NUGEN MOBILITY, INC SUBSCRIPTION AGREEMENT
XXXXX
MOBILITY, INC
ARTICLE
I
PURCHASE OF
SHARES
1.1 Subscription. The
undersigned (the “Subscriber”) hereby subscribes (the “Subscription”) to
purchase the number of shares of the common stock, $0.001 par value per share
(the “Shares”), of XxXxx Mobility, Inc., a Delaware corporation (the “Company”),
set forth on the Subscriber’s signature page hereto at a purchase price of $0.15
per share. This Subscription shall become effective when it has been
duly executed by the Subscriber and this Subscription agreement (the
“Subscription Agreement”) has been accepted and agreed to by the
Company.
1.2 Receipt of Executive Summary
Acknowledged. The Subscriber acknowledges receipt of a copy of
the Company’s Private Placement Memorandum dated November 9, 2009 and the
related exhibits (the “Summary).
THE
SUBSCRIBER ACKNOWLEDGES THAT THE SUBSCRIBER IS ACQUIRING THE SHARES AFTER
INVESTIGATION OF THE COMPANY AND ITS PROSPECTS AND THAT NO OFFER OR SOLICITATION
HAS BEEN MADE TO THE SUBSCRIBER EXCEPT THROUGH THIS AGREEMENT. THE
SUBSCRIBER FURTHER ACKNOWLEDGES THAT THE SUBSCRIBER IS NOT RELYING UPON ANY
REPRESENTATION MADE BY ANY PERSON EXCEPT AS CONTAINED HEREIN.
1.3 Acceptance of
Subscription. It is understood and agreed that this
Subscription is made subject to the following conditions:
(a) The
Company shall have the right to accept or reject Subscriptions in any order it
shall determine, in whole or in part, for any reason (or for no
reason).
(b) Subscriptions
are not binding on the Company until accepted by the Company. The
Company will refuse any Subscription by giving written notice to the Subscriber
by personal delivery or first-class mail. In its sole discretion, the
Company may establish a limit on the purchase of Shares by a particular
Subscriber.
(c) If
the Company rejects a Subscription or returns Subscription proceeds because the
Company has failed to sell the required minimum number of Shares by the
Termination Date (as defined and described in the Summary), the Company shall
cause all Subscription proceeds to be returned to the Subscriber. The
Subscription will not accrue interest. The right to receive the
return of such Subscription proceeds is not assignable.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES
2.1 Restrictions on
Transferability; Legend.
(a) The
Subscriber understands that the Shares cannot be sold, assigned, transferred,
exchanged, hypothecated or pledged, or otherwise disposed of or encumbered
without the prior written consent of the Company, which may be given or withheld
in its sole and absolute discretion, and that no market will exist for the
resale of any of the Shares. In addition, the Subscriber understands
that the Shares have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), or under any applicable state securities or
“blue sky” laws or the laws of any other jurisdiction, and the Subscriber
further understands that the Shares are being offered and sold in reliance on
exemptions from registration and cannot be resold unless they are so registered
or unless an exemption from registration is available. The Subscriber
understands that the Company is not required and does not plan to register the
Shares.
(b) Any
certificate or other evidence of ownership of the Shares shall bear a legend
substantially as follows:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED UNLESS SUCH TRANSFER IS REGISTERED UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR MEETS THE REQUIREMENTS OF
AN EXEMPTION THEREFROM, THE AVAILABILITY OF WHICH IS CONFIRMED IN AN OPINION OF
COUNSEL, REASONABLY ACCEPTABLE TO THE COMPANY.
2.2 Representations and
Warranties by the Subscriber. The Subscriber represents and
warrants to the Company that:
(a) The
Subscriber is acquiring the Shares for the Subscriber’s own account, as
principal, for investment purposes only and not with any intention to resell,
distribute or otherwise dispose of or fractionalize the Shares, in whole or in
part.
(b) The
Subscriber has been furnished, has carefully read, and has relied solely (except
for information obtained pursuant to paragraph (c) below), on the information
contained in the Private Placement Memorandum and in this Subscription Agreement
and the Subscriber has not received any other offering literature or prospectus
and no representations or warranties have been made to the Subscriber by the
Company, other than the representations set forth in this
Agreement.
(c) The
Subscriber has had an unrestricted opportunity to: (i) obtain additional
information concerning the offering of Shares pursuant to the Private Placement
Memorandum (the “Offering”), the Company, and any other matters relating
directly or indirectly to the Subscriber’s purchase of the Shares; and (ii) ask
questions of, and receive answers from the Company concerning the terms and
conditions of the Offering and to obtain such additional information as may have
been necessary to verify the accuracy of the information contained in the
Private Placement Memorandum. In addition to the foregoing, the Subscriber
acknowledges that the Subscriber has conducted, or been afforded the opportunity
to conduct, an investigation of the Company and has been offered the opportunity
to ask representatives of the Company questions about the Company’s financial
condition and business and that the Subscriber has obtained such publicly
available information as the Subscriber has requested, to the extent the
Subscriber has deemed necessary, to permit the Subscriber to fully evaluate the
merits and risks of an investment in the Company.
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(d) The
Subscriber is capable of evaluating the merits and risks of investing in the
Company, and all information that the Subscriber has provided concerning the
Subscriber, the Subscriber’s financial position and knowledge of financial and
business matters is true, correct and complete. The Subscriber further
acknowledges and understands that the Company will rely on the information
provided by the Subscriber in this Agreement for purposes of complying with
Federal and applicable state securities laws.
(e) The
Subscriber represents that the Subscriber is an “Accredited Investor” as such
term is defined in Rule 501(a)(1-8) of Regulation D promulgated under the
Securities Act of 1933, as amended (the “Securities Act”).
(f) Except
for Xxxxxxxx-Xxxx Securities, the Subscriber has not dealt with a broker in
connection with the purchase of the Shares and agrees to indemnify and hold the
Company harmless from any claims for brokerage or fees in connection with the
transactions contemplated herein.
(g) The
Subscriber has a pre-existing personal or business relationship with the
Company, one of the Company’s officers, or one of the Company’s
affiliates. The Subscriber is not subscribing for the Shares because
of or following any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
by a person other than an authorized representative of the Company.
(h) The
Subscriber is not relying on the Company with respect to any legal, investment
or tax considerations involved in the purchase, ownership and disposition of the
Shares. The Subscriber has relied solely on the advice of, or has consulted
with, in regard to the legal, investment and tax considerations involved in the
purchase, ownership and disposition of a Share, the Subscriber’s own legal
counsel, business and/or investment adviser, accountant and tax
adviser.
(i) The
Subscriber understands that he is purchasing the Shares in the Company without
being furnished any offering literature other than the Private Placement
Memorandum, which may not contain all information that might be material to the
Subscriber’s investment decision and which information cannot be relied on by
the Subscriber as the only representations being made by the Company in
connection with the Offering are those contained in this Agreement.
(j) If
the Subscriber is a corporation, partnership, trust or other entity: (i) it is
authorized and qualified to make an investment in the Company; (ii) the person
signing this Subscription Agreement on behalf of such entity has been duly
authorized by such entity to do so; and (iii) such entity was not organized or
reorganized for the specific purpose of acquiring the Shares.
(k) The
Subscriber acknowledges and is aware of the following:
(i) that
no federal or state agency has made any finding or determination as to the
fairness of offering of Shares for investment or any recommendation or
endorsement of the Shares;
(ii) that
none of the following has ever been represented, guaranteed, or warranted to the
Subscriber by the Company or its agents, or employees or by any other person,
expressly or by implication:
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(1) the
approximate or exact length of time that the Subscriber will be required to
remain as an owner of the Shares;
(2) that
the prior performance of the Company or any of its affiliates, their
respective officers or directors, or their respective associates, agents or
employees, will in any way indicate the predictable results of the ownership of
the Shares or of the Company, or
(3) that
Subscriptions will be accepted in the order in which they are received;
and
(iii) that
the Company shall incur certain costs and expenses and undertake other actions
in reliance upon the irrevocability of the Subscription for the Shares made
hereunder.
(l) The
Subscriber understands the various risks of an investment in the Company and has
carefully reviewed the various risks summarized under “RISK FACTORS” in the Private
Placement Memorandum. The Subscriber understands that such risk factors are not
exclusive of the risks inherent with an investment in the Company.
(m) The
Subscriber is willing and able to bear the economic risks of an investment in
the Company for an indefinite period of time.
(n) The
Subscriber maintains the Subscriber’s domicile, and is not merely a transient or
temporary resident, at the address shown on the signature page of this
Subscription Agreement
(o) The
Subscriber acknowledges that nothing hereunder shall preclude the Company from
seeking and/or procuring additional equity and/or debt financing. The
Subscriber acknowledges that the Company may offer additional securities for
sale to third parties on similar or different terms, and that such sales will
dilute the Subscriber’s interest in the Company unless the Subscriber makes an
additional investment in the Company.
(p) The
Subscriber has received all documents, records, books and other information
pertaining to the Subscriber’s investment in the Company that has been requested
by the Subscriber.
(q) The
Subscriber understands that the price of the Shares offered hereby was
determined by the Company without reference to the assets or book value of the
Company.
2.3 Company’s Representations
and Warranties. The Company represents and warrants to the
Subscriber as follows:
(a)
Organization of the
Company. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of
Delaware.
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(b) Authority. (a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Shares; (b) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required; and (c) this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as
such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) Exemption from Registration;
Valid Issuances. The sale and issuance of the Shares, in
accordance with the terms and on the bases of the representations and warranties
of the undersigned set forth herein, may and shall be properly issued by the
Company to the undersigned pursuant to any applicable federal or state law. When
issued and paid for as herein provided, the Shares shall be duly and validly
issued, fully paid, and non-assessable. Neither the sales of the Shares pursuant
to, nor the Company's performance of its obligations under, this Agreement shall
result in the creation or imposition of any liens, charges, claims or other
encumbrances upon the Shares or any of the assets of the Company. The Shares
shall not subject the Subscriber to personal liability by reason of the
ownership thereof.
(d) No General Solicitation or
Advertising in Regard to this Transaction. Neither the Company
nor any of its affiliates nor any person acting on its or their behalf (a) has
conducted or will conduct any general solicitation (as that term is used in Rule
502(c) of Regulation D) or general advertising with respect to any of the
Shares, or (b) made any offers or sales of any security or solicited any offers
to buy any security under any circumstances that would require registration of
the Shares under the Securities Act.
ARTICLE
III
MISCELLANEOUS
3.1 Indemnity. The
Subscriber agrees to indemnify and hold harmless the Company, and each other
person, if any, who controls any such entity within the meaning of Section 15 of
the Securities Act against any and all loss, liability, claim, damages and
expense whatsoever (including, but not limited to, 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
or based upon any breach or failure by the Subscriber to comply with any
representation, warranty, covenant or agreement made by the Subscriber herein or
in any other document furnished by the Subscriber to any of the foregoing in
connection with this Subscription Agreement.
3.2 Survival of Representations
and Warranties. The representations and warranties of the
Subscriber shall survive the closing and shall be fully enforceable at law or in
equity against the Subscriber and the Subscriber’s heirs and personal
representatives.
3.3 Revocation. The
Subscriber acknowledges and agrees that this Subscription for Shares is
irrevocable, and that such Subscription shall survive the death or disability of
the Subscriber.
3.4 Addresses and
Notices. The address of each party for all purposes shall be
the address set forth on the signature pages annexed hereto, or such other
address of which the other parties have received written notice. Any notice,
demand or request required or permitted to be given or made hereunder shall be
in writing and shall be deemed given or made when delivered in person or three
business days after being sent to such party at such address by registered or
certified mail, return receipt requested.
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3.5 Titles and
Captions. All Article and Section titles or captions in this
Subscription Agreement are for convenience only. They shall not be deemed part
of this Subscription Agreement and do not in any way define, limit, extend or
describe the scope or intent of any provisions hereof.
3.6 Assignability. This
Subscription Agreement is not transferable or assignable.
3.7 Pronouns and
Plurals. Whenever the context may require, any pronoun used
herein shall include the corresponding masculine, feminine or neuter forms. The
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
3.8 Further
Action. The parties shall execute and deliver all documents,
provide all information and take or forbear from taking all such action as may
be necessary or appropriate to achieve the purposes of this Subscription
Agreement. Each party shall bear its own expenses in connection
therewith.
3.9 Applicable
Law. This Subscription Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware without regard
to Delaware conflict of law rules.
3.10 Binding
Effect. This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
administrators, successors, legal representatives, personal representatives,
permitted transferees and permitted assigns. If the Subscriber is more than one
person, the obligation of the Subscriber 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 such
person’s heirs, executors, administrators and successors.
3.11 Integration. This
Subscription Agreement, together with the confidentiality agreement between the
Company and the Subscriber, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes and replaces all prior
and contemporaneous agreements and understandings, whether written or oral,
pertaining thereto. No covenant, representation or condition not expressed in
this Subscription Agreement shall affect or be deemed to interpret, change or
restrict the express provisions hereof.
3.12 Amendment. This
Subscription Agreement may be modified or amended only with the written approval
of all parties hereto.
3.13 Creditors. None
of the provisions of this Subscription Agreement shall be for the benefit of or
enforceable by creditors of any party.
3.14 Waiver. No
failure by any party to insist upon the strict performance of any covenant,
agreement, term or condition of this Subscription Agreement or to exercise any
right or remedy available upon a breach thereof shall constitute a waiver of any
such breach or of any other covenant, agreement, term or condition.
3.15 Rights and
Remedies. The rights and remedies of each of the parties
hereunder shall be mutually exclusive, and the implementation of one or more of
the provisions of this Subscription Agreement shall not preclude the
implementation of any other provision.
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3.16 Counterparts. This
Subscription Agreement may be executed in counterparts and by facsimile, all of
which taken together shall constitute one agreement binding on all the parties
notwithstanding that all the parties are not signatories to the original or the
same counterpart.
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SUBSCRIPTION
AGREEMENT SIGNATURE PAGE FOR INDIVIDUALS
IN WITNESS WHEREOF, the
Subscriber has caused this Agreement to be executed as of the ____ day of
___________________, 2009.
Number of
Shares Subscribed for: ______
Purchase
Price @ $0.15 per Share: $__________
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(Signature
of Subscriber)
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(Signature
of Spouse or Joint Owner, If Any)
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(Print
Name of Subscriber)
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(Print
Name of Spouse or Joint Owner, If Any)
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(Address)
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(Address)
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( )
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( )
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(Telephone
Number)
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(Telephone
Number)
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(Social
Security Number)
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(Social
Security Number)
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(Date)
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(Date)
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Note: If
two purchasers are signing, please check the manner in which ownership is to be
legally held (the indicated manner shall be construed as if written out in full
accordance with applicable laws or regulations):
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______
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JT
TEN: As joint tenants with right of survivorship and not as
tenants in common.
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______
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TEN
COM: As tenants in
common.
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______
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TEN
ENT: As tenants by the
entireties.
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SUBSCRIPTION
AGREEMENT SIGNATURE PAGE FOR CORPORATIONS, TRUSTS, COMPANYS OR RETIREMENT
PLANS
IN WITNESS WHEREOF, the
Subscriber has caused this Agreement to be executed as of the ____ day of
___________________, 2009.
Number of
Shares Subscribed for:
Purchase
Price @ $0.15 per Share $
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(Print
Name of Subscriber)
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By:
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(Signature
of Authorized Person)
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(Print
Name of Authorized Person)
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(Title
of Authorized Person)
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(Address)
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(Telephone
Number)
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(Federal
Employer Identification Number
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or
Other Tax Identification
Number)
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APPROVED AND ACCEPTED in
accordance with the terms of this Subscription Agreement on this ____ day of
_________________, 2009.
XxXxx
Mobility, Inc.
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By:
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