EXHIBIT 10.1
WORLD WASTE TECHNOLOGIES, INC.
UNITS OF REGISTRABLE COMMON STOCK AND WARRANTS AT $2.50 PER UNIT
SUBSCRIPTION AGREEMENT
1. SUBSCRIPTION:
(a) The undersigned (individually and/or collectively, the "Participant")
hereby applies to become a participant in the Units of registrable common stock
and warrants (collectively, the "Units," "Shares" or the "Common Stock") of
WORLD WASTE TECHNOLOGIES, INC., a California corporation ("WWT" or the
"Company"), in accordance with the terms and conditions of this Subscription
Agreement (the "Subscription").
(b) Before this subscription for participation in the Shares is
considered, the Participant must complete, execute and deliver to the Company
the following:
(i) This Subscription;
(ii) The Certificate of Accredited Investor Status attached hereto
as Exhibit A;
(iii) The WWT Registration Rights Agreement; and
(iv) The WWT Warrant Agreement; and
(v) The Participant's check or wire transfer in the amount of
$__________________.
(c) Participant hereby subscribes for __________ Units at a purchase price
of $2.50 per Unit.
(d) This Subscription is irrevocable by the Participant.
(e) This Subscription is not transferable or assignable by the
Participant.
(f) This Subscription shall be deemed to be accepted only when this
Subscription has been executed by an authorized officer of the Company. The
deposit of Participant's check or wire transfer funds will not be deemed an
acceptance of this Subscription.
(g) This Subscription may be rejected in whole or in part by the Company
in its sole discretion. In the event this Subscription is rejected in its
entirety by the Company, all funds (without interest) and documents tendered by
the Participant shall be returned. In the event that this Subscription is
rejected in part by the Company, the Company shall return to the Participant the
part of the payment relating to such rejected portion without interest. The
Company shall have the right to allocate Shares among Participants in any manner
it may desire; provided, that no Participant shall be obligated to purchase more
than the number of Shares set forth in Section 1(c) above without such
Participant's prior written consent.
(h) Participant understands that separate Subscriptions will be executed
with other Participants for the remainder of the Shares to be sold in this
offering.
(i) Placement agents and broker dealers, including Chadbourn Securities,
Inc. (an NASD broker-dealer affiliate of Xxxxx McAfee Capital Partners, LLC),
may be paid commissions in an amount up to but not to exceed (i) selling
commissions from the Company up to eight percent (8%) of the aggregate proceeds
from the sale of the Shares, and (ii) a non-accountable expense allowance up to
two percent (2%) of the aggregate proceeds from the sale of the Shares, and
(iii) warrants to purchase up to ten percent (10%) of the aggregate number of
Shares sold in the offering, exercisable for seven years at an exercise price
equal to the Offering Price, with a net exercise ("cashless exercise")
provision.
(j) Until the registration statement contemplated by the WWT Registration
Rights Agreement is declared effective, Participant hereby agrees not to, and
will cause its affiliates not to, enter into any "put equivalent position" as
such term is defined in Rule 16a-1 under the Securities Exchange Act of 1934, as
amended, or short sale position with respect to the Common Stock.
2. REPRESENTATIONS BY PARTICIPANT. In consideration of the Company's acceptance
of participation, I make the following representations and warranties to the
Company, to its principals, and to participating broker-dealers, if any, jointly
and severally, which warranties and representations shall survive any acceptance
of my participation in the Shares:
(a) I have had the opportunity to ask questions and receive any additional
information from persons acting on behalf of the Company to verify my
understanding of the terms thereof and of the Company's business and status
thereof, and that no oral information furnished to the undersigned or my
advisors in connection with my participation in the Shares has been in any way
inconsistent with other documentary information provided.
(b) I acknowledge that I have not seen, received, been presented with, or
been solicited by any leaflet, public promotional meeting, newspaper or magazine
article or advertisement, radio or television advertisement, or any other form
of advertising or general solicitation with respect to my participation in the
Shares.
(c) The Shares are being purchased for my own account for long-term
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meanings of the Securities
Act of 1933, as amended (the "Securities Act"), and any applicable state
securities laws. No other person or entity will have any direct or indirect
beneficial interest in, or right to, the Shares. I or my agents or investment
advisors have such knowledge and experience in financial and business matters
relating to an investment of this type that will enable me to utilize the
information made available to me in connection with the participation in the
Shares to evaluate the merits and risks of participation and to make an informed
investment decision.
(d) I understand that (A) the Shares (1) have not been registered under
the Securities Act or any state securities laws, (2) will be issued in reliance
upon an exemption from the registration and prospectus delivery requirements of
the Securities Act pursuant to Section 4(2) and/or Regulation D thereof and (3)
will be issued in reliance upon exemptions from the registration and prospectus
delivery requirements of state securities laws which relate to private
offerings, and (B) I must therefore bear the economic risk of such investment
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act and applicable state securities laws or is exempt therefrom. I
further understand that such exemptions depend upon, among other things, the
bona fide nature of my investment intent as expressed herein. Pursuant to the
foregoing, I acknowledge that the certificates representing the Shares acquired
pursuant to this Subscription shall bear a restrictive legend substantially as
follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS
(I) REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OR (II) AN
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE BOTH REASONABLY
SATISFACTORY TO THE COMPANY, HAS BEEN DELIVERED TO THE COMPANY AND
SUCH OPINION STATES THAT THE SHARES MAY BE TRANSFERRED WITHOUT SUCH
REGISTRATION."
(e) I acknowledge that I have been advised that:
(i) The Shares offered hereby have not been approved or disapproved
by the Securities and Exchange Commission ("SEC") or any state securities
commission nor has the SEC or any state securities commission passed upon the
accuracy or adequacy of any representations by the Company. Any representation
to the contrary is a criminal offense.
(ii) In making an investment decision, I must rely on my own
examination of the Company and the terms of the offering of the Shares,
including the merits and risks involved. The Shares have not been recommended by
any federal or state securities commission or regulatory authority. Furthermore,
the foregoing authorities have not confirmed the accuracy or determined the
adequacy of any representation. Any representation to the contrary is a criminal
offense.
(iii) The Shares are "Restricted Securities" within the meaning of
Rule 144 under the Securities Act, are subject to restrictions on
transferability and resale and may not be transferred or resold except as
permitted under the Securities Act and applicable state securities laws,
pursuant to registration or exemption therefrom.
(f) Other than the rights specifically set forth in the WWT Registration
Rights Agreement, I represent, warrant and agree that the Company and the
officers of the Company (the "Company's Officers") are under no obligation to
register or qualify the participation in the Shares under the Securities Act or
under any state securities law, or to assist the undersigned in complying with
any exemption from registration and qualification.
(g) I represent that I am an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act and I have executed the
Certificate of Accredited Investor Status, attached hereto as Exhibit A.
(h) I understand that the participation in the Shares is illiquid, cannot
be readily sold as there will not be a public market for them and that I may not
be able to sell or dispose of my participation in the Shares, or to utilize the
Shares as collateral for a loan. I understand that the purchase of the Shares is
a speculative investment and involves substantial risks and that I could lose my
entire investment in the Shares. I must not purchase participation in the Shares
unless I have liquid assets sufficient to assure myself that such purchase will
cause me no undue financial difficulties and that I can still provide for my
current and possible personal contingencies, and that the commitment herein for
participation in the Shares, combined with other investments of mine, is
reasonable in relation to my net worth.
(i) I understand that my right to transfer my participation in the Shares
will be restricted against transfers unless the transfer is not in violation of
the Securities Act, the California Securities Law, and any other applicable
state securities laws (including investment suitability standards), that the
Company will not consent to a transfer of participation in the Shares unless the
transferee represents that such transferee meets the financial suitability
standards required of an initial participant and that the Company has the right,
in its absolute discretion, to refuse to consent to such transfer.
(j) I have been advised to consult with my own attorney or attorneys
regarding all legal matters concerning an investment in the Company and the tax
consequences of participation in the Shares, and have done so, to the extent I
consider necessary.
(k) I acknowledge that the tax consequences to me of investing in the
Company will depend on my particular circumstances, and neither the Company, the
Company's officers, any other investors, nor the partners, shareholders,
members, managers, agents, officers, directors, employees, affiliates or
consultants of any of them, will be responsible or liable for the tax
consequences to me of an investment in the Company. I will look solely to and
rely upon my own advisers with respect to the tax consequences of this
investment.
(l) I acknowledge that I have made the decision to invest in the Shares
solely on the basis of the information set forth in the Company's Private
Placement Memorandum (the "Memorandum"), dated _______________________, 2004,
included herewith, and that no officer, director, or other person affiliated
with the Company has given me any information or made any representations, oral
or written, other than as provided in the Memorandum, on which I have relied
upon in deciding to invest in the Shares, including without limitation, any
information with respect to future operations of the Company or the economic
returns which may accrue as a result of the purchase of the Shares.
(m) All information which I have provided to the Company concerning
myself, my financial position and my knowledge of financial and business matters
is truthful, accurate, correct and complete as of the date set forth herein. I
agree to furnish the Company such other information as the Company may
reasonably request in order to verify the accuracy of the information contained
herein and agree to notify the Company immediately of any material change in the
information provided herein that occurs prior to the Company's acceptance of
this Subscription.
(n) I and my affiliates do not have, and during the 30 day period prior to
the date of this Subscription, I and my affiliates have not entered into, any
"put equivalent position" or short sale positions with respect to the Common
Stock.
(o) If I am not a United States person, I hereby represent that I have
satisfied myself as to the full observance of the laws of my applicable
jurisdiction in connection with any invitation to subscribe for the Shares or
any use of this Subscription, including (i) the legal requirements within such
jurisdiction for the purchase of the Shares, (ii) any foreign exchange
restrictions applicable to such purchase, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale or transfer of the Shares. My subscription and payment for, and my
continued beneficial ownership of the Shares, will not violate any applicable
securities or other laws of such jurisdiction.
3. AGREEMENT TO INDEMNIFY COMPANY. I hereby agree to indemnify and hold harmless
the Company, its principals, the Company's officers, directors and attorneys,
from any and all damages, costs and expenses (including actual attorneys' fees)
which they may incur (i) by reason of my failure to fulfill any of the terms and
conditions of participation, (ii) by reason of my breach of any of my
representations, warranties or agreements contained herein; (iii) with respect
to any and all claims made by or involving any person, other than me personally,
claiming any interest, right, title, power or authority in respect to my
participation. I further agree and acknowledge that these indemnifications shall
survive any sale or transfer, or attempted sale or transfer, of any portion of
my participation.
4. SUBSCRIPTION BINDING ON HEIRS, ETC. This Subscription, upon acceptance by the
Company, shall be binding upon the heirs, executors, administrators, successors
and assigns of the Participant. If the undersigned is more than one person, the
obligations of the undersigned shall be joint and several and the
representations and warranties shall be deemed to be made by and be binding on
each such person and his heirs, executors, administrators, successors, and
assigns.
5. EXECUTION AUTHORIZED. If this Subscription is executed on behalf of a
corporation, partnership, trust or other entity, the undersigned has been duly
authorized and empowered to legally represent such entity and to execute this
Subscription and all other instruments in connection with participation in the
Shares and the signature of the person is binding upon such entity.
6. ADOPTION OF TERMS AND PROVISIONS. The Participant hereby adopts, accepts and
agrees to be bound by all the terms and provisions hereof.
7. GOVERNING LAW. This Subscription shall be construed in accordance with the
laws of the State of California.
8. COUNSEL. The Participant hereby acknowledges that the Company and its
counsel, Simon, Xxxxxxx & Xxxxxx, PLC or Xxxx & Xxxxx, PC, represent the
interests of the Company and not those of the Participant in any agreement
(including this Subscription) to which the Company is a party.
9. INVESTOR INFORMATION:
(The information below should be consistent with the form of ownership selected
below.)
Name (please print):
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If entity named above By:
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Its:
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Social Security or Taxpayer I.D. Number:
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Business Address (including zip code):
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Business Phone:
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Business Fax:
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Residence Address (including zip code):
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Residence Phone:
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All communications to be sent to:
|_| Business or
|_| Residence Address
Please indicate below the form in which you will hold title to your
interest in the Shares. PLEASE CONSIDER CAREFULLY. ONCE YOUR SUBSCRIPTION IS
ACCEPTED, A CHANGE IN THE FORM OF TITLE CONSTITUTES A TRANSFER OF THE INTEREST
IN THE SHARES AND MAY THEREFORE BE RESTRICTED BY THE TERMS OF THIS SUBSCRIPTION,
AND MAY RESULT IN ADDITIONAL COSTS TO YOU. Subscribers should seek the advice of
their attorneys in deciding in which of the forms they should take ownership of
the interest in the Shares, because different forms of ownership can have
varying gift tax, estate tax, income tax, and other consequences, depending on
the state of the investor's domicile and his or her particular personal
circumstances.
___ INDIVIDUAL OWNERSHIP (one signature required)
___ JOINT TENANTS WITH RIGHT OF SURVIVORSHIP AND NOT AS TENANTS IN COMMON
(both or all parties must sign)
___ COMMUNITY PROPERTY (one signature required if interest held in one name,
i.e., managing spouse; two signatures required if interest held in both
names)
___ TENANTS IN COMMON (both or all parties must sign)
___ GENERAL PARTNERSHIP (fill out all documents in the name of the
PARTNERSHIP, by a PARTNER authorized to sign, and include a copy of the
Partnership Agreement)
___ LIMITED PARTNERSHIP (fill out all documents in the name of the LIMITED
PARTNERSHIP, by a GENERAL PARTNER authorized to sign, and include a copy
of the Limited Partnership Agreement and any other document showing that
the investment is authorized)
___ LIMITED LIABILITY COMPANY (fill out all documents in the name of the
LIMITED LIABILITY COMPANY, by a member authorized to sign, and include a
copy of the LIMITED LIABILITY COMPANY's Operating Agreement and any other
documents necessary to show the investment is authorized.)
___ CORPORATION (fill out all documents in the name of the CORPORATION, by the
President or other officer authorized to sign, and include a copy of the
Corporation's Articles and certified Corporate Resolution authorizing the
signature)
___ TRUST (fill out all documents in the name of the TRUST, by the Trustee,
and include a copy of the instrument creating the trust and any other
documents necessary to show the investment by the Trustee is authorized.
The date of the trust must appear on the Notarial where indicated.)
Subject to acceptance by the Company, the undersigned has completed this
Subscription Agreement to evidence his/her subscription for participation in the
Shares of the Company, this ____________ day of ___________ , 2004, at
__________________________ , ________________________.
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Participant
The Company has accepted this subscription as of the ______________ day of
______________________ , 2004.
WORLD WASTE TECHNOLOGIES, INC.,
a California corporation
By:
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Print:
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EXHIBIT A
CERTIFICATE OF ACCREDITED INVESTOR STATUS
Except as may be indicated by the undersigned below, the undersigned is an
"accredited investor," as that term is defined in Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"). The undersigned has
checked the box below indicating the basis on which he is representing his
status as an "accredited investor":
|_| a bank as defined in Section 3(a)(2) of the Securities Act, or any savings
and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the "Securities Exchange
Act"); an insurance company as defined in Section 2(13) of the Securities
Act; an investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section 2(a)(48) of
that Act; a small business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; a 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, and such plan
has total assets in excess of $5,000,000; an employee benefit plan within
the meaning 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 either a bank, savings and loan association,
insurance company, or registered investment adviser, 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";
|_| a private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940;
|_| an 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;
|_| a natural person whose individual net worth, or joint net worth with the
undersigned's spouse, at the time of this purchase exceeds $1,000,000;
|_| 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 the undersigned'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;
|_| a 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 person who has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks
of the prospective investment; or
|_| an entity in which all of the equity holders are "accredited investors" by
virtue of their meeting one or more of the above standards.
|_| an individual who is a director or executive officer of World Waste
Technologies, Inc.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Accredited Investor Status effective as of __________________, 2004.
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Name of Participant
By:
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Name:
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Title:
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