iCURIE, INC. SUBSCRIPTION AGREEMENT
THIS
SUBSCRIPTION AGREEMENT
is made
between iCurie, Inc., a Nevada corporation, (the “Company”), and the undersigned
subscriber (the “Subscriber”).
WHEREAS,
the
Company desires to provide financing for itself by issuing shares of its Series
B Preferred stock, par value $0.001 per share (“Preferred Stock”) at a purchase
price of $1.00 per share, as well as warrants exercisable for additional shares
of common stock (“Common Stock”); and
WHEREAS,
the
Subscriber desires to purchase the number of shares of Preferred Stock and
warrants set forth on the signature page of this Subscription Agreement (this
“Agreement”).
NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants hereinafter set forth,
the parties hereto do hereby agree as follows:
I.
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SUBSCRIPTION
FOR PREFERRED STOCK; REPRESENTATIONS AND WARRANTIES BY THE
SUBSCRIBER
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1.1 Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase the number of shares of Preferred Stock
from the Company set forth on the signature page hereof, and when this Agreement
is accepted and executed by the Company, the Company agrees to issue such
Preferred Stock to the Subscriber at a purchase price of $1.00 per share (the
“Purchase Price”). The Purchase Price will be a minimum of $1,000,000 and a
maximum of $5,000,000 payable in $500,000 increments. Provided the Subscriber
has satisfied all conditions set forth herein, and the Company has accepted
and
executed this Agreement, the Company shall deliver to InterWest Transfer
Company, Inc., the Company’s transfer agent (the “Transfer Agent”), an
irrevocable letter of direction (a “Letter of Direction”) to deliver to
Subscriber a certificate representing the Preferred Stock, a copy of such Letter
of Direction shall be provided to Subscriber, against delivery to the Company
by
Subscriber of the Purchase Price. The Purchase Price is payable by certified
or
cashiers check made payable to the order of the Company or by wire transfer
of
immediately available funds in accordance with wire instructions provided by
the
Company. As further consideration for the Purchase Price and as an inducement
to
Subscriber to enter into this Agreement, together with the issuance of Preferred
Stock in accordance with terms hereof, the Company shall also at such time
issue
and deliver to the Subscriber warrants in the form attached hereto as Exhibit
C
(the “Warrants”) to purchase a number of shares of Common Stock equal to (i)
twenty-five percent (25%) of the number of shares of Preferred Stock purchased
by Subscriber, at a per share exercise price of $1.50; and (ii) twenty-five
percent (25%) of the number of shares of Preferred Stock purchased by
Subscriber, at a per share exercise price of $3.00.
1.2 The
Subscriber recognizes that the purchase of the Preferred Stock and warrants
involves a high degree of risk and is suitable only for persons of adequate
financial means who have no need for liquidity in this investment in that
(i) he may not be able to liquidate his investment in the event of an
emergency; (ii) transferability is extremely limited; and (iii) in the
event of a disposition, he could sustain a complete loss of his entire
investment.
1.3 The
Subscriber acknowledges that he is (i) a qualified investor, as described
herein, to qualify for the purchase of the Preferred Stock and warrants;
(ii) competent to understand and does understand the nature of the
investment; and (iii) able to bear the economic risk of this
investment.
1
1.4 Subscriber
hereby represents and warrants to the Company that Subscriber understands and
agrees that the Preferred Stock and warrants to be issued pursuant this
Agreement has not been registered under the Securities Act of 1933, as amended
(the “Securities Act”) or the securities laws of any state of the U.S. and that
the issuance of the Preferred Stock and warrants is being effected in reliance
upon an exemption from registration afforded either under Section 4(2) of the
Securities Act for transactions by an issuer not involving a public offering
or
Regulation S of the Securities Act for offers and sales of securities outside
the U.S.
1.5 By
its
execution of this Agreement, Subscriber represents and warrants to the Company
as indicated on the signature page to this Agreement, either that:
(a) such
Subscriber is an “Accredited Investor” as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act; or
(b) such
Subscriber is not a “U.S. Person” as defined in Regulation S promulgated under
the Securities Act and as set forth in Exhibit B-1 hereto.
1.6 Subscriber
understands that the Preferred Stock and warrants is being offered and sold
to
such Subscriber in reliance upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Subscriber set
forth in this Agreement, in order that the Company may determine the
applicability and availability of the exemptions from registration of the
Preferred Stock on which the Company is relying.
1.7 If
Subscriber indicates that it is not a U.S. person on the signature page to
this
Agreement, Subscriber further makes the representations and warranties to the
Company set forth on Exhibit B-2 hereto.
1.8 The
Subscriber acknowledges that he has significant prior investment experience,
including investment in non-listed and non-registered securities. The Subscriber
has a sufficient net worth to sustain a loss of its entire investment in the
Company in the event such a loss should occur. The Subscriber’s overall
commitment to investments which are not readily marketable is not excessive
in
view of the Subscriber’s net worth and financial circumstances and the purchase
of the Preferred Stock and warrants will not cause such commitment to become
excessive. The Subscriber recognizes the highly speculative nature of this
investment.
1.9 The
Subscriber: (i) if a natural person, represents that the Subscriber has
reached the age of twenty-one (21) and has full power and authority to execute
and deliver this Subscription Agreement and all other related agreements or
certificates and to carry out the provisions hereof and thereof; (ii) if a
corporation, partnership, or limited liability company or partnership, or
association, joint stock company, trust, unincorporated organization or other
entity, represents that such entity was not formed for the specific purpose
of
acquiring the Preferred Stock and warrants, such entity is duly organized,
validly existing and in good standing under the laws of the state of its
organization, the consummation of the transactions contemplated hereby is
authorized by, and will not result in a violation of state law or its charter
or
other organizational documents, such entity has full power and authority to
execute and deliver this Agreement and all other related agreements or
certificates and to carry out the provisions hereof and thereof and to purchase
and hold the securities constituting the Preferred Stock and warrants, the
execution and delivery of this Agreement has been duly authorized by all
necessary action, this Agreement has been duly executed and delivered on behalf
of such entity and is a legal, valid and binding obligation of such entity;
or
(iii) if executing this Agreement in a representative or fiduciary
capacity, represents that it has full power and authority to execute and deliver
this Agreement in such capacity and on behalf of the subscribing individual,
xxxx, partnership, trust, estate, corporation, or limited liability company
or
partnership, or other entity for whom the Subscriber is executing this
Agreement, and such individual, partnership, xxxx, trust, estate, corporation,
or limited liability company or partnership, or other entity has full right
and
power to perform pursuant to this Agreement and make an investment in the
Company, and represents that this Agreement constitutes a legal, valid and
binding obligation of such entity. The execution and delivery of this Agreement
will not violate or be in conflict with any order, judgment, injunction,
agreement or controlling document to which the Subscriber is a party or by
which
it is bound.
2
1.10 The
Subscriber hereby represents that the Subscriber and the Subscriber’s attorney,
accountant, purchaser representative and/or tax advisor, if any (collectively,
“Advisors”) have reviewed the contents of all filings made by the Company
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and Securities Act, (collectively, the “SEC filings”), including, without
limitation, the risk factors contained therein; and that the Subscriber and
his
Advisors have been afforded the opportunity to ask questions of and receive
answers from duly authorized officers or other representatives of the Company
and the Placement Agent concerning the terms and conditions of this offering,
prior to the execution of this Agreement and all such questions have been
answered to the full satisfaction of the Subscriber and its Advisors, if
any.
1.11 The
Subscriber hereby acknowledges that the offering of the shares of Preferred
Stock and warrants has not been filed with or reviewed by the Securities and
Exchange Commission (the “SEC”) because of the Company’s represen-tations that
this is intended to be a nonpublic offering pursuant to Section 4(2) and
Rule 506 of Regulation D and/or that the offer and sale of the Preferred Stock
are outside the U.S. pursuant to Regulation S promulgated under the Securities
Act. The Subscriber represents that the shares of Preferred Stock and warrants
are being purchased for his own account, for investment and not for distribution
or resale to others. The Subscriber agrees that he will not sell, transfer
or
otherwise dispose of any of the shares of Preferred Stock and warrants unless
they are registered under the Securities Act or unless an exemption from such
registration is available.
1.12 The
Subscriber understands that the shares of Preferred Stock and warrants have
not
been registered under the Securities Act by reason of a claimed exemption under
the provisions of the Securities Act which depends, in part, upon his investment
intention. The Subscriber realizes that, in the view of the SEC, a purchase
now
with an intent to resell would represent a purchase with an intent inconsistent
with his representation to the Company, and the SEC might regard such a sale,
transfer or disposition as a deferred sale to which the exemption is not
available.
1.13 The
Subscriber consents that the Company may, if it desires, permit the transfer
of
the shares of Preferred Stock or warrants by the Subscriber out of his name
only
when his request for transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that the proposed sale, transfer or disposition
does
not result in a violation of the Securities Act or any applicable state “blue
sky” laws (collectively, “Securities Laws”).
1.14 The
Subscriber consents to the placement of a legend on the certificates evidencing
the shares of Preferred Stock stating that they have not been registered under
the Securities Act and setting forth or referring to the restrictions on the
sale, transfer or disposition thereof. The Subscriber is aware that the Company
will make a notation in its appropriate records with respect to the restrictions
on the sale, transfer or disposition of the shares of Preferred Stock and
warrants.
1.15 The
Subscriber acknowledges and agrees that the Company is relying on the
Subscriber’s representations contained in this Agreement and the related
subscription documents in determining whether to accept this subscription.
The
Subscriber hereby agrees that the Company reserves the unrestricted right to
reject or limit any subscription, to close the offer at any time, and/or to
request additional information from the Subscriber.
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1.16 The
Subscriber represents and warrants that all representations made by the
Subscriber hereunder are true and correct in all material respects as of the
date of execution hereof, and the Subscriber covenants that until the closing
on
the shares of Preferred Stock subscribed for he shall inform the Company
immediately of any changes in any of the representations provided by the
Subscriber hereunder.
1.17 The
Subscriber is unaware of, is in no way relying on, and did not become aware
of
the offering of the Preferred Stock and warrants through or as a result of,
any
form of general solicitation or general advertising including, without
limitation, any article, notice, advertisement or other communication published
in any newspaper, magazine or similar media or broadcast over television, radio
or over the Internet, in connection with the offering and sale of the Preferred
Stock and warrants and is not subscribing for Preferred Stock and warrants
and
did not become aware of the offering of the Preferred Stock and warrants through
or as a result of any seminar or meeting to which the Subscriber was invited
by,
or any solicitation of a subscription by, a person not previously known to
the
Subscriber in connection with investments in securities generally.
1.18 The
Subscriber has taken no action which would give rise to any claim by any person
for brokerage commissions, finders’ fees or the like relating to this Agreement
or the transactions contemplated hereby.
1.19 The
Subscriber has adequate means of providing for such Subscriber’s current
financial needs and foreseeable contingencies and has no need for liquidity
of
the investment in the Preferred Stock and warrants for an indefinite period
of
time.
1.20 The
Subscriber is aware that an investment in the Preferred Stock and warrants
involves a number of very significant risks and has carefully read and
considered the matters set forth in the SEC filings.
1.21 The
Subscriber acknowledges that any estimates or forward-looking statements or
financial targets included in the SEC filings were prepared by the Company
in
good faith, but that the attainment of any such targets, estimates or
forward-looking statements cannot be guaranteed by the Company and should not
be
relied upon.
1.22 No
oral
or written representations have been made, or oral or written information
furnished, to the Subscriber or its Advisors, if any, in connection with the
offering of the Preferred Stock and warrants which are in any way inconsistent
with the information contained in the SEC filings.
1.23 The
Subscriber acknowledges that, as a result of the transactions contemplated
hereby, Subscriber may in the future become subject to certain provisions of
the
Exchange Act and that as a result thereof, may be required to make certain
filings with the SEC relating to the Company and the Preferred Stock, and
Subscriber hereby agrees to fully comply with any such provisions.
1.24 Within
five days after receipt of a request from the Company, the Subscriber shall
provide such information and deliver such documents as may reasonably be
necessary to comply with any and all laws and ordinances to which the Company
is
subject.
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1.25 The
Subscriber acknowledges that due to anti-terrorism and anti-money laundering
regulations, the Company, and/or any other manager, officer, employee or agent
acting on behalf of the Company may require further documentation verifying
the
Subscriber’s identity and the source of funds used to purchase an the Preferred
Stock subscribed for hereby before this Subscription Agreement can be processed
or accepted. To comply with applicable U.S. legislation and regulations,
including but not limited to the International Anti-Money Laundering and
Financial Anti-Terrorism Abatement Act of 2001 (Title III of the USA
PATRIOT Act), the Subscriber agrees that all payments by the Subscriber to
the
Company and all distributions to the Subscriber from the Company will only
be
made in the Subscriber’s name and to and from a bank account of a bank based or
incorporated in or formed under the laws of the United States or a bank that
is
not a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31
U.S.C. § 5311 et seq.), as amended, and the regulations promulgated
thereunder by the U.S. Department of the Treasury, as such regulations may
be
amended from time to time. The Subscriber further agrees to provide the Company
with necessary information in connection with the Company’s compliance
procedures with respect to anti-terrorism and anti-money laundering regulations
prior to the Closing Date. Such information may include, but is not limited
to,
the name, address, telephone number, date of birth, and Social Security or
taxpayer identification number of any such individual person, or of the
beneficial owners of any entity, if Subscriber is an entity. Identity may be
verified using a current valid passport or other such current valid
government-issued identification (e.g., a driver’s license). In addition, the
Subscriber certifies that, to the Subscriber’s knowledge, neither the Subscriber
nor any person directly or indirectly controlling or owning any interest in
the
Subscriber is identified as a specially designated national or blocked person,
or as affiliated with any such person, entity or organization on any list
maintained by governmental authorities relating to anti-terrorism or anti-money
laundering, including but not limited to lists maintained by the United States
Treasury Department’s Office of Foreign Asset Control.
1.26 The
Subscriber understands that the information contained herein may be disclosed
to
the United States Government by the Company as may be required by applicable
laws.
1.27 The
Subscriber has never filed for or been involved as a debtor in bankruptcy
proceedings and there are no suits pending or judgments outstanding against
it
which, in one case or in the aggregate, could impair its ability to remain
the
direct holder of the Preferred Stock.
1.28 Subscriber
represents that the address furnished by Subscriber on the signature page hereto
is Subscriber’s principal residence if Subscriber is an individual, or
Subscriber’s principal business address if Subscriber is an entity.
1.29 Subscriber
acknowledges and agrees that the indication provided by Subscriber on the
signature page hereto as to whether such Subscriber is an Accredited Investor
(and the basis for such indication) or not a U.S. person constitute
representations and warranties of the Subscriber under this
Agreement.
II.
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REPRESENTATIONS
AND WARRANTIES BY THE
COMPANY
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As
of the
date of the Company’s acceptance and execution of this Subscription Agreement,
the Company represents and warrants to the Subscriber as follows:
2.1 The
SEC
filings do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light
of
the circumstances in which they were made, not misleading. If at any time prior
to the completion of the transaction contemplated herein or other termination
of
this Subscription Agreement any event shall occur as a result of which it might
become necessary to amend or supplement the SEC filings so that they do not
include any untrue statement of any material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances then existing, not misleading, the Company shall promptly notify
the Subscriber and if such amendments or supplements are not publicly available,
shall supply the Subscriber with such amendments or supplements or Supplemental
Information (as defined in Section 3.4) correcting or updating such statement
or
omission.
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2.2 The
Company is a corporation duly organized, validly existing and in good standing
under the laws of Nevada, and has all requisite corporate power and authority
to
own and lease its properties, to carry on its business as currently conducted,
to execute and deliver this Agreement and to carry out the transactions
contemplated by this Agreement. The Company is duly licensed or qualified to
do
business as a foreign corporation in each jurisdiction in which the conduct
of
its business or ownership or leasing of is properties requires it to be so
qualified, except where the failure to be so qualified would not have a material
adverse effect on the business, assets, financial condition or results of
operations of the Company taken as a whole (a “Material Adverse
Effect”).
2.3 The
authorized, issued and outstanding capital stock of the Company prior to the
consummation of the transactions contemplated hereby is as set forth in the
SEC
filings. All issued and outstanding shares of Preferred Stock of the Company
are
validly issued, fully paid and nonassessable and have not been issued in
violation of the preemptive rights of any securityholder of the Company. All
shares of Preferred Stock issued to Subscriber pursuant to this Subscription
Agreement and warrants, when issued, will be fully paid and
nonassessable.
2.4 Except
as
disclosed in the SEC filings, there are not, nor shall there be immediately
prior to the Closing, any outstanding warrants, options, agreements, convertible
or exchangeable securities, preemptive rights to subscribe for or other
commitments pursuant to which the Company or any of its Subsidiaries is, or
may
become, obligated to issue any shares of its capital stock or other securities
of the Company and this Agreement.
2.5 The
historical financial statements included in the SEC filings are: (i) in
accordance with all books, records and accounts of the Company; (ii) are true,
correct and complete in all material respects; and (iii) have been prepared
in
accordance with generally accepted accounting principles.
2.6 Except
as
disclosed in the SEC filings, each of the Company and its subsidiaries has
good
and marketable title to their respective properties and assets, free and clear
of all liens, charges, encumbrances or restrictions (“Liens”), except Liens for
the payment of current taxes which are not yet delinquent, Liens which arise
in
the ordinary course of business and Liens which will not result in a Material
Adverse Effect. To the Company’s knowledge, all of the leases and subleases
under which the Company or any subsidiary is the lessor or sublessor of
properties or assets or under which the Company or any subsidiary holds
properties or assets as lessee or sublessee are in full force and effect, and
to
the Company’s knowledge, neither the Company (nor any subsidiary) is in default
in any material respect with respect to any of the terms or provisions of any
of
such leases or subleases, and to the Company’s knowledge, no material claim has
been asserted by anyone adverse to rights of the Company or any subsidiary
as
lessor, sublessor, lessee or sublessee under any of the leases or subleases
mentioned above, or affecting or questioning the right of the Company or any
subsidiary to continued possession of the leased or subleased premises or assets
under any such lease or sublease in each case other than any non-effectiveness,
default or claim which could not be reasonably expected to cause a Material
Adverse Effect. The Company and each subsidiary owns or leases all such
properties as are necessary to their respective operations as now conducted.
2.7 Except
as
set forth in the SEC filings, there is no action, suit, investigation, inquiry
or similar governmental proceeding, claim or proceeding at law or in equity
by
or before any arbitrator, governmental instrumentality or other agency now
pending or, to the knowledge of any of the Company or its subsidiaries,
threatened against the Company or any subsidiary or, to the knowledge of the
Company, any officer or director of the Company or any subsidiary (or basis
therefor known to the Company or any subsidiary), the adverse outcome of which
would have a Material Adverse Effect or that seeks to prevent, enjoin, alter
or
delay the transactions contemplated hereby. Neither the Company nor any
subsidiary is subject to any judgment, order, writ, injunction or decree of
any
federal, state, municipal or other governmental instrumentality, commission,
board, bureau, agency or instrumentality, domestic or foreign or self-regulatory
organization that seeks to prevent, enjoin, alter or delay the transactions
contemplated by this Agreement.
6
2.8 To
the
Company’s knowledge, neither the Company nor any of the subsidiaries is in
breach of, or in default under, any material term or provision of any indenture,
mortgage, deed of trust, lease, note, loan or credit agreement or any other
agreement or instrument evidencing an obligation for borrowed money, or any
other agreement or instrument to which it is a party or by which it or any
of
its properties may be bound or affected, other than any default or breach which
could not reasonably be expected to have a Material Adverse Effect. Neither
the
Company nor any of the subsidiaries is in violation of (i) any provision of
its
charter or Bylaws or (ii) any franchise, license, permit, judgment, decree
or
order, or any statute, rule or regulation that, in the case of this clause
(ii),
would, individually or in the aggregate, have a Material Adverse Effect.
2.9 Each
of
the Company and its subsidiaries has filed all U.S. federal, state, local and
foreign tax returns which are required to be filed by each of them and all
such
returns are true and correct in all material respects, except for such failures
to file which could not reasonably be expected to have a Material Adverse
Effect. The Company and each subsidiary has paid all taxes pursuant to such
returns or pursuant to any assessments received by any of them or by which
any
of them are obligated to withhold from amounts owing to any employee, creditor
or third party. The Company and each subsidiary has properly accrued all taxes
required to be accrued and/or paid, except where the failure to accrue would
not
have a Material Adverse Effect. To the knowledge of the Company, the tax returns
of the Company and its subsidiaries are not currently being audited by any
state, local or federal authorities. Neither the Company nor any subsidiary
has
waived any statute of limitations with respect to taxes or agreed to any
extension of time with respect to any tax assessment or deficiency. The Company
has set aside on its books adequate provision for the payment of any unpaid
taxes.
2.10 Neither
the Company nor any subsidiary has received notice of any violation of or
noncompliance with any federal, state, local or foreign, laws, ordinances,
regulations, and orders applicable to its business, which has not been cured,
the violation of, or noncompliance with, which would have a Material Adverse
Effect. To the knowledge of the Company, the Company and each subsidiary has
all
licenses required by every federal, state and local government or regulatory
body for the operation of its business as currently conducted and the use of
its
properties, except where the failure to be so licensed would not have a Material
Adverse Effect. To the knowledge of the Company, all material licenses held
by
the Company are in full force and effect and no violations are or have been
recorded in respect of any license and no proceeding is pending or threatened
to
revoke, modify or limit any thereof.
2.11 The
issuance of the securities pursuant to the terms of this Agreement, have been
duly authorized by the Company’s board of directors and no further consent or
authorization of its board of directors or its stockholders is required by
the
Company and constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as enforceability
may be limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights
generally.
2.12 Except
as
set forth in the SEC filings, no consent, approval, order or authorization
of,
or registration, qualification, designation, declaration or filing with, or
notice to, any court, federal, state or local governmental authority or
regulatory or self regulatory agency or authority or other person on the part
of
the Company or any Subsidiary is required in connection with the issuance of
the
securities or the consummation of the other transactions contemplated by this
Agreement.
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2.13 Neither
the Company nor any subsidiary has taken any steps to seek protection pursuant
to any bankruptcy or reorganization law, nor does the Company nor any subsidiary
have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or reorganization proceedings or any actual knowledge
of
any fact which would reasonably lead a creditor to do so.
2.14 No
material labor dispute exists or, to the knowledge of the Company, is threatened
with respect to any of the employees of the Company or its subsidiaries.
III.
|
TERMS
AND CONDITIONS OF OFFERING
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3.1 If
not
previously accepted by the Company, this Agreement will terminate on Monday,
October 14, 2005 at 5:00pm Central Standard Time.
3.2 The
Subscriber hereby agrees to purchase the number of shares of Preferred Stock
from the Company set forth upon the signature page hereof.
3.3 This
Subscription Agreement shall be effective only to the extent, and when and
if,
accepted and executed by the Company, and may be accepted in whole or in part
in
the sole discretion of the Company. The Company shall evidence its acceptance
of
the Subscriber’s subscription by executing a duplicate original or a copy of
this Subscription Agreement and delivering the same to the Subscriber.
3.4 Prior
to
the acceptance of this Subscription, the Company will provide to Subscriber
copies of any material information regarding the Company not included in the
SEC
filings, as well as any additional information deemed necessary or advisable
by
the Company (“Supplemental Information”). Upon receipt of the Supplemental
Information, if any, Subscriber may be required to confirm its subscription
and
agreements contained herein. Such Supplemental Information, if any, shall update
the representations and warranties of the Company contained herein.
3.5 The
Company hereby agrees that all material non-public information, whether or
not
disclosed to the Subscribers in connection with this Agreement, will be
disclosed publicly to the extent required by applicable federal securities
laws.
3.6 Subscriber
hereby acknowledges that, in the course of negotiating the terms of this
Agreement and in the course of being a stockholder of the Company, Subscriber
may have been, and from time to time may be, furnished with material, non-public
information regarding the Company, its business, assets, plans or financial
circumstances (collectively, the “Information”). Subscriber agrees that
Subscriber will not:
(a) use
any
information in any manner which would be competitive with the Company’s business
or which would violate the Securities Act or the Exchange Act; or
(b) without
the Company’s written permission, disclose or publicize any Information to any
person, except as required by law or unless and until such Information has
become generally known to the public other than through Subscriber.
3.7 Subscriber
hereby acknowledges that Subscriber’s obligation under Section 3.6 above shall
continue as long as Subscriber holds any securities of the Company and for
a
period of two (2) years thereafter, regardless of the termination of any other
parts of this Agreement or the sale by Subscriber of any or all of such
securities.
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IV.
|
NOTICES
TO SUBSCRIBERS
|
4.1 THE
PREFERRED STOCK AND WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUCH
LAWS. THE PREFERRED STOCK AND WARRANTS HAVE NOT BEEN APPROVED OR DISAPPROVED
BY
THE SEC, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR
HAVE
ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS
AGREEMENT OR THE ACCURACY OR ADEQUACY OF THE SEC FILINGS. ANY REPRESENTATION
TO
THE CONTRARY IS UNLAWFUL.
4.2 THE
PREFERRED STOCK AND WARRANTS 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. SUBSCRIBERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED
TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
V.
|
MISCELLANEOUS
|
5.1 The
Subscriber hereby acknowledges that the Company is relying on the
representations and warranties made by the Subscriber herein.
5.2 Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by registered or certified mail, return receipt requested,
addressed to the Company, c/o iCurie, Inc., Espirito Santo Plaza, 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, with a copy to Xxxxxxx X.
Xxxxx, XXX Xxxxx Xxxxxxx Xxxx Xxxx US LLP, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, and to the Subscriber at his
address indicated on the last page of this Agreement. Notices shall be deemed
to
have been given on the date of mailing, except notices of change of address,
which shall be deemed to have been given when received.
5.3 This
Agreement shall not be changed, modified, or amended except by a writing signed
by the parties to be charged, and this Agreement may not be discharged except
by
performance in accordance with its terms or by a writing signed by the party
to
be charged.
5.4 This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and assigns.
This Agreement sets forth the entire agreement and understanding between the
parties as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among
them.
5.5 This
Agreement and its validity, construction and performance shall be governed
in
all respects by the laws of the State of Nevada, without reference to its rules
and principles governing conflicts of laws.
5.6 This
Agreement may be executed in counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the
same
instrument. Execution and delivery of this Agreement by facsimile transmission
(including the delivery of documents in Adobe PDF format) shall constitute
execution and delivery of this Agreement for all purposes, with the same force
and effect as execution and delivery of an original manually signed copy hereof.
Upon the execution and delivery of this Agreement by the Subscriber, this
Agreement shall become a binding obligation of the Subscriber with respect
to
the purchase of the Preferred Stock and warrants as herein provided, subject
to
Section 3.4.
9
COUNTERPART
SIGNATURE PAGE
IN
WITNESS WHEREOF,
the
undersigned Subscriber has executed this Subscription Agreement on the date
his
signature has been subscribed and sworn to below.
Investor
is a (check all that apply):
_____
An
Accredited Investor
_____
Not
a U.S. Person
If
you
indicated that you are an Accredited Investor, circle each category on Exhibit
A-1 that applies to you.
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
The
shares of Preferred Stock are to be issued in:
|
_______________________________
Print
Name of Subscriber
|
____
individual name
|
Shares
of Preferred Stock
|
____
tenants in the entirety
|
Subscription
price paid herewith:
$
________ (being the number of shares listed
above multiplied by $1.00) |
____
corporation (an officer must sign)
|
_______________________________
Signature
of Investor
|
____
partnership (all general partners must sign)
|
|
____
trust
|
(with
a copy to:)
|
____
limited liability company
|
_______________________________
|
_______________________________
Address
of Subscriber
|
10
ACCEPTANCE
Accepted
as of the ______ day of _______________, 2005 as to _______________ shares
of
Preferred Stock, the Purchase Price for which is $______________, being such
number of shares multiplied by $1.00 as to which this Subscription is accepted,
subject to receipt of the entire Purchase Price in United States Dollars by
certified or cashiers check or by wire transfer of immediately available funds
to the Company at its requested account or accounts and performance of other
closing conditions set forth in this Agreement:
COMPANY: _______________________________
By:_______________________________
Name:
Title:
|
11
EXHIBIT
A
Definition
of “Accredited Investor”
The
term
“accredited investor” means:
1. A
bank as
defined in Section 3(a)(2) of the Securities Act, or a 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; an insurance company as defined in Section 2(13) of the Securities Act;
an
investment company registered under the Investment Company Act of 1940 (the
“Investment Company Act”) or a business development company as defined in
Section 2(a)(48) of the Investment Company 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, if such plan has total assets in excess of US $5,000,000; an employee
benefit plan within the meaning of the Employee Retirement Income Security
Act
of 1974 (“ERISA”), if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or registered investment advisor, or if the
employee benefit plan has total assets in excess of US $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors.
2. A
private
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940.
3. 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 US $5,000,000.
4. A
director or executive officer of the Company.
5. A
natural
person whose individual net worth, or joint net worth with that person’s spouse,
at the time of his or her purchase exceeds US $1,000,000.
6. A
natural
person who had an individual income in excess of US $200,000 in each of the
two
most recent years or joint income with that person’s spouse in excess of US
$300,000 in each of those years and has a reasonable expectation of reaching
the
same income level in the current year.
7. A
trust,
with total assets in excess of US $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by
a
sophisticated person as described in Rule 506(b)(2)(ii) (i.e., 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).
8. An
entity
in which all of the equity owners are accredited investors. (If this alternative
is checked, the Investor must identify each equity owner and provide statements
signed by each demonstrating how each is qualified as an accredited
investor.)
X-0
XXXXXXX
X-0
Definition
of “U.S. Person”
1.“U.S.
person” (as defined in Regulation S) means:
(i) Any
natural person resident in the United States;
(ii) Any
partnership or corporation organized or incorporated under the laws of the
United States;
(iii) Any
estate of which any executor or administrator is a U.S. person;
(iv) Any
trust
of which any trustee is a U.S. person;
(v) Any
agency or branch of a foreign entity located in the United States;
(vi) Any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person;
(vii) Any
discretionary account or similar account (other than an estate or trust) held
by
a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States; and
(viii) Any
partnership or corporation if: (A) organized or incorporated under the laws
of
any foreign jurisdiction; and (B) formed by a U.S. person principally for the
purpose of investing in securities not registered under the Securities Act,
unless it is organized or incorporated, and owned, by accredited investors
(as
defined in Rule 501(a)) who are not natural persons, estates or
trusts.
2. Notwithstanding
paragraph (1) above, any discretionary account or similar account (other than
an
estate or trust) held for the benefit or account of a non-U.S. person by a
dealer or other professional fiduciary organized, incorporated, or (if an
individual) resident in the United States shall not be deemed a “U.S.
person.”
3. Notwithstanding
paragraph (1), any estate of which any professional fiduciary acting as executor
or administrator is a U.S. person shall not be deemed a U.S. person
if:
(i) An
executor or administrator of the estate who is not a U.S. person has sole or
shared investment discretion with respect to the assets of the estate;
and
(ii) The
estate is governed by foreign law.
4. Notwithstanding
paragraph (1), any trust of which any professional fiduciary acting as trustee
is a U.S. person shall not be deemed a U.S. person if a trustee who is not
a
U.S. person has sole or shared investment discretion with respect to the trust
assets, and no beneficiary of the trust (and no settlor if the trust is
revocable) is a U.S. person.
5. Notwithstanding
paragraph (1), an employee benefit plan established and administered in
accordance with the law of a country other than the United States and customary
practices and documentation of such country shall not be deemed a U.S.
person.
B-1-1
6. Notwithstanding
paragraph (1), any agency or branch of a U.S. person located outside the United
States shall not be deemed a “U.S. person” if:
(i) The
agency or branch operates for valid business reasons; and
(ii) The
agency or branch is engaged in the business of insurance or banking and is
subject to substantive insurance or banking regulation, respectively, in the
jurisdiction where located.
7. The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations, and their agencies, affiliates
and pension plans, and any other similar international organizations, their
agencies, affiliates and pension plans shall not be deemed “U.S.
persons.”
B-1-2
NON
U.S. PERSON REPRESENTATIONS
If
Subscriber indicates that it is not a U.S. person, Subscriber further represents
and warrants to the Company as follows (capitalized terms used but not defined
herein have the meanings given under Regulation S):
1. At
the
time of (a) the offer by the Company and (b) the acceptance of the offer by
such
Subscriber, of the Preferred Stock and warrants, such Subscriber was outside
the
United States.
2. No
offer
to acquire the Preferred Stock and warrants or otherwise to participate in
the
transactions contemplated by this Agreement was made to such Subscriber or
its
representatives inside the United States.
3. Subscriber
is not purchasing the Preferred Stock and warrants for the account or benefit
of
any U.S. person, or with a view towards distribution to any U.S. person, in
violation of the registration requirements of the Securities Act.
4. Subscriber
will make all subsequent offers and sales of the Preferred Stock or warrants
either (x) outside of the United States in compliance with Regulation S; (y)
pursuant to a registration under the Securities Act; or (z) pursuant to an
available exemption from registration under the Securities Act. Specifically,
such Subscriber will not resell the Preferred Stock or warrants to any U.S.
person or within the United States prior to the expiration of a period
commencing on the Closing Date and ending on the date that is one year
thereafter (the “Distribution Compliance Period”), except pursuant to
registration under the Securities Act or an exemption from registration under
the Securities Act.
5. Subscriber
is acquiring the Preferred Stock and warrants for such Subscriber’s own account,
for investment and not for distribution or resale to others.
6. Subscriber
has no present plan or intention to sell the Preferred Stock or warrants in
the
United States or to a U.S. person at any predetermined time, has made no
predetermined arrangements to sell the Preferred Stock or warrants and is not
acting as a Distributor of such securities.
7. Neither
Subscriber, its Affiliates nor any Person acting on such Subscriber’s behalf,
has entered into, has the intention of entering into, or will enter into any
put
option, short position or other similar instrument or position in the U.S.
with
respect to the Preferred Stock or warrants at any time after the closing through
the Distribution Compliance Period except in compliance with the Securities
Act.
8. Subscriber
consents to the placement of a restrictive legend on any certificate or other
document evidencing the Preferred Stock or warrants.
9. Subscriber
is not acquiring the Preferred Stock or warrants in a transaction (or an element
of a series of transactions) that is part of any plan or scheme to evade the
registration provisions of the Securities Act.
B-2