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EXHIBIT 4.6
BLUEGATE CORPORATION
SUBSCRIPTION AGREEMENT
Bluegate Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Gentlemen:
1. General. Bluegate Corporation, a Delaware corporation (the "Company") is
offering for sale 200,000 units (the "Units") at a price of $.50 per Unit. Each
Unit consists of one share of the Company's common stock, and one Class A and
one Class B redeemable common stock purchase warrant (the "Warrants"). The Units
are being offered to the public by the Company on an "all or none" basis in
accordance with the terms set forth in the prospectus dated ___________, 2001
(the "Prospectus"), a copy of which accompanied this Subscription Agreement.
The offering commenced on the date of the Prospectus and will end the
earlier of the receipt and acceptance of subscriptions for 200,000 Units or 90
days after the date of the Prospectus. The terms of the offering are more fully
described in the Prospectus and such terms are incorporated herein in their
entirety. Any capitalized term which is used but is not defined herein but which
is defined in the Prospectus shall have the same meaning as is ascribed to such
term in the Prospectus.
2. Subscription. The undersigned subscriber (the "Subscriber") hereby
irrevocably subscribes for and agrees to purchase from the Company, subject to
the terms and conditions set forth in the Prospectus, the number of Units set
forth on the signature page hereof at a purchase price of Fifty Cents ($0.50)
per Unit (the "Subscription Price"), payable in lawful money of the United
States of America.
3. Payment of Subscription Price. Subscriber shall promptly mail or otherwise
deliver a signed copy of this Subscription Agreement to Corporate Stock
Transfer, Inc., 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
as escrow agent (the "Escrow Agent"), together with a check or wire transfer
payment for the aggregate Subscription Price of the Units subscribed for
hereunder. All checks should be made payable to "Corporate Stock Transfer as
Escrow Agent for Bluegate Corporation", and all wire transfer payments should be
made in accordance with the instructions attached hereto. In the event the
subscription is rejected or reduced, any portion of the aggregate Subscription
Price so deposited which is not to be applied to the purchase of Units will be
promptly refunded. Funds representing the Subscription Price will be deposited
into an escrow account (the "Escrow Account") established at and maintained by
the Escrow Agent with Key Bank National Association, World Trade Center Branch,
0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 as escrow holder (the "Escrow
Holder"). The funds held in the Escrow Account shall be released and delivered
at the times and upon the terms and conditions described in the Prospectus.
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4. Deposit of Securities. After subscriptions for 200,000 Units have been
received and accepted by the Company and subscription funds in the aggregate
amount of $100,000 have been deposited into the Escrow Account, the Company
shall deposit into the Escrow Account a stock certificate and warrant
certificates issued in Subscriber's name for the total number of Units purchased
by Subscriber hereunder. The certificates held in the Escrow Account shall be
released and delivered at the times and upon the terms and conditions described
in the Prospectus.
5. Acceptance of Subscription. Subscriber understands and agrees that the
Company, in its sole discretion, reserves the right to accept or reject this or
any other subscription for Units, in whole or in part, notwithstanding prior
receipt by Subscriber of notice of acceptance of this subscription. The Company
shall have no obligation hereunder until the Company shall execute and deliver
to Subscriber an executed copy of this Subscription Agreement. If this
subscription is rejected in whole, all funds received from Subscriber will be
returned without interest and without penalty, expense or deduction, and this
Subscription Agreement shall thereafter be of no further force or effect. If
this subscription is rejected in part, the funds for the rejected portion of
this subscription will be returned without interest, penalty, expense or
deduction, and this Subscription Agreement shall continue in full force and
effect to the extent this subscription was accepted.
6. Representations and Warranties of Subscriber. Subscriber hereby represents
and warrants to the Company that:
(a) Subscriber has received and carefully reviewed a copy of the
Prospectus; understands and has evaluated the risks of a purchase of the Units,
including the risks set forth in the Prospectus under "Risk Factors;" and
understands that because the Company is a blank check company, the offering of
Units is subject to and is being conducted in accordance with the requirements
of Rule 419 of the Securities Act of 1993, as set forth in the Prospectus under
"Offering Subject to Rule 419 of the Securities Act" and "Plan of Distribution."
(b) Subscriber understands that Rule 419 requires that the funds
representing the Subscription Price and the certificates representing the Units
purchased by Subscriber hereunder will be deposited and held in the Escrow
Account and shall be released only at the times and upon the terms and
conditions described in the Prospectus; that Subscriber will not have access to
the escrowed funds or escrowed securities during an escrow period that may
extend for up to 18 months after the date of the Prospectus; that during the
escrow period, Subscriber will not have the right to transfer the escrowed
securities except by will or pursuant to the laws of intestacy, a qualified
domestic relations order as defined by the Internal Revenue Code of 1986 as
amended, or Title I of the Employee Retirement Income Security Act ("ERISA");
and that if Subscriber exercises the Warrants during the escrow period, the
exercise price paid and the shares purchased will be deposited and held in the
Escrow Account, Subscriber will not have access to the escrowed funds or warrant
shares during the escrow period nor will Subscriber have the right to transfer
the warrant shares during the escrow period except as described in the preceding
clause, and the funds representing the exercise price and the certificates
representing
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the warrant shares shall be released only at the times and upon the terms and
conditions described in the Prospectus.
7. Representations and Warranties of Non U.S. Subscriber. If Subscriber is not
a resident of the United States or one of its possessions or territories,
Subscriber represents and warrants that:
(a) Subscriber is not acquiring the Units for the account or benefit of
any person who is a resident of the United States or one of its possessions or
territories, and Subscriber is a resident of the jurisdiction indicated below
(the "International Jurisdiction"):
[Check as applicable]
[ ] (i) Subscriber is a natural person and is a resident of
___________; or
[ ] (ii) Subscriber is a corporation or partnership which (A)
was organized or incorporated under the laws of ___________; (B) was not formed
by a resident of the United States or one of its possessions or territories; (C)
has no agency or branch located in the United States; and (D) is not acquiring
the Units for the account or benefit of any person who is a resident of the
United States or one of its possessions or territories.
(b) Subscriber is aware of, or has been independently advised with respect
to, the applicable securities laws of the International Jurisdiction, if any,
which would pertain to this subscription.
(c) Subscriber is purchasing the Units pursuant to exemptions from the
prospectus and/or registration requirements under the applicable securities laws
of the International Jurisdiction, or Subscriber is permitted to purchase the
Units under the applicable securities laws of the International Jurisdiction
without the need to rely on any such exemptions.
(d) The applicable securities laws of the International Jurisdiction, if
any, do not require the Company to make any filings or seek any approvals of any
kind whatsoever from any regulatory authority in the International Jurisdiction.
(e) Subscriber will, if requested by the Company, deliver to the Company a
certificate or opinion of local counsel from the International Jurisdiction
which confirms the matters referred to in subparagraphs (b) and (c) above to the
reasonable satisfaction of the Company.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to Subscriber that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware.
(b) The Company has full corporate power and authority to enter into this
Agreement. This Subscription Agreement has been duly authorized and, when
executed and delivered by the Company, will constitute a valid and binding
agreement of the Company.
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9. Escrow Agreement. The Escrow Agent has established and agreed to maintain,
at the Company's expense, the Escrow Account with the Escrow Holder pursuant to
an Escrow Agreement among the Company, the Escrow Agent and the Escrow Holder, a
copy of which is on file at the offices of the Escrow Agent.
10. Miscellaneous.
(a) Any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing and shall be
validly given or made to another party if given by personal delivery, telex,
facsimile, telegram or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice, demand or
other communication is given by personal delivery, telex, facsimile or telegram,
service shall be conclusively deemed made at the time of receipt. If such
notice, demand or other communication is given by mail, such notice shall be
conclusively deemed given forty-eight (48) hours after the deposit thereof in
the United States mail addressed to the Company at its principal executive
office or to Subscriber at the address set forth on the signature page below (or
to such other address as the party shall have furnished in writing in accordance
with the provisions hereof).
(b) This Subscription Agreement may be amended only by a writing executed
by all parties.
(c) This Subscription Agreement is not transferable or assignable by
Subscriber.
(d) All pronouns contained herein and any variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the parties hereto may require.
(e) This Subscription Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
(f) Delivery of an executed counterpart of this Subscription Agreement by
telefacsimile transmission shall be equally as effective as delivery of an
executed hard copy of the same. Any party delivering an executed counterpart of
this Subscription Agreement by telefacsimile transmission shall also deliver an
executed hard copy of the same, but the failure by such party to deliver an
executed hard copy shall not affect the validity, enforceability and binding
effect of this Subscription Agreement.
(g) This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflicts of laws principles.
(h) This Subscription Agreement does not constitute an offer to sell or a
solicitation of any offer to buy any securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
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ALTERNATIVE SIGNATURE PAGES FOLLOW
Subscriber should complete and sign one of the following signature pages.
One signature page is for use by individuals and the other is for use by
entities (e.g., corporation or partnership).
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Bluegate Corporation
Offering of Units Consisting of Shares of Common Stock and
Class A and Class B Redeemable Common Stock Purchase Warrants
(Signature Page for Subscription by Entities)
Number of Units subscribed for: ______________
Aggregate Subscription Price for Units subscribed for: $________
(Xxxxx print or type all information exactly as you wish it to appear on the
Company's records)
________________________________________________________________________________
Name of Subscriber
________________________________________________________________________________
Principal Office Address
________________________________________________________________________________
Mailing Address (if different from above)
________________________________________________________________________________
Telephone: (Business) (Facsimile)
The undersigned signatory certifies that he or she has full power and authority
to execute this Subscription Agreement on behalf of Subscriber and that the
purchase of Units has been duly authorized and is not prohibited by the
governing instrument of Subscriber.
DATED: ____________, 2001 _____________________________________
Name of Subscriber
By: _________________________________
(signature)
_____________________________________
(printed name and title of signatory)
ACCEPTED BY:
Bluegate Corporation
By: _____________________________ Dated: ________________, 2001
Title: ____________________
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Bluegate Corporation
Offering of Units Consisting of Shares of Common Stock and
Class A and Class B Redeemable Common Stock Purchase Warrants
(Signature Page for Subscription by Individuals)
Number of Units subscribed for: _________
Aggregate Subscription Price for Units subscribed for: $_________
(Xxxxx print or type all information exactly as you wish it to appear on the
Company's records)
________________________________________________________________________________
Name(s) of Subscriber(s)
________________________________________________________________________________
Residence Address
________________________________________________________________________________
Mailing Address (if different from above)
________________________________________________________________________________
Telephone: (Business) (Facsimile) (Residential)
DATED: ____________, 2001
___________________________________________________
(Signature of Subscriber)
___________________________________________________
(Signature of Subscriber)
ACCEPTED BY:
Bluegate Corporation
By: ______________________________ Dated: ________________, 2001
Title: _________________________
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