EXHIBIT 10.40
SUBSCRIPTION AGREEMENT
THE INVESTOR IS REQUIRED TO XXXX BOXES TO INDICATE WHICH REPRESENTATIONS AND
WARRANTIES IT IS MAKING UNDER PART 1 HEREOF.
Ladies and Gentlemen:
By executing this Subscription Agreement, the undersigned (the
"Investor") hereby irrevocably subscribes for the number of series A preferred
shares (the "Series A Preferred Shares") of Oasis Group, Inc., a private
Georgia Corporation, (the "Company") listed on the signature page hereto.
As consideration for the Series A Preferred Shares the Subscriber has
agreed to assign those certain contracts for the purchase and sale of the real
estate described in the attached Exhibit A and referred to as Xxxxx 00, Xxxxxx,
Xxxxxxxx, Xxxxxxxxx-Xxxx, Plum Creek, Xxx Creek, Xxxxx Bar and I-75 I-40.
Pursuant to this agreement, the Subscriber will be entitled to receive a
portion of the total shares set forth on the signature page hereto upon the
closing of each property referred to above at the following rate:
CLOSING % VALUATION SHARES ACCRUED
-------------- ----------- --------------
Route 66 7.01% 560,573
Athens 21.02% 1,681,719
Townsend 2.34% 186,858
Wisconsin-Dell 26.46% 2,117,098
Plum Creek 1.71% 137,029
Xxx Creek 2.92% 233,572
Xxxxx Bar 33.09% 2,647,150
I75 & I40 5.45% 436,001
This Subscription Agreement shall not be valid and binding on the
Company unless and until accepted by the Company.
The Investor understands that the Shares may be acquired hereunder
only by investors who are able to make all required representations and
warranties under Part I and Part II below.
REPRESENTATIONS AND WARRANTIES
The Investor makes representations and warranties in this Subscription
Agreement in order to permit the Company to determine the suitability of the
Shares as an investment for the Investor and to determine the availability of
the exemptions relied upon by the Company from registration under Section 5 of
the United States Securities Act of 1933, as amended, and the regulations
promulgated thereunder (the "Securities Act").
PART I: REPRESENTATIONS AS TO ACCREDITED INVESTOR STATUS
TO ESTABLISH THAT THE INVESTOR IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(a) PROMULGATED UNDER THE SECURITIES ACT, THE INVESTOR MUST XXXX AT
LEAST ONE BOX BELOW, THEREBY MAKING THE REPRESENTATION SET FORTH BESIDE THE
MARKED BOX.
[ ] The Investor is a natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of the Investor's
purchase exceeds $1,000,000.
[ ] The Investor is 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.
[ ] The Investor is a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or any other institution as
defined in Section 3(a)(5)(A) of the Securities Act.
[ ] The Investor is a broker dealer registered pursuant to Section 15 of
the United States Securities Exchange Act of 1934, as amended.
[ ] The Investor is an insurance company as defined in Section(2)(13) of
the Securities Act.
[ ] The Investor is an investment company registered under the Investment
Company Act or a business development company as defined in Section
2(a)(48) of that Act.
[ ] The Investor is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
U.S. Small Business Investment Act of 1958, as amended.
[ ] The Investor is a plan established and maintained by a state within
the United States, one or more political subdivisions of such a state,
or any agency or instrumentality of such a state or its political
subdivisions, for the benefit of its employees, with total assets in
excess of $5,000,000.
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[ ] The Investor is an employee benefit plan within the meaning of the
U.S. employee Retirement Income Security Act of 1974, as amended
("ERISA"), (i) the investment decision for which 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 advisor or (ii) which has total assets in excess of
$5,000,000 or (iii) which is a self-directed plan with investment
decisions made solely by persons that are Accredited Investors.
[ ] The Investor is a private business development company as defined in
Section 202(a)(22) of the U.S. Investment Advisers Act of 1940.
[ ] The Investor is an organization that is described in Section 501(c)(3)
of the U.S. Internal Revenue Code of 1986, as amended, a corporation,
a Massachusetts or similar business trust, or a partnership, in any
case that was not formed for the specific purpose of acquiring the
Shares, with total assets in excess of $5,000,000.
[X] The Investor is a director or executive officer (as defined in Rule
502(f) promulgated under the Securities Act) of the Company.
[ ] The Investor is a trust with total assets of $5,000,000, not formed
for the specific purpose of acquiring the Shares, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii)
promulgated under the Securities Act.
[ ] The Investor is an entity in which all of the equity owners are
Accredited Investors.
PART II. ADDITIONAL REPRESENTATIONS
THE INVESTOR, BY SIGNING THIS SUBSCRIPTION AGREEMENT, WILL BE DEEMED TO HAVE
MADE ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN PARAGRAPHS 1 THROUGH 10
BELOW.
1. The Investor acknowledges that: (a) the Investor has been
provided with information concerning the company and has had an opportunity to
ask questions and to obtain such additional information concerning the Company
as the Investor deems necessary in connection with the Investor's acquisition
of interests in the Company; (b) information with respect to existing business
and historical operating results of the Company and estimates and projections
as to future operations involve significant subjective judgment and analysis,
which may or may not be correct; (c) the Company cannot, and does not, make any
representation or warranty as to the accuracy of the information concerning the
past or future results of the Company.
2. The Investor has sought such accounting, legal and tax advice
as the Investor considered necessary to make an informed investment decision.
The Investor is experienced in investment and business matters (or has been
advised by an investment advisor who is so experienced), and is aware of and
can afford the risks of making such an investment, including the risk of losing
the Investor's entire investment.
3. The Shares subscribed for herein will be acquired solely by
and for the account of the Investor for investment and are not being purchased
for resale or distribution. The Investor has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to such
person or anyone else any of the Shares (or any portion thereof or interest
therein) for which the Investor hereby subscribes, and the investor has no
present plans or intentions to enter into any such contract, undertaking,
agreement or arrangement. The financial condition of the Investor is such that
the Investor has no need for liquidity with respect to the Investor's
investment in the Shares and no need to dispose of any portion of the Shares to
satisfy any existing or contemplated undertaking or
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indebtedness; and the overall commitment by the Investor to investments which
are not readily marketable is not disproportionate to the Investor's net worth
and will not become excessive as a result of investment in the Shares.
4. The Investor understands that the Company has no obligation
or intention to register the Shares under any U.S. federal or state securities
act or law or the securities act or law of any other jurisdiction.
5. The Investor understands, represents, warrants and agrees
that the Investor's Shares are not transferable, that the Investor will not,
directly or indirectly, sell, assign, convey, hypothecate or otherwise transfer
the Investor's Shares (or any portion thereof or interest therein) except in
accordance with Securities Act of 1933 and other applicable state securities
laws and that violation of the foregoing will cause such transfer to be void
and need not be recognized by the Company.
6. The Investor warrants that the Investor has knowledge and
experience in financial, investment and business matters and that the Investor
is capable of evaluating the merits and risks of an investment in the Shares.
7. The Investor has relied solely upon his own independent
investigations in making the decision to purchase the Shares subscribed for
herein.
8. The Investor expressly acknowledges that:
(a) No federal, state or other governmental agency has
passed upon the adequacy or accuracy or the
information concerning the Company or made any
finding or determination as to the fairness of the
investment, or any recommendation or endorsement of
the Shares as an investment.
(b) The Investor is not dependent upon a current cash
return with respect to the Investor's investment in
the Shares, and the Investor understands that
distributions are not required to be made and that
returns on an investment in the Shares may not be
realized for years.
(c) The Shares are being offered and sold to prospective
purchasers directly, and neither the Company nor any
person acting on behalf of the Company has offered
to sell the Shares to the Investor by means of any
form of general solicitation or advertising, such as
media advertising or public seminars.
9. The Investor (i) if an individual, is at least 21 years of
age; (ii) if a partnership, is comprised of partners all of whom are at least
21 years of age; and (iii) if a corporation, partnership, trust or other like
entity, is authorized and otherwise duly qualified to purchase and hold the
Shares. The Investor has duly authorized, executed and delivered this
Subscription Agreement and understands that the Company is not obligated to
accept this Subscription Agreement and that this Subscription shall be valid
and binding on the Company only upon acceptance by the Company. The Investor
understands that if this Subscription Agreement is accepted and executed by the
Company, the Investor will constitute a valid and legally binding obligation of
the Investor and the Company.
10. The Investor certifies under penalties of perjury that (i)
the Investor's taxpayer identification number (social security number for an
individual Investor) as set forth on the signature page hereof is correct; (ii)
the Investor's home address (in the case of an individual) or office address
(in the case of an entity) as set forth on the signature page hereof is
correct; and (iii) the Investor is not subject to backup withholding either
because the Investor has not been notified by the Internal Revenue Service
("IRS") that the Investor is subject to backup withholding as a result of a
failure to report all interest or dividends, or because the Investor has been
notified by the IRS that the Investor is no longer subject to backup
withholding.
MISCELLANEOUS
1. Successors and Assigns. Upon acceptance by the Company, this
Subscription Agreement, and all of the obligations of the Investor hereunder,
and all of the representations and warranties by the Investor herein, shall be
binding upon the heirs, executors, administrators, personal representatives,
successors and assigns of the Investor.
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2. Governing Law. This Subscription Agreement shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Georgia.
3. Indemnification. The Investor agrees to indemnify the
Company, its officers and managers for any and all claims or losses (including
attorneys' fees) incurred by them as a result of the incorrectness of the
Investor's representations and warranties contained herein, including but not
limited to, claims arising under federal and state securities laws and common
law claims.
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SIGNATURE PAGE TO
SERIES A PREFERRED STOCK SUBSCRIPTION AGREEMENT FOR
XXXXXX X. XXXXX
Executed at Atlanta , GA this 27th day
---------------------------- ---------------- ----------
CITY STATE
of June , 2002.
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THE INVESTOR:
Xxxxxx X. Xxxxx
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Please print or type legal name of Investor
as it should appear on stock certificate
and in stockholder records
By: /s/ Xxxxxx X. Xxxxx
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Sign here
Its:
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If signatory is executing on behalf of an
entity, please indicate signatory's title
or office with such entity
Number of Shares of Series A Preferred
Stock Subscribed for: 8,000,000
Total Consideration: Real Property Contract
referred to in Exhibit A.
Taxpayer I.D. Number or Social Security
Number:
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Print or type address, telephone number and
fax number preferred for stockholder
communications:
Address:
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Telephone:
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Fax:
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Accepted this 27th day of June , 2002
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By: /s/ Xxxxx X. Xxxxx
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Title: Chief Financial Officer
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* If the Investor is a corporation, trust, partnership, or other entity,
please attach a copy of the resolutions, trust instrument, partnership
agreement or similar document (or in lieu thereof, an opinion of counsel)
showing the corporation, trust, partnership or other entity has authority to
purchase the Shares and showing that the signatory above may act on its behalf
in making this investment.
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EXHIBIT A
Assignment and agreement regarding real estate referred to as Route 66.
Assignment and agreement regarding real estate referred to as Athens.
Assignment and agreement regarding real estate referred to as Xxxxxxxx.
Assignment and agreement regarding real estate referred to as
Wisconsin-Dell.
Assignment and agreement regarding real estate referred to as Plum
Creek.
Assignment and agreement regarding real estate referred to as Xxx
Creek.
Assignment and agreement regarding real estate referred to as Xxxxx
Bar.
Assignment and agreement regarding real estate referred to as I75 I40.
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