Exhibit 6.5
SUBSCRIPTION AGREEMENT
Epic Research Company, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Gentlemen:
This Subscription Agreement is made by and between EPIC RESEARCH
COMPANY, INC., a New Hampshire corporation having a business address of 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxxxxx (the "Corporation") and N. Xxxxxx
Xxxx (the "Investor") who is subscribing hereby for shares of the
Corporation's no par value common stock (the "Shares") pursuant to the
terms and conditions of this Subscription Agreement.
In consideration of the Corporation's agreement to sell 50,000 Shares
to the Investor and to cause such Shares to be issued to the Investor upon
the terms and conditions set forth in this Subscription Agreement, the
Investor agrees and represents as follows:
A. Subscription
1. Subject to the terms of this Subscription Agreement, the
Investor hereby irrevocably subscribes for and agrees to purchase 50,000
Shares at a purchase price of Twenty-two Cents ($3.33) per Share (the
"Subscription"). Simultaneously with the delivery of the signature page
to this Subscription Agreement, the Investor shall deliver to the
Corporation payment (the "Payment") in the amount of One Hundred Sixty-
five Thousand Dollars ($165,000).
2. The expiration date of this offering is December 15, 2003, (the
"Expiration Date"), unless extended by the Corporation for a period of 120
days. All sales must be completed not later than the Expiration Date,
which date may be extended at the discretion of the Corporation to a date
not later than 120 days after the Expiration Date.
3. The Investor hereby acknowledges receipt of a copy of the
Corporation's By-Laws and Articles of Incorporation, and hereby
specifically accepts and adopts each and every term of those documents as
they relate to ownership of Shares and agrees to be bound thereupon by the
(a) execution and delivery by the Investor to the Corporation of the
signature page to this Subscription Agreement and (b) acceptance by the
Corporation of the Investor's Subscription Agreement.
B. Representations and Warranties
1. In order to induce the Corporation to accept this subscription,
the Investor hereby represents and warrants to, and covenants with, the
Corporation as follows:
(i) The Investor has carefully read this Subscription Agreement
and has not been furnished with any other materials or literature relating
to the offer and sale of the Shares;
(ii) The Investor has had a reasonable opportunity to ask
questions of and receive answers from the Corporation concerning the
Corporation and this offering, and all such questions, if any, have been
answered to the full satisfaction of the Investor;
(iii) The Investor has such knowledge and expertise in
financial and business matters that the Investor is capable of evaluating
the merits and risks involved in an investment in the Shares. The
Investor is familiar with the business and operations and the proposed
business and operations of the Corporation and understands and has
evaluated the merits and risks of a purchase of the Shares. In evaluating
the suitability of an investment in the Shares, the Investor has not been
furnished with nor relied upon any representations or other information
(whether oral or written) from the Corporation. The Investor has
carefully considered and has, to the extent the Investor believes such
discussion necessary, discussed with the Investor's professional legal,
tax, accounting and financial advisors the suitability of an investment in
the Shares and has determined that the Shares being subscribed for by the
Investor are a suitable investment for the Investor;
(iv) Except as set forth in the Subscription Agreement, no
representations or warranties have been made to the Investor by the
Corporation or any agent, employee or affiliate of the Corporation and, in
entering into this transaction, the Investor is not relying upon any
information other than that contained in this Subscription Agreement and
the results of independent investigation by the Investor;
(v) The Investor understands that (a) the Shares have not been
registered under the Securities Act of 1933, as amended (the "Act") or the
securities laws of any state, based upon an exemption from such
registration requirements for non-public offerings pursuant to Regulation
D under the Act; (b) the Shares are and will be "restricted securities",
as said term is defined in Rule 144 of the Rules and Regulations
promulgated under the Act; (c) the Shares may not be sold or otherwise
transferred unless they have been first registered under the Act and all
applicable state securities laws, or unless exemptions from such
registration provisions are available with respect to said resale or
transfer; (d) other than as set forth in this Subscription Agreement, the
Corporation is under no obligation to register the Shares under the Act or
any state securities laws, or to take any action to make any exemption
from any such registration provisions available; and (e) the certificates
for the Shares will bear a legend to the effect that the transfer of the
securities represented thereby is subject to the provisions hereof;
(vi) The Investor is acquiring the Shares solely for the account
of the Investor, for investment purposes only, and not with a view towards
the resale or distribution thereof;
(vii) The Investor will not sell or otherwise transfer any
of the Shares, or any interest therein, unless and until (a) the Shares
shall have first been registered under the Act and all applicable state
securities laws; or (b) the Investor shall have first delivered to the
Corporation a written opinion of counsel (which counsel and opinion (in
form and substance) shall be reasonably satisfactory to the Corporation),
to the effect that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state securities
laws;
(viii) The Investor has full power and authority to execute
and deliver this Subscription Agreement and to perform the obligations of
the Investor hereunder, and this Subscription Agreement is a legally
binding obligation of the Investor in accordance with its terms;
(ix) The Investor recognizes that an investment in the
Corporation involves substantial risk. The Investor has had a reasonable
opportunity to ask questions of and receive answers from the Corporation
concerning risk factors related to the purchase of the Shares including,
among other things, the Corporation's lack of an operating history,
regulatory requirements, competition, arbitrary offering price, no market
for the Shares, dilution, no anticipated dividends and no assurance that
the Corporation will be able to meet its projections. The Investor
understands all of the risk factors related to the purchase of the Shares,
including, but not limited to, those set forth in this Subscription
Agreement;
(x) All of the representations and warranties of the Investor
contained in this Subscription Agreement and all information furnished by
the Investor to the Corporation pursuant to this Subscription Agreement
are true, accurate, complete and correct in all respects and if there
should be any material change in such representations, warranties and
information prior to the Investor's subscription being accepted, the
Investor will immediately furnish such revised or corrected information to
the Corporation;
(xi) The Investor shall indemnify and hold harmless the
Corporation, its affiliates and their respective trustees, officers,
directors, partners, employees and professional advisers from and against
any and all claims, losses, damages, liabilities or expenses whatsoever
(including, but not limited to, costs, reasonable attorneys' fees and any
and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation commenced or threatened or
any claim whatsoever) arising out of any actual or alleged
misrepresentation or misstatement of facts or omissions to represent or
state facts made by the Investor to any such party concerning the Investor
or the Investor's financial position in connection with the offering or
sale of the Shares, including, without limitation, any such
misrepresentation, misstatement, or any breach of the Investor's
representations and warranties contained in this Subscription Agreement or
the Investor's failure to fulfill any of its covenants or agreements
contained in this Subscription Agreement;
(xii) The representations, warranties and covenants herein
contained are made and given by the Investor to induce the Corporation to
sell and issue Shares to the Investor, and each representation, warranty
and covenant constitutes a material portion of the consideration therefor;
and
(xiii) The foregoing representations, warranties and
agreements shall survive the Closing and any investigation by the
Corporation.
C. Understandings
1. The Investor understands that this subscription is not
binding upon the Corporation until the Corporation accepts it, which
acceptance is at the sole discretion of the Corporation and is to be
evidenced by the Corporation's execution of this Subscription Agreement
where indicated. This Subscription Agreement shall be null and void if
the Corporation does not accept it as aforesaid.
2. The Investor understands that the Corporation may, in its
sole discretion, reject this subscription.
3. No Federal or state agency has made any finding or
determination as to the accuracy or adequacy of this Subscription
Agreement or as to the fairness of the terms of this offering for
investment, nor any recommendation or endorsement of the Shares.
4. Any assumptions, estimates and forecasts set forth in this
Subscription Agreement have been included therein for purposes of
illustration only and no assurance is given that actual results will
correspond with the results contemplated by the various assumptions set
forth therein.
5. The Investor acknowledges that the information contained in
this Subscription Agreement is confidential and non-public and agrees that
all such information shall be kept in confidence by the Investor and
neither used by the Investor to the Investor's personal benefit (other
than in connection with this Subscription) nor disclosed to any third
party for any reason; provided, however, that this obligation shall not
apply to any such information which (a) is part of the public knowledge or
literature readily accessible on the date hereof, (b) becomes part of the
public knowledge or literature and readily accessible by publication
(except as a result of a breach of this provision); or (c) is received
from third parties (except third parties who disclose such information in
violation of any confidentiality agreements, including, without
limitation, any subscription agreement they may have entered into with the
Corporation or its affiliates).
D. Miscellaneous
1. Neither this Subscription Agreement nor any of the rights
of the Investor hereunder may be transferred or assigned by the Investor.
2. This Subscription Agreement (i) may only be modified by a
written instrument executed by the Investor and the Corporation; (ii) sets
forth the entire agreement of the Investor and the Corporation with
respect to the subject matter hereof; (iii) shall be governed by the laws
of the State of New Hampshire applicable to contracts made and to be
wholly performed therein, with regard to New Hampshire's conflicts of laws
principles; and (iv) shall inure to the benefit of, and be binding upon
the Corporation and the Investor and their respective heirs, legal
representatives, successors and permitted assigns.
3. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered
personally or mailed by certified or registered mail, return receipt
requested, postage prepaid, as follows: if to the Investor, to the address
set forth in the Signature Page; and if to the Corporation, to the address
on page 1 of this Subscription Agreement, or to such other address as the
Corporation or the Investor shall have designated to the other by like
notice.
Subscription Agreement
Signature Page
IN WITNESS WHEREOF, the Investor has executed this Subscription
Agreement this 4th day of November, 2003.
Subscriber:
/s/ N. Xxxxxx Xxxx
N. Xxxxxx Xxxx
Social Security Number: [redacted]
Address:
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
ACCEPTANCE OF SUBSCRIPTION
EPIC RESEARCH COMPANY, INC.,
The foregoing subscription is hereby accepted by Epic Research
Company, Inc., this 4th day of Novemberber, 2003, for 50,000 Shares.
Epic Research Company, Inc.
By: /s/ N. Xxxxxx Xxxx
N. Xxxxxx Xxxx, President
