EXHIBIT 4(aa) THE TIREX CORPORATION
SUBSCRIPTION AND REGISTRATION RIGHTS
AGREEMENT
COMMON STOCK, $.001 PAR VALUE
Securities Purchase Agreement (the "Agreement"), is entered into by and
between ______________ (the "Purchaser") and The Tirex Corporation (the
"Company").
1. Purchase and Sale of Common Stock.
Upon the basis of the representations and warranties, and subject to the
terms and conditions set forth in this Agreement, the Purchaser agrees to
purchase, and the Company agrees to sell to the Purchaser _________ shares of
the common stock of the Company, $.001 par value, per share (the "Shares") at a
per share price of $0.10 (the "Purchase Price").
2. Registration Rights
The Company will file a registration statement under the Securities Act of
1933, as amended (the "Act") covering the Shares as promptly as practicable
after the expiration of all presently outstanding offers for the sale of the
Company's securities and will use its best efforts to cause such registration
statement to be declared effective by the SEC as promptly as possible.
3. Representations, Warranties and Covenants of the Purchaser
The Purchaser understands, and represents and warrants to, and agrees
with, the Company, that:
(a) The Shares have not been, and, until they are registered under the
Securities Act pursuant to Paragraph 2, above, will not be, registered under the
Securities Act or any other applicable securities law and, accordingly, may not
be offered, sold, transferred, pledged, hypothecated, or otherwise disposed of
("Transferred") unless registered under the Securities Act or unless they are
transferred in a transaction exempt from registration under the Securities Act
and any other applicable securities law.
(b) The Purchaser understands that, until the Shares are registered
under the Securities Act in accordance with Paragraph 2, above, the certificates
representing the Shares will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, IN THE ABSENCE
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OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR,
UNLESS, IN THE OPINION OF COUNSEL TO THE ISSUER, SUCH
OFFER, SALE, OR TRANSFER IS EXEMPT FROM REGISTRATION OR
IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS.
(c) The Purchaser is either an "Institutional Investor" or an
"Accredited Investor" within the meaning of Rule 501(a) under the Securities Act
(an "Accredited Investor"), and is acquiring or will acquire the Shares for the
Purchaser's own account. The Purchaser has such knowledge and experience in
financial and business matters that he or she is capable of evaluating the
merits and risks of an investment in the Shares. The Purchaser is aware that he
or she may be required to bear the economic risk of an investment in the Shares
for an indefinite period, and is able to bear such risk for an indefinite
period.
Purchaser meets at least one of the following criteria as an
"Accredited Investor" (Please check all that apply):
[ ] (a) The undersigned is a director or executive officer
of the Company;
[ ] (b) The undersigned is a natural person whose
individual net worth, or joint net worth with that
person's spouse, at the time of purchase exceeds
$1,000,000;
[ ] (c) The undersigned 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 who reasonably expects the same
income level in the current year;
[ ] (d) The undersigned is an entity, and all of the
equity owners of such entity meet the
qualifications of either (a), (b) or (c) above or
(e), (f), (g) or (h) below;
[ ] (e) Any savings and loan association or other
institution specified in section 3(a)5(A) of the
Act whether acting in its individual or fiduciary
capacity; any broker or dealer registered pursuant
to section 15 of the Security Exchange Act of
1934; any plan established and maintained by a
state, its political subdivisions, or any agency
or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if
such plan has total assets in excess of
$5,000,000; an employee benefit plan within the
meaning of Title I of the Employee Retirement
Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined
in section 3(21) of such Act, which is a savings
and
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loan association, or if the employee benefit plan
has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made
solely by persons that are accredited investors;
[ ] (f) Any private business development company as
defined in section 202(a)(22) of the Investment
Advisers Act of 1940;
[ ] (g) Any organization described in Section 501(c)(3) of
the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or
partnership, not formed for the specific purpose
of acquiring the securities offered, with total
assets in excess of $5,000,000; and
[ ] (h) Any trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase
is directed by a sophisticated person as described
in ss.230.506(b)(2)(ii).
(d) The Purchaser is acquiring or will acquire the Shares for its own
account for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution thereof, except in compliance with applicable
securities laws (including exemptions thereunder) or pursuant to an effective
registration statement under the Securities Act. The Purchaser agrees to offer,
sell or otherwise transfer the Shares only (i) in accordance with the terms of
this Agreement and (ii) pursuant to registration under the Securities Act or an
exemption from registration under the Securities Act and any other applicable
securities law.
(e) The Company has furnished or made available to the Purchaser all
material information relating to the business, finances and operations of the
Company and material information relating to the offer and sale of the Shares
and which have been requested by the Purchaser, the Purchaser and/or its
advisors, if any, in each case, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries. Without limiting the generality of the foregoing, the
Purchaser acknowledges that he or she has been furnished with, and has had the
opportunity to review, a copy of a draft of the Company's registration statement
on Form SB-2 (the "Draft Registration Statement"); the Purchaser understands
that such Draft Registration Statement has not yet been filed with the
Securities and Exchange Commission ("SEC"), and that no sales of any securities
can be made pursuant to such Draft Registration Statement unless and until it
shall be filed with, and declared effective by, the SEC; The purchaser
acknowledges further that he or she understands that except for the historical
matters discussed in the Draft Registration Statement, the matters discussed
therein are forward-looking statements under the federal securities laws that
involve risks and uncertainties, including, but not limited to, product demand
and market acceptance risks, the effect of economic conditions, the impact of
competitive products and pricing, product development, commercialization and
technological difficulties, capacity and supply constraints or difficulties, the
results of financing efforts, actual purchases under agreements, the effect of
the Company's accounting policies, and other risks detailed therein. The
purchaser understands that actual results could differ materially from those
estimated or anticipated in these forward-looking statements.
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(f) The Purchaser, in electing to subscribe for the Shares hereunder,
has relied upon an independent investigation made by it and its representative,
if any. The Purchaser has been given no oral or written representations or
assurances from the Company or any representation of the Company other than as
set forth in this Agreement.
(g) The Purchaser understands that it is within the sole and absolute
discretion of the Company whether to accept his or her subscription in whole or
in part and that this subscription is not binding unless and until it is
accepted by the Company. The Purchaser also understands and agrees that his or
her subscription to purchase the Shares shall not be deemed binding upon the
Company until the funds paid by the Purchaser herewith clear and are credited to
the Company's account. If all or any part of this subscription is not accepted,
the funds paid by the Purchaser representing such partially or completely
rejected subscription, delivered herewith, with be returned promptly to the
Purchaser, without interest.
(h) The Purchaser has the ability to evaluate the merits and risks of
an investment in the Company based upon his or her knowledge and experience in
financial and business matters.
(i) The Purchaser's investment in the Company has not been solicited
by means of public solicitation or advertisement and all of the information and
representations contained herein, particularly those representations relating to
the Purchaser's general ability to bear the risks of the investment being made
hereby and my suitablilty as an Investor are true and correct.
(j) The Purchaser is aware that the Shares are a speculative
investment involving a very high degree of risk and that there is no guarantee
that the Purchaser will realize any gain from an investment in the Shares. The
Purchaser is able (i) to bear the economic risk of this investment, (ii) to hold
the Shares indefinitely, and (iii) presently able to afford a partial or
complete loss of this investment; and has adequate other means of providing for
his or her current needs and personal contingencies and therefor has no need for
liquidity in this investment.
(k) The Purchaser is a minimum of 18 years of age, is a bona fide
resident of the State set forth on the signature page hereto, maintains his or
her principal residence there and have no present intention of becoming a
resident of any other state or jurisdiction prior to my purchase of the Shares.
(l) The Purchaser represents that the funds provided for this
investment are either separate property of the purchaser, community property
over which the purchaser has the right of control or are otherwise funds as to
which the purchaser has the sole right of management.
(m) The Purchaser understands the meaning and legal consequences of
the foregoing representations and warranties, which are true and correct as of
the date hereof and will be true and correct as of the date of the acquisition
of the Shares subscribed for herein. Each such representation and warranty shall
survive such purchase.
(n) The Purchaser understands and agrees that if this subscription is
accepted, he or she may be required to execute other documents to effectuate or
evidence his or her purchase of the Shares.
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(o) (For Florida Residents Only). The Purchaser understands and agrees
to the following:
THE SHARES REFERRED TO HEREIN WILL BE SOLD TO, AND
ACQUIRED BY ME IN A TRANSACTION EXEMPT UNDER SECTION
517.061 OF THE FLORIDA SECURITIES ACT. THE SHARES HAVE
NOT BEEN REGISTERED UNDER SAID ACT IN THE STATE OF
FLORIDA. IN ADDITION, IF SALES ARE MADE TO FIVE OR MORE
FLORIDA RESIDENTS I SHALL HAVE THE PRIVILEGE OF VOIDING
THE PURCHASE WITHIN THREE (3) DAYS AFTER THE FIRST
TENDER OF CONSIDERATION IS MADE BY ME TO THE COMPANY, AN
AGENT OF THE COMPANY, OR AN ESCROW AGENT OR WITHIN 3
DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS
COMMUNICATED TO ME, WHICHEVER OCCURS LATER.
4. Notices.
(a) All notices, requests and other communications hereunder must be
in writing and delivered to the parties at the following addresses:
If to Purchaser, to:__________________________________________________
_______________________________________
_______________________________________
If to the Company, to: The Tirex Corporation
000 Xx. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
with a copy to: Xxxxxxx Xxxxxx, Esq.
000 Xxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
(b) All notices required or permitted to be given hereunder shall be
mailed by certified mail, or delivered by hand or by recognized overnight
courier to the party to whom such notice is required or permitted to be given
hereunder at the address set forth above for such party, in all cases with
written proof of receipt required. Any such notice shall be deemed to have been
given when received by the party to whom notice is given, as evidenced by
written and dated receipt of the receiving party. Either party may change the
address to which notice to it is to be addressed, by written notice to the other
party, as provided herein.
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5. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party by
facsimile transmission of a copy of this Agreement bearing the signature of the
party so delivering this Agreement.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and permitted assigns.
(c) Notwithstanding the place where this Agreement may be executed by
any of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the
internal laws of the State of Delaware without giving effect to conflicts of
law.
(d) The headings of the sections of this document have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
(e) The provisions of this Agreement are severable, and if any clause
or provision shall be held invalid, illegal or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforecability shall affect in
that jurisdiction only such clause or provision, or part thereof, and shall not
in any manner affect such clause or provision in any other jurisdiction or any
other clause or provision of this Agreement in any jurisdiction.
(f) This Agreement constitutes the sole and entire agreement of the
parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer(s) of each party hereto as of the date
first above written.
Purchaser:
______________________________
Name:
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The Tirex Corporation
______________________________
Name:
Title:
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