SUBSCRIPTION AGREEMENT
Exhibit
10.2
Page
1 of
4
SUBSCRIPTION
AGREEMENT (this “Agreement”) made as of August 25, 2008 by and between Modern
Medical Modalities Corporation, a New Jersey corporation (the “Company”) and
Xxxxxxx Xxxxx, with an address at Tel Hai 14, Xxxxxxxxx Xxxxxx 00000 (the
“Subscriber”).
WITNESSETH:
WHEREAS,
the Subscriber desires to purchase and the Company desires to sell in a private
placement to Subscriber (as defined below) 500,000 shares of its common stock,
par value $.0002 per share (the “Common Stock”) at a purchase price of $0.10 per
share for an aggregate amount of $50,000 (“Purchase Price”). The 500,000 shares
of Common Stock being purchased by Subscriber pursuant to this Agreement shall
be referred to as the “Securities”.
NOW,
THEREFORE, in consideration of the premises and the mutual representations
and
covenants hereinafter set forth, the parties hereto agree as
follows:
SUBSCRIPTION
FOR SECURITIES AND REPRESENTATIONS BY SUBSCRIBER
Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
irrevocably subscribes for and agrees to purchase from the Company the
Securities and the Company agrees to sell such Securities to the Subscriber
for
said Purchase Price. The Purchase Price is payable by personal or business
check, wire transfer of immediately available funds or money order made payable
to the Company contemporaneously with the execution and delivery of this
Agreement by the Subscriber. The Securities will be delivered by the Company
to
the Subscriber promptly following the receipt of the Purchase
Price.
The
Subscriber recognizes that the purchase of Securities involves a high degree
of
risk in that (i) an investment in the Company is highly speculative and only
investors who can afford the loss of their entire investment should consider
investing in the Company; (ii) the Subscriber may not be able to liquidate
its
investment; (iii) transferability of the Securities is extremely limited; and
(iv) in the event of a disposition, the Subscriber could sustain the loss of
its
entire investment.
The
Subscriber represents that the Subscriber is an “accredited investor” as such
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act
of 1933, as amended (the “Act”),
and
that the Subscriber is able to bear the economic risk and illiquidity of an
investment in the Securities.
The
Subscriber hereby acknowledges and represents that (i) the Subscriber has prior
investment experience, including investment in non-listed and unregistered
securities, or that the Subscriber has employed the services of an investment
advisor, attorney and/or accountant to read all of the documents furnished
or
made available by the Company both to the Subscriber and to all other
prospective investors to evaluate the merits and risks of such an investment
on
the Subscriber’s behalf; (ii) the Subscriber recognizes the highly speculative
nature of an investment in the Securities; and (iii) the Subscriber is able
to
bear the economic risk and illiquidity which the Subscriber assumes by investing
in the Securities.
The
Subscriber (i) hereby represents that the Subscriber has been furnished by
the
Company during the course of this transaction with all information regarding
the
Company which the Subscriber has requested or desired to know; (ii) has been
afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning the
terms
and conditions of the Securities; and (iii) has received any additional
information which the Subscriber has requested.
8.
To the
extent necessary, the Subscriber has retained, at its own expense, and relied
upon the advice of appropriate professionals regarding the investment, tax
and
legal merits and consequences of this Agreement and its purchase of the
Securities hereunder.
Exhibit
10.2
Page
2 of
4
The
Subscriber covenants that no Securities were offered or sold to it by means
of
any form of general solicitation or general advertising, and in connection
therewith the Subscriber did not (i) receive or review any advertisement,
article, notice or other communication published in a newspaper or magazine
or
similar media or broadcast over television or radio, whether closed circuit
or
generally available; or (ii) attend any seminar, meeting or industry investor
conference whose attendees were invited by any general solicitation or general
advertising.
The
Subscriber hereby acknowledges that the sale of Securities has not been reviewed
by the SEC because of the Company’s representations that this sale of Securities
is intended to be exempt from the registration requirements of Section 5 of
the
Act pursuant to Sections 3(b), 4(2) and 4(6) thereof and Regulation D
promulgated under the Act. In this connection, the Subscriber hereby represents
that the Subscriber is purchasing the Securities for the Subscriber’s own
account for investment and not with a view toward the resale or distribution
thereof to others. The Subscriber agrees that the Subscriber will not sell
or
otherwise transfer the Securities unless they are registered under the Act
or
unless an exemption from such registration is available.
The
Subscriber understands and hereby acknowledges that the Securities it is
purchasing are characterized as “restricted securities” under federal securities
laws inasmuch as they are being acquired from the Company in a transaction
not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances. In this connection, Subscriber represents that it is
familiar with Rule 144 promulgated under the Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
The
Subscriber understands that an investment in the Securities is extremely risky
and by executing this Agreement acknowledges that it has reviewed the Section
entitled “Risk Factors” included in the Company’s Form 10-KSB for the year ended
December 31, 2007 attached hereto as Exhibit
A.
The
Subscriber acknowledges that it has had the opportunity to review the Company
Form 10-QSB for the quarter ended June 30, 2007 attached hereto as Exhibit
B.
The
Subscriber understands and hereby acknowledges that the Company is under no
obligation to register the Securities under the Act or any state securities
or
“blue sky” laws. The Subscriber consents that the Company may, if it desires,
permit the transfer of the Securities out of the Subscriber’s name only when the
Subscriber’s request for transfer is accompanied by an opinion of counsel
reasonably satisfactory to the Company that neither the sale nor the proposed
transfer results in a violation of the Act or any applicable state “blue sky”
laws (collectively the, “Securities
Laws”).
The
Subscriber consents to the placement of a legend on any certificate or other
document evidencing the Securities indicating that such Securities have not
been
registered under the Act or any state securities or “blue sky” laws and setting
forth or referring to the restrictions on transferability and sale thereof
contained in this Agreement. The Subscriber is aware that the Company will
make
a notation in its appropriate records and issue “stop transfer” instructions to
its transfer agent with respect to the restrictions on the transferability
of
such Securities.
The
Subscriber represents that the Subscriber has full power and authority
(corporate, statutory and otherwise) to execute and deliver this Agreement
and
to purchase the Securities subscribed for hereby. This Agreement constitutes
the
legal, valid and binding obligation of the Subscriber, enforceable against
the
Subscriber in accordance with its terms.
REPRESENTATIONS
AND WARRANTIES BY COMPANY
As
a
material inducement of the Subscriber to enter into this Subscription Agreement
and subscribe for the Securities, the Company represents and warrants to the
Subscriber, as of the date hereof, as follows:
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey, has full power to carry on its
business as and where such business is now being conducted and to own, lease
and
operate the properties and assets now owned or operated by it and is duly
qualified to do business and is in good standing in each jurisdiction where
the
conduct of its business or the ownership of its properties requires such
qualification.
The
execution, delivery and performance of this Subscription Agreement by the
Company and the consummation of the transactions contemplated hereby have been
duly authorized by the Board of Directors of the Company.
Exhibit
10.2
Page
3 of
4
The
execution, delivery and performance of this Subscription Agreement and the
consummation of the transactions contemplated hereby do not (i) violate or
conflict with the Company’s Articles of Incorporation or By-Laws, (ii) conflict
with or result (with the lapse of time or giving of notice or both) in a
material breach or default under any material agreement or instrument to which
the Company is a party or by which the Company is otherwise bound, (iii) violate
any order, judgment, law, statute, rule or regulation applicable to the Company,
except where such violation, conflict or breach would not have a material
adverse effect on the Company. This Subscription Agreement when executed by
the
Company will be a legal, valid and binding obligation of the Company enforceable
in accordance with its terms.
There
are
no actions, suits, proceedings or investigations pending or, to the knowledge
of
the Company, threatened against the Company at law or in equity before or by
any
court or Federal, state, municipal or their governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign which could
materially adversely affect the Company. The Company is not subject to any
continuing order, writ, injunction or decree of any court or agency against
it
which would have a material adverse effect on the Company.
No
consents, filings, authorizations or other actions of any governmental authority
are required to be obtained or made by the Company for the Company’s execution,
delivery and performance of this Subscription Agreement which have not already
been obtained or made or will be made in a timely manner following the
closing.
The
Company is not obligated to pay any commission or finders fees to any persons
in
connection with the sale of the Securities.
MISCELLANEOUS
This
Agreement shall not be changed, modified or amended except by a writing signed
by all parties to this Agreement, and this Agreement may not be discharged
except by performance in accordance with its terms or by a writing signed by
the
party to be charged.
The
Company will use the proceeds hereof for working capital and general corporate
purposes.
Upon
the
execution and delivery of this Agreement by the Subscriber, this Agreement
shall
become a binding obligation of the Subscriber with respect to the purchase
of
Securities as herein provided, subject to acceptance by the
Company.
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 laws of the State of New York
without regard to principles of conflicts of law.
The
holding of any provision of this Agreement to be invalid or unenforceable by
a
court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect. If any provision of
this
Agreement shall be declared by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in whole or in part, such provision
shall
be interpreted so as to remain enforceable to the maximum extent permissible
consistent with applicable law and the remaining conditions and provisions
or
portions thereof shall nevertheless remain in full force and effect and
enforceable to the extent they are valid, legal and enforceable, and no
provisions shall be deemed dependent upon any other covenant or provision unless
so expressed herein.
It
is
agreed that a waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any subsequent
breach by that same party.
The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Agreement.
This
Agreement may be executed in two or more counterparts each of which shall be
deemed an original, but all of which shall together constitute one and the
same
instrument.
Any
pronoun herein shall include all genders and/or the plural or singular as
appropriate from the context.
Exhibit
10.2
Page
4 of
4
Each
party hereto hereby irrevocably and unconditionally submits to the jurisdiction
of any federal or state court sitting in the County of New York in the State
of
New York and irrevocably agrees that all actions or proceedings arising out
of
or relating to this Agreement shall be litigated exclusively in such court.
Each
party hereto agrees not to commence any legal proceeding related hereto or
thereto except in such courts. Each party hereto irrevocably waives any
objection which it may now or hereafter have to the laying of the venue of
any
such proceeding in any such court and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Each party hereto consents to process being served
in
any such action or proceeding by mailing a copy thereof by registered or
certified mail.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OF
THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY OF THE
OTHER
PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 3.11.
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remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto signed this agreement on the date first
written above.
Company:
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx
Xxxxx
Title:
Chairman/
Chief Executive Officer
Subscriber:
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
