(f) The
undersigned is an “accredited investor,” as such term is defined in Rule 501
promulgated under the Securities Act.
(g) The
undersigned acknowledges Unsecured Note constitutes a “restricted security”
within the meaning of Rule 144 promulgated under the Securities Act. There
are
and will be substantial restrictions on the transferability of the Unsecured
Note, there will be no public market for the Unsecured Note; Rule 144 is not
now
available to provide an exemption for resale of the Unsecured Note because
the
Company is not required to file, and does not file, reports under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
The
Company may become a reporting entity at some future date, but no assurance
can
be given that
-2-
the
Company will do so; and, accordingly, it may not be possible for the undersigned
to liquidate the undersigned’s investment in the Unsecured Note when the
undersigned wants to do so.
(h) The
undersigned has reviewed and carefully considered the potential risks relating
to the Company and a purchase of the Note, including, without limitation, all
of
the risks set forth in the “Confidential Private Placement Memorandum” of the
Company dated April __, 2006, and all updates thereto (the “PPM”).
The
undersigned is familiar with the general risks of investment in companies with
financial results such as those of the Company. No representations or warranties
of any kind have been made to the undersigned by the Company or any director,
officer, agent, employee or affiliate thereof in connection with this
Subscription Agreement and the undersigned’s purchase of the Unsecured Note.
(i) The
undersigned acknowledges that the Unsecured Note is a speculative investment
and
involves substantial risks. The undersigned is able to bear the full economic
risk of an investment in the Unsecured Note; to hold the Unsecured Note
indefinitely; and to afford a complete loss of the undersigned’s entire
investment in the Unsecured Note.
(j) The
execution and delivery of this Subscription Agreement and any other instruments
executed and delivered on behalf of the undersigned have been duly authorized
and are binding agreements as to the undersigned.
4. The
undersigned acknowledges that the undersigned understands the meaning and legal
consequences of the representations and warranties contained in paragraph
0
hereof,
and that the Company intends to rely upon them. The undersigned hereby agrees
to
indemnify and hold harmless the Company and each director, officer or agent
thereof from and against any and all losses, damages, liabilities and expenses
arising out of or in connection with any breach of, or inaccuracy in, any
representation or warranty of the undersigned, whether contained in this
Subscription Agreement or otherwise.
5. It
is
understood that the Company will have the right to terminate or withdraw this
Subscription Offering at any time. The undersigned also understands that there
is no aggregate minimum dollar level of accepted subscriptions required as
a
condition to the Closing. It is understood that this Subscription Agreement
is
not binding on the Company until the Company accepts it, which acceptance is
at
the sole discretion of the Company, by executing this Subscription Agreement
where indicated. The Company will have the right to reject this Subscription
Agreement, in whole or in part, and will not be obligated to allocate the notes
being sold among subscribers pro rata in the event of an over-subscription.
This
Subscription Agreement will be null and void if the Company does not accept
it.
If the Company does not accept this Subscription Agreement, any payment tendered
by the undersigned herewith will be returned to the undersigned, without
deduction and without interest, and the Company and the undersigned will have
no
further obligation to each other hereunder. If the Company accepts this
subscription only in part, the Company shall cause to be returned to the
undersigned the portion of the payment tendered by the undersigned herewith
but
not accepted on behalf of the Company, without deduction and without
interest.
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6. (a) This
Subscription Agreement is not transferable or assignable by the undersigned.
Except as otherwise provided by applicable law, this Subscription Agreement
may
not be revoked or canceled by the undersigned, unless the Company in its sole
discretion consents to such revocation or cancellation, rejects the subscription
or withdraws the Subscription Offering.
(b) The
representations, warranties, understandings and acknowledgments in this
Subscription Agreement are true and accurate as of the date hereof, shall be
true and accurate on the date of the acceptance hereof by the Company and shall
survive thereafter.
(c) All
notices or other communications to be given or made hereunder shall be in
writing and shall be delivered personally or mailed, by registered or certified
mail, return receipt requested, postage prepaid, to the undersigned or to the
Company, as the case may be, at their respective addresses set forth
herein.
(d) This
Subscription Agreement shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of Connecticut without regard
to its principles of conflicts of laws. Any dispute arising out of or relating
to this Subscription Agreement or the undersigned purchase of the Unsecured
Note
shall be filed and prosecuted in any court of competent subject matter
jurisdiction located in Connecticut. The undersigned hereby consents to the
personal jurisdiction of such courts over the undersigned, stipulates to the
convenience, fairness and efficiency of proceeding in such courts, and covenants
not to assert any objection to proceeding in such courts based on any alleged
inconvenience, unfairness of inefficiency of such courts.
(e) This
Subscription Agreement, together with the attached Exhibits, constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior or contemporaneous agreements, representations,
warranties and understandings between them with respect to such subject matter.
This Subscription Agreement may be amended only by a writing executed by the
parties hereto.
[Remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, the undersigned has executed this Subscription Agreement as
an
instrument under seal on the date set forth below.
__________________________________________
Name
of
Subscriber
___________________
Date
__________________________________________
Signature
__________________________________________
Title
(if
the subscriber is not a natural person)
Principal
Amount of Note at Maturity:
$[1.4
x
PURCHASE PRICE]
Purchase
Price: : $___________________
Please
print information below exactly as you wish it to appear in the records of
the
Company.
__________________________________________
Name
and
capacity in which subscription is made -- see next page for particular
requirements.
ADDRESS:
__________________________________________
Number
and Street
__________________________________________
City State Zip
Code
__________________________________________
Social
Security Number or other Taxpayer Identification Number
Address
for notices if different from above:
__________________________________________
Number
and Street
__________________________________________
City State Zip
Code
-5-
Additional
Execution Page -- To be completed
in
all cases except where subscriber is
an
individual acting as such solely
for
his or her own account.
Please
check to indicate form of ownership of, or organization of entity acquiring,
the
Note.
|
_____
TENANTS-IN-COMMON (Both parties must sign on preceding page.)
_____
JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
(Both
parties must sign.)
_____
COMMUNITY PROPERTY
(One
signature required if interest held in one name, i.e., managing spouse;
two signatures required if interest held in both names.)
_____
TRUST
The
name of trust, name of trustee and date trust was formed:
______________________________
Name
of Trust
______________________________
Name
of Trustee
______________________________
Date
Trust was Formed
(A
copy of the Trust Agreement
or
other authorization must be
attached
or forwarded under
separate
cover.)
|
______
CORPORATION
(A
certificate of corporate resolution authorizing signature and purchase
must be attached or sent under separate cover.)
______PARTNERSHIP
(A
copy of Certificate of Partnership or Partnership Agreement or other
evidence of authority to execute this Subscription Agreement must
be
attached or sent under separate
cover.)
|
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On
this
____
day
of
May, 2006, the Company hereby accepts the foregoing Subscription Agreement
and
the subscription described therein in the principal amount at maturity of
$[1.4
x
PURCHASE PRICE]
for the
Unsecured Note, for a purchase price of $__________.
PETALS
DECORATIVE ACCENTS, LLC
/s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Chief
Financial Officer
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EXHIBIT
A
[See
attached sheets.]
EXHIBIT
B
INSTRUCTIONS
FOR COMPLETING
SUBSCRIPTION
AGREEMENT
These
instructions are designed to provide assistance with respect to the completion
of the Subscription Agreement for the purchase of Nonnegotiable Unsecured
Promissory Notes of Petals Decorative Accents, LLC.
You
should read the Subscription Agreement and the accompanying confidential private
placement memorandum carefully.
To
subscribe, sign and date the signature page to the Subscription Agreement and
complete all information called for. Please note that any changes or crossed-out
words or numbers must be initialed.
Completed
subscription agreements should be returned to Xxxxxxx Xxxxxx, Chief Financial
Officer, Petals Decorative Accents, LLC, Executive Pavilion, 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000, prior to April __, 2006.
If
you
have any questions, please call (000)000-0000 and ask for Xxxxxxx
Xxxxxx.
