SUBSCRIPTION AGREEMENT
Exhibit 99.1
The
undersigned (the “Subscriber”), desires to become a holder of common shares (the
“Shares”) of Incoming, Inc., a
corporation organized under the laws of the state of Nevada (the “Company”); one
share of Common Stock has a par value $.001 per share. Accordingly, the
Subscriber hereby agrees as follows:
1.
Subscription.
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1.1
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The
Subscriber hereby subscribes for and agrees to accept from the Company
that number of Shares set forth on the Signature Page attached to this
Subscription Agreement (the “Agreement”), in consideration of $ 1.00 per
share. This
offer to purchase is submitted in accordance with and subject to the terms
and conditions described in this Subscription Agreement (the "Agreement").
I acknowledge that the Company reserves the right, in its sole and
absolute discretion, to accept or reject this subscription and the
subscription will not be binding until accepted by the Company in
writing.
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1.2
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The
closing of the Subscription of Shares hereunder (the “Closing”) shall
occur immediately upon: (i) receipt and acceptance by the Company of a
properly executed Signature Page to this Agreement; and (ii) receipt into
escrow of all funds for the subscription of shares
hereunder. The money we raise in this
offering before the minimum amount, $100,000, is sold will be deposited in
a separate non-interest bearing bank account where the funds will be held
for the benefit of those subscribing for our shares, until the minimum
amount is raised at which time we will deposit them in our bank account
and retain the transfer agent who will then issue the shares. The funds
will not be commingled with any other monies, and if the minimum amount is
not raised by the end of the offering period, ___________, 2010, all funds
will be refunded immediately, without
interest.
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2. Purchase
Procedure. The Subscriber acknowledges that, in order to
subscribe for Shares, he must, and he does hereby, deliver to the
Company:
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2.1
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One
(1) executed counterpart of the Signature Page attached to this Agreement
together with appropriate notarization;
and
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2.2
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A
check, trade draft or media due xxxx in the amount set forth on the
Signature Page attached to this Agreement, representing payment in full
for the Shares desired to be purchased hereunder, made payable to the
order of INCOMING, INC. ;
and
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An
executed copy of the Confidential Purchaser Questionnaire.
3. Representations of
Subscriber. By executing this Agreement, the Subscriber makes
the following representations, declarations and warranties to the Company, with
the intent and understanding that the Company will rely thereon:
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3.1
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Such
Subscriber acknowledges that he has received, carefully read and
understands in their entirety (a) this Subscription Agreement; (b) all
information necessary to verify the accuracy and completeness of the
Company’s representations, warranties and covenants made herein; (c) all
of the Company’s XXXXX filings; and (d) written or verbal answers to all
questions the Subscriber submitted to the Company regarding an investment
in the Company.
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3.2
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Such
Subscriber understands that an investment in the Shares involves
substantial risks and Subscriber recognizes and understand the risks
relating to the purchase of the
Shares.
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3.3
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Such
Subscriber has, either alone or together with the Subscriber’s Purchaser
Representative (as that term is defined in Regulation D under the Act),
such knowledge and experience in financial and business matters that the
Subscriber is capable of evaluating the merits and risks of an investment
in the Company.
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3.4
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Such
Subscriber’s investment in the Company is reasonable in relation to his
net worth and financial needs and he is able to bear the economic risk of
losing his entire investment in the
Shares.
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3.5
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Such
Subscriber understands that the offering and sale of the
Shares hereunder is registered under (i) the Securities Act of 1933, as
amended (the "Securities Act"), and (ii) various States' Divisions of
Securities in compliance with their administration and enforcement of the
respective States' Blue Sky Laws and Regulations. In accordance
therewith and in furtherance thereof, the Subscriber hereby represents and
warrants that it maintains the residency indicated on the signature page
hereof, the Subscriber has no present intention of becoming a resident of
any other state or
jurisdiction;
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3.6
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Such
Subscriber is aware that no active market exists for the
Shares. The Subscriber has adequate means of providing for the
Subscriber’s current needs and personal and family contingencies, has no
need for liquidity in the investment contemplated hereby, and is able to
bear the risk of loss of his entire
investment.
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3.7
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Such
Subscriber (i) is a citizen or resident of the United States of America,
(ii) is at least 21 years of age, (iii) has adequate means of providing
for his current needs and personal contingencies, (iv) has no need for
liquidity in his investment in the Shares, and (v) maintains his domicile
(and is not a transient or temporary resident) at the address shown
below.
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3.8
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All
information herein concerning the Subscriber, the Subscriber’s financial
position and the Subscriber’s knowledge of financial and business matters,
is correct and complete as of the date hereof and as of the date of
Closing, and if there should be any change in such information prior to
the Closing, the Subscriber will immediately provide the Company with such
new information. The Subscriber agrees that financial and other
information concerning the Subscriber may be disclosed by the Company to
any persons or entities that may enter into a transaction with the
Company. The Subscriber further agrees, if requested by the Company
or its authorized representative, to provide bank references or other
confirming information concerning the Subscriber’s financial information
as may be reasonably requested by the
Company.
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3.9
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Such
Subscriber represents that the Company has made available to him all
information which he deemed material to making an informed investment
decision in connection with his purchase of securities of the Company;
that the Subscriber is in a position regarding the Company, which, based
upon employment, family relationship or economic bargaining power, enabled
and enables Subscriber to obtain information from the Company in order to
evaluate the merits and risks of this investment; and that he has been
represented by Counsel and been advised concerning the risks and merits of
this investment. Further, Subscriber acknowledges that the Company has
made available to him the opportunity to ask questions of, and receive
answers from the Company, its officers, directors and other persons acting
on its behalf, and to obtain any additional information, to the extent the
Company possesses such information or can acquire it without unreasonable
effort or expense, necessary to verify the accuracy of the information
disclosed to Subscriber. Further, Subscriber represents that no statement,
printed material or inducement was given or made by the Company or anyone
on its behalf that is contrary to the information disclosed to
him.
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3.10
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Such
Subscriber is familiar with the nature and extent of the risks inherent in
investments in securities and in the business in which the Company is
engaged and intends to engage and has determined, either personally or in
consultation with the Subscriber’s Purchaser Representative or attorney,
that an investment in the Company is consistent with the Subscriber’s
investment objectives and income
prospects.
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3.11
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Such
Subscriber acknowledges that the Company has made available to him, at a
reasonable time prior to his purchase of the Shares, the opportunity to
ask questions of, and receive answers from, the Company concerning the
terms and conditions of the offering and to obtain any information, to the
extent that the Company possesses such information or can acquire it
without unreasonable effort or expense, which is necessary to verify the
accuracy of the information given to him or otherwise to make an informed
investment decision.
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3.12
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Such
Subscriber acknowledges that the Company has the unconditional right to
accept or reject this subscription, in whole or in part. The Company will
notify the Subscriber whether this subscription is accepted or rejected.
If such subscription is rejected, payment will be returned to the
Subscriber.
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3.13
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If
the Subscriber is a corporation, trust, partnership or other entity that
is not an individual person, it has been formed and validly exists and has
not been organized for the specific purpose of purchasing the Shares and
is not prohibited from doing so.
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3.14
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If
the Subscriber is purchasing the Shares in a fiduciary capacity for
another person or entity, including without limitation a corporation,
partnership, trust or any other entity, the Subscriber has been duly
authorized and empowered to execute this Subscription Agreement and all
other subscription documents, and such other person fulfills all the
requirements for purchase of the Shares as such requirements are set forth
herein, concurs in the purchase of the Shares and agrees to be bound by
the obligations, representations, warranties and covenants contained
herein. Upon request of the Company, the Subscriber will provide true,
complete and current copies of all relevant documents creating the
Subscriber, authorizing its investment in the Company and/or evidencing
the satisfaction of the foregoing.
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4. Indemnification. Subscriber
hereby agrees to indemnify and hold harmless the Company and the Company’s
officers, directors, employees, agents and affiliates from and against any and
all damages, losses, costs, liabilities and expenses (including, without
limitation, reasonable attorneys’ fees) which they, or any of them, may incur by
reason of the Subscriber’s failure to fulfill any of the terms and conditions of
this Agreement or by reason of the Subscriber’s breach of any of his
representations and warranties contained herein. This Agreement and
the representations and warranties contained herein shall be binding upon the
Subscriber’s heirs, executors, administrators, representatives, successors and
assigns.
THE
COMPANY HAS BEEN ADVISED THAT THE INDEMNIFICATION OF THE COMPANY, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES FOR VIOLATIONS OF STATE OR FEDERAL
SECURITIES LAWS IS VOID AS AGAINST PUBLIC POLICY AND THEREFORE
UNENFORCEABLE.
5. Arbitration
Agreement.
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5.1
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Subscriber
represents, warrants and covenants that any controversy or claim brought
directly, derivatively or in a representative capacity by him in his
capacity as a present or former security holder, whether against the
Company, in the name of the Company or otherwise, arising out of or
relating to any acts or omissions of the Company, or any security holder
or any of their officers, directors, agents, affiliates, associates,
employees or controlling persons (including without limitation any
controversy or claim relating to a purchase or sale of the Note) shall be
settled by arbitration under the Federal Arbitration Act in accordance
with the commercial arbitration rules of the American Arbitration
Association (“AAA”) and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. Any
controversy or claim brought by the Company against the Subscriber,
whether in his capacity as present or former security holder of the
Company in or against any of the Subscriber’s officers, directors, agents,
affiliates, associates, employees or controlling persons shall also be
settled by arbitration under
the
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Federal
Arbitration Act in accordance with the commercial arbitration rules of the
AAA and judgment rendered by the arbitrators may be entered in any court
having jurisdiction thereof. In arbitration proceedings under this
Paragraph 5, the parties shall be entitled to any and all remedies that
would be available in the absence of this Paragraph 5 and the arbitrators,
in rendering their decision, shall follow the substantive laws that would
otherwise be applicable. This Paragraph 5 shall apply, without
limitation, to actions arising in connection with the offer and sale of
the Notes contemplated by this Agreement under any Federal or state
securities laws.
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5.2
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The
arbitration of any dispute pursuant to this Paragraph 5 shall be held in
New York, N.Y., where the principal business of the Company is located or
in such other location as the Company
designates.
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5.3
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Notwithstanding
the foregoing in order to preserve the status quo pending the resolution
by arbitration of a claim seeking relief of an injunctive or equitable
nature, any party, upon submitting a matter to arbitration as required by
this Paragraph 5, may simultaneously or thereafter seek a temporary
restraining order or preliminary injunction from a court of competent
jurisdiction pending the outcome of the
arbitration.
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5.4
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This
Paragraph 5 is intended to benefit the security holders, agents,
affiliates, associates, employees and controlling persons of the Company,
each of whom shall be deemed to be a third party beneficiary of this
Paragraph 5, and each of whom may enforce this Paragraph 5 to the full
extent that the Company could do so if a controversy or claim were brought
against it.
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5.5 Subscriber acknowledges that this
Paragraph 5 limits a number of Subscriber’s rights, including without limitation
(i) the right to have claims resolved in a court of law and before a jury; (ii)
certain discovery rights; and (iii) the right to appeal any
decision.
6. Applicable
Law. This Agreement shall be construed in accordance with and
governed by the laws applicable to contracts made and wholly performed in the
State of New York.
7. Execution in
Counterparts. This Subscription Agreement may be executed in
one or more counterparts.
8. Persons
Bound. This Subscription Agreement shall, except as otherwise
provided herein, inure to the benefit of and be binding on the Company and its
successors and assigns and on each Subscriber and his respective heirs,
executors, administrators, successors and assigns.
9. Entire
Agreement. This Subscription Agreement, when accepted by the
Company, will constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and
understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. This Subscription Agreement may not be modified, changed, waived or
terminated other than by a writing executed by all the parties hereto. No course
of conduct or dealing shall be construed to modify, amend or otherwise affect
any of the provisions hereof.
10. Assignability. The
Subscriber acknowledges that he may not assign any of his rights to or interest
in or under this Agreement without the prior written consent of the Company, and
any attempted assignment without such consent shall be void and without
effect.
11. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid, to the address of each party set forth herein. Any such notice shall be
deemed given when delivered personally, telegraphed, telexed or sent by
facsimile transmission or, if mailed, three days after the date of deposit in
the United States mails.
12. Interpretation. When
the context in which words are used in this Agreement indicates that such is the
intent, singular words shall include the plural, and vice versa, and masculine
words shall include the feminine and neuter genders, and vice
versa. Captions and Headings are inserted for convenience only, are
not a part of this Agreement, and shall not be used in the interpretation of
this Agreement.
13. CERTIFICATION. THE SUBSCRIBER CERTIFIES THAT HE HAS
READ THIS ENTIRE SUBSCRIPTION AGREEMENT AND THAT EVERY STATEMENT MADE BY THE
SUBSCRIBER HEREIN IS TRUE AND COMPLETE.
[SIGNATURE
PAGE FOLLOWS]
SUBSCRIBER
SIGNATURE
The
undersigned, desiring to subscribe for the number of Shares of Incoming, Inc.
(the “Company”) as is set forth below, acknowledges that he has received and
understands the terms and conditions of the Subscription Agreement attached
hereto and that he does hereby agree to all the terms and conditions contained
therein.
IN WITNESS WHEREOF, the
undersigned has hereby executed this Subscription Agreement as of the date set
forth below.
(PLEASE
PRINT OR TYPE)
Number of
Shares _________
x $1.00 Per
Share
Total
Amount of
Subscription: _________
Exact
name(s) of
Subscriber(s): _________________________________
Signature
of Subscriber(s)*:
_________________________________(Signature)
_________________________________
(Print Name)
Date: ____________________
Residence
or Mailing Address:
__________________________________
__________________________________
__________________________________
Telephone
Numbers (include Area Code):
Business:
( ) Home: ( )
Social
Security or Taxpayer
Identification
Number(s): ______________________
