1
EXHIBIT 4.3
SOLUTIONSAMERICA, INC.
SUBSCRIPTION AGREEMENT
(COMMON STOCK)
SolutionsAmerica, Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned subscriber or subscribers (hereinafter the "Investor")
has received and read the confidential Term Sheet regarding the opportunity for
investment in Solutions America, Inc., a Delaware corporation (the
"Corporation").
The undersigned hereby subscribes for the purchase of the number of
shares of Common Stock, $.001 par value per share (the "Shares"), that
corresponds to the amount of the investment as set forth on the signature page
to this Subscription Agreement. The Shares hereby subscribed for are to be
issued by the Corporation in connection with the offer and sale of 200,000
Shares of common stock at a purchase price of $1.00 per Share and 250,000
warrants (the "Offering"). The undersigned understands that the Shares are being
offered for sale without registration under the Securities Act of 1933, as
amended (the "Securities Act"), or state securities laws in reliance upon
exemptions contained therein and rules and regulations promulgated thereunder,
and that such reliance is based in part upon the representations, warranties,
and covenants set forth herein.
1. Subscription. Subject to the terms and conditions of this
subscription agreement (the "Subscription Agreement"), the Investor hereby
irrevocably subscribes for and agrees to invest the amount indicated on the
signature page hereof in the Corporation and hereby tenders this Subscription
Agreement, together with a check in such amount, payable to the order of
"SolutionsAmerica, Inc.". The Investor agrees that this subscription shall be
irrevocable and shall survive the death or disability of the Investor. The
Investor understands that if this subscription is not accepted, in whole or in
part, funds received by the Corporation pursuant hereto will be returned to the
Investor without interest.
2. Acceptance of Subscription. The Investor acknowledges that the
Corporation has the right to accept or reject this subscription, in whole or in
part, for any reason, and that this subscription shall be deemed to be accepted
by the Corporation only when it is signed on its behalf. This Subscription
Agreement will either be accepted or rejected, in whole or in part. The Investor
agrees that subscriptions need not be accepted in the order in which they are
received. Upon rejection of this Subscription Agreement for any reason, all
items and funds tendered with this Subscription Agreement shall be returned to
the Investor without deduction for any fee, commission or expense, and this
Subscription Agreement shall be deemed to be null and void and of no further
force or effect.
2
3. Representations, Warranties and Covenants of the Investor. The
Investor hereby represents and warrants to and covenants with the Corporation as
follows:
(a) The Investor recognizes that an investment in the Corporation
involves a high degree of risk. The Investor further recognizes that the
Corporation has a very limited financial and operating history.
(b) The Investor has been advised that (i) there will be no
market for investment made in the Corporation and (ii) it may not be possible to
readily liquidate this investment.
(c) The Investor's overall commitment to investments which are
not readily marketable is not disproportionate to its net worth; its investment
in the Corporation will not cause such overall commitment to become excessive;
and it can afford to bear the loss of its entire investment.
(d) The Investor has adequate means of providing for its current
needs and personal contingencies and has no need for liquidity in its investment
in the Corporation.
(e) The Investor satisfies any special suitability or other
applicable requirements of its state or other jurisdiction of residence and/or
the state or other jurisdiction in which the transaction occurs.
(f) The Investor has received and reviewed carefully the Term
Sheet provided to the Investor and all attachments thereto. Except as set forth
in the Term Sheet, no representations or warranties have been made to the
Investor by the Corporation or any agent, officer, employee or affiliate, and in
entering into this transaction the Investor is not relying upon any information
other than that contained in such documents and the results of its own
independent investigation.
(g) The Investor has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of an
investment in the Corporation.
(h) The Investor confirms that all documents, records, and books
pertaining to its proposed investment in the Corporation which it requested to
be made available to it have been made so available.
(i) The Investor has had an opportunity to ask questions of and
receive answers from officers or representatives of the Corporation concerning
the terms and conditions of this investment, and all such questions have been
answered to its full satisfaction.
(j) The Investment for which the Investor hereby subscribes will
be acquired for its account for investment and not with the view toward resale
or
2
3
redistribution in a manner that would require registration under the Securities
Act and the Investor does not now have any reason to anticipate any change in
its circumstance.
(k) The Investor understands that no securities administrator of
any state or other jurisdiction has made any finding or determination relating
to the fairness of this investment and that no securities administrator of any
state or other jurisdiction has recommended or endorsed, or will recommend or
endorse, this Offering.
(l) The execution, delivery and performance by the Investor of
the Subscription Agreement are within the powers of the Investor, have been duly
authorized and will not constitute or result in a breach or default under, or
conflict with, any order, ruling or regulation of any court or other tribunal or
of any governmental commission or agency, or any agreement or other undertaking,
to which the Investor is a party or by which the Investor is bound; and, if the
Investor is not an individual, will not violate any provision of the
incorporation papers, bylaws, indenture of trust or partnership agreement, as
applicable, of the Investor. The signatures on the Subscription Agreement are
genuine; and the signatory, if the Investor is an individual, has legal
competence and capacity to execute the same, or, if the Investor is not an
individual, the signatory has been duly authorized to execute the same; and the
Subscription Agreement constitutes the legal, valid and binding obligation of
the Investor, enforceable in accordance with its terms.
4. Indemnification. The Investor acknowledges that it understands the
meaning and legal consequence of the representations, warranties and covenants
in Paragraph 3 hereof and that the Corporation has relied upon such
representations, warranties and covenants, and the Investor hereby agrees to
indemnify and hold harmless the Corporation, its respective officers, directors,
controlling persons, agents and employees, from and against any and all loss,
damage or liability due to or arising out of a breach of any representation,
warranty or covenant made by Investor herein. Notwithstanding the foregoing,
however, no representation, warranty, acknowledgment or agreement made herein by
the Investor shall in any manner be deemed to constitute a waiver of any rights
granted to the Investor under Federal or state securities laws or the securities
laws of any other jurisdiction. All representations, warranties and covenants
contained in this Subscription Agreement and the indemnification contained in
this Paragraph 4 shall survive the acceptance of this subscription.
5. Restrictions on Transfer. The Investor understands the provisions
regarding restrictions on withdrawal and transferability of its investment and
agrees that the following restrictive legend will be placed on all certificates
representing the Shares.
THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW. SUCH SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNTIL THE SAME
HAVE BEEN REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR UNTIL THE CORPORATION HAS RECEIVED AN OPINION OF LEGAL COUNSEL
SATISFACTORY TO
3
4
IT THAT SUCH SHARES MAY LEGALLY BE SOLD OR OTHERWISE TRANSFERRED WITHOUT
SUCH REGISTRATION.
6. Registration and Piggyback Rights. The Company agrees that if it
merges with or is acquired by a publicly traded company or files an initial or
subsequent registration statement with Securities and Exchange Commission, that
the Investor will be permitted, subject only to Underwriter approval, to sell
all or any portion of the acquired shares in any public transaction. The Company
agrees to provide the Investor with such registration documents as may be
required at any time to effect the sale of said securities, provided the Company
is a publicly traded entity.
7. Modification. Neither this Subscription Agreement nor nay provisions
hereof shall be modified, changed, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
8. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the Investor, to the address set forth on the signature
page hereto; or
(b) If to the Corporation, to the address set forth on the first
page of the Subscription Agreement; or such other address as the Investor or the
Corporation may hereafter have advised the other.
8. Binding Effect. Except as otherwise provided herein, this
Subscription Agreement shall be binding upon and inure to the benefits of the
parties hereof and their heirs, executors, administrators, successors, legal
representatives and assigns. If the Investor is more than one person, the
obligation of such Investor shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his, her or its heirs,
executors, administrators, successors, legal representatives and assigns.
9. Entire Agreement. This Subscription Agreement contains the entire
agreement of the parties with respect to the matters set forth herein.
10. Assignability. This Subscription Agreement is not transferable or
assignable by the undersigned.
11. Applicable Law. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
reference to the choice of law principles thereof.
IN WITNESS WHEREOF, this Subscription Agreement has been executed by the
undersigned on this _____ day of ___________________, 2000.
4
5
No. of Shares: 200,000 -----------------------------------------
Xxxx X. Xxxxxxxx
Subscription Amount: $200,000 -----------------------------------------
Title: Trustee
Address: Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx Living Trust
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Tax Identification or
Social Security #:
-----------------
ACCEPTANCE BY THE CORPORATION:
SOLUTIONSAMERICA, INC.
By:
----------------------------------
Title:
--------------------------------
5
