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EXHIBIT 10.17
XXXXXXX.XXX, INC.
SUBSCRIPTION AGREEMENT
To: xxxxxxx.xxx, inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Dear Sir:
The undersigned (the "Subscriber") hereby tenders Subscriber's
subscription to xxxxxxx.xxx, inc., a Georgia corporation, on the terms and
conditions hereinafter set forth:
1. SUBSCRIPTION FOR UNITS
Subscriber hereby irrevocably subscribes for and agrees to purchase
investment units consisting of a Series 1999 Convertible Note ("Note") with a
Stock Purchase Warrant ("Warrant"). In that regard, Subscriber irrevocably
subscribes for and agrees to purchase the amount of the Note indicated below
(with a minimum investment of $500,000 for entities and $50,000 for
individuals):
Amount of Note subscribed for: $
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Subscriber acknowledges that Subscriber will receive, along with the referenced
Note, a Warrant for the number of shares of xxxxxxx.xxx's common stock as set
forth in the Warrant provided to Subscriber along with this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER
In order to induce xxxxxxx.xxx to accept this subscription, Subscriber
hereby represents and warrants as follows:
(A) If Subscriber is an entity and consequently is subscribing for
at least $500,000 of the units, Subscriber represents that Subscriber is
purchasing the units in the ordinary course of its business for Subscriber's
own account, with the intention of holding the units for investment, with no
arrangement with any person to resell or otherwise participate directly or
indirectly in a distribution of the units or any part thereof.
(B) Subscriber understands that no federal or state agency or
securities exchange has recommended or endorsed the purchase of the units.
(C) Subscriber recognizes that, prior to this offer, there has been
no public market for the units and that, after this offering, there will be no
public market for the Note or the Warrant or the common stock into which they
are convertible or exercisable, as applicable.
(D) The information heretofore provided to xxxxxxx.xxx by Subscriber
as to Subscriber is true and correct as of the date hereof, and Subscriber
agrees to advise xxxxxxx.xxx prior to its acceptance of this
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subscription of any material change in any such information. Subscriber agrees
that the representations and warranties of Subscriber set forth in this Section
2 shall survive the acceptance of this subscription, in the event that such
subscription is accepted.
(E) Subscriber is either (a) an entity with its principal executive
office set forth on the signature page to this Agreement or (b) an individual
with his or her principal residence set forth on the signature page to this
Agreement, and Subscriber has no present intent of changing such location or
residence, as applicable. If the location of Subscriber's principal executive
office or residence, as applicable, changes to a state other than the state
indicated by Subscriber before Subscriber purchases the units and before the
units are delivered to Subscriber, Subscriber covenants and agrees to properly
notify xxxxxxx.xxx.
(F) When executed by Subscriber, this Subscription Agreement
(including these representations and warranties) will constitute a valid and
binding obligation of Subscriber, enforceable in accordance with its terms.
(G) Subscriber understands and agrees that the subscription set
forth herein will not be binding upon xxxxxxx.xxx until it is accepted by
xxxxxxx.xxx in writing, that acceptance of any or all subscriptions is within
the sole discretion of xxxxxxx.xxx and that xxxxxxx.xxx may choose to accept or
reject any or all subscriptions, including this subscription, for any reason or
no reason, in its sole discretion.
3. GOVERNING LAW AND INTERPRETATION
This Subscription Agreement shall be construed in accordance with and
governed by the laws of the State of Georgia, without regard to the principles
of conflict of law.
4. NOTICES
The address of record for Subscriber maintained by xxxxxxx.xxx for all
purposes of this Subscription Agreement and the units shall be that address set
forth beneath Subscriber's signature on this Subscription Agreement. Subscriber
may change its address of record only by notifying xxxxxxx.xxx in the manner
prescribed herein. Any notice under this Agreement or with respect to the units
shall be in writing and shall be deemed to have been sufficiently given or
served and effective for all purposes when presented personally or five days
after deposit with the United States Postal Service, by registered or certified
mail, postage pre-paid, addressed to xxxxxxx.xxx at its principal place of
business and to Subscriber at the address of record maintained by xxxxxxx.xxx
with respect to Subscriber.
5. COUNTERPARTS
This Subscription Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Facsimile transmission
of signatures shall be deemed originals.
6. MISCELLANEOUS
(A) Notwithstanding any of the representations, warranties,
acknowledgments, or agreements made herein by Subscriber, Subscriber does not
hereby or in any other manner waive any rights granted to Subscriber under
applicable federal or state securities laws.
(B) Words importing the singular number hereunder shall include the
plural number and vice versa, and any pronoun used herein shall be deemed to
cover all genders.
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(C) SUBSCRIBER AGREES THAT SUBSCRIBER MAY NOT CANCEL, TERMINATE, OR
REVOKE THIS SUBSCRIPTION AGREEMENT (EXCEPT AS OTHERWISE SPECIFICALLY PERMITTED
UNDER APPLICABLE SECURITIES LAWS), AND THAT THIS SUBSCRIPTION AGREEMENT SHALL
SURVIVE THE DEATH OR DISSOLUTION OF SUBSCRIBER AND SHALL BE BINDING UPON
SUBSCRIBER'S HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this day of __________ , ____.
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NAME OF SUBSCRIBER
By:
Name:
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Title:
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Address of Subscriber:
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ACCEPTED AS OF:
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xxxxxxx.xxx, inc.
By:
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Name:
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Title:
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