Exhibit 10.3
PRIVATE PLACEMENT OFFERING
SUBSCRIPTION AGREEMENT AND QUESTIONNAIRE
THE SECURITIES, INCLUDING THE UNDERLYING SECURITIES, THAT ARE THE
SUBJECT OF THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE LAWS OF ANY
STATE OR OTHER JURISDICTION, SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS THE SALE IS
OTHERWISE EXEMPT FROM REGISTRATION. THE COMPANY MAY REQUEST A WRITTEN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH SALE, PLEDGE OR
HYPOTHECATION, OR OTHER TRANSFER.
AGREEMENT, effective this 13 day of May, 1999, between SAF T LOK
INCORPORATED, a corporation incorporated under the laws of the State of Florida
(the "Company"), and (the "Subscriber").
R E C I T A L S
A. The Company through its agents, desire to provide financing for itself
by selling to accredited investors, Company's 6% Convertible Debentures (the
"Debentures"), in the form annexed hereto as Exhibit A, for an aggregate
purchase price of not more than $2,000,000.00. The interest on the Debenture
shall be payable annually. The Proposed Offering shall consist of the sale of a
6% Convertible Debenture due in two years, unless converted or upon the sale of
all or substantially all of the assets of the Company, or a merger,
consolidation, or acquisition in which the Company is not the survivor. The
interest shall be simple interest, paid annually, and paid either in cash or
stock at the sole discretion of the Company. The Company may redeem or prepay
the Debenture prior to maturity as follows: The Company shall pay the face value
of the Debenture plus all accrued interest at the date of prepayment or
redemption and in the event the prepayment or redemption occurs within ninety
(90) days from the date of issuance of the Debenture then the Company shall also
pay the Debenture holder
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Page 1
a premium of ten (10%) of the face value at time of redemption or prepayment. In
the event the prepayment or redemption occurs after ninety days but within one
hundred eighty (180) days from the date of issuance of the Debenture then the
Company shall pay the debenture holder a premium of twenty (20%) of the face
value at time of redemption or prepayment, plus all accrued interest. The
Debenture will be convertible at a 25% discount to the market price at the time
of conversion, with a provision providing a floor conversion price of Fifty Cent
($0.50) and a ceiling conversion price of Two Dollars ($2.00). The securities
underlying the Debenture shall be registered by an appropriate registration
statement filed no later than ninety (90) days from the later of date of (i) the
closing of the Offering contemplated herein, or (ii) June 29, 1999 if the
offering contemplated herein is extended to such date.
B. Purchase of the Debentures involve significant investment risks. The
Debentures are being offered only to accredited investors as such term is
defined under Regulation D of the Securities and Exchange Commission ("SEC").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Purchase of Debentures.
The Company agrees to sell to the Subscriber, and the Subscriber
agrees to purchase from the Company, Debentures for the aggregate purchase price
set forth in the signature page hereof.
2. Payment of Purchase Price.
Concurrently with the delivery of this Agreement, the Subscriber has
delivered a check or made a wire transfer in the amount set forth in the
signature page hereof in payment of the purchase price for the Debentures.
Checks shall be made payable, or wired funds shall be sent, Chase Manhattan
Bank, New York, (the "Escrow Agent") AC#000-0-000000, Escrow Incoming Wire
Account, Further Credit: SAF T LOK INCORPORATED, Inc., Attn: Xxxxx Xxxxxx, such
funds, and the disposition thereof, to be subject to the terms of an Escrow
Agreement dated April 20, 1999, by and among the Escrow Agent, the Company and
Alexander, Wescott & Co., Inc. The Parties hereto acknowledge that a copy of
such Escrow Agreement has been received by the Subscriber.
3. Representations and Warranties of the Company.
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The Company represents and warrants to the Subscriber as follows:
(a) The Debentures will be, when issued, delivered and paid for in
accordance with this Agreement, duly and validly issued, fully paid and
non-assessable; and all corporate action required to be taken by the Company
prior to the issuance and sale of the Debentures and underlying stock upon any
conversion, to qualified subscribers has been or, prior to the sale thereof,
will have been taken.
(b) The authorized capital stock of the Company consists of
20,000,000 shares of Common Stock, par value $0.01 per share, of which
13,749,957 shares of such Common Stock are issued and outstanding.
(c) The Company is duly incorporated, validly existing and in good
standing as a corporation under the laws of the State of FLORIDA.
(d) The Company is duly qualified to do business and is in good
standing in each jurisdiction in which its activities or its ownership or
leasing of property requires such qualification, other than those jurisdictions
in which the failure to so qualify would not have a material adverse effect on
the business, operations or prospects or conditions, financial or otherwise, of
the Company.
(e) This Agreement has been duly and validly authorized and executed
and delivered by and on behalf of the Company and constitutes a valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, subject to any applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditor's rights generally and to
general principles of equity.
(f) No consent, approval authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the Company,
or any of its affiliates is required for execution of this Agreement, including,
without limitation, issuance and sale of the Debenture and the issuance of the
Shares upon any conversion of the Debenture or the performance of obligations
hereunder.
(g) Other than as reported on forms 10-KSB and 10-QSB, there are no
actions, investigations, statutes, rules or regulations or other proceedings of
any nature in effect or pending or to the Company's knowledge threatened, as the
case may be, which, either in any case or in the aggregate, if decided
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adversely, might reasonably be expected to result in any material adverse
change, financial or otherwise, in the assets, properties, condition, business,
earnings or prospects of the Company or which question the validity of the
capital stock of the Company, this Agreement or any action taken or to be taken
by the Company pursuant to or in connection with this Agreement.
(h) The Company's most recent Form 10-KSB and subsequent forms
10-QSB as filed with the U.S. Securities and Exchange Commission (the
"Commission") (collectively, with exhibits thereto, hereinafter referred to as
the "Reports") present fairly the financial position of the Company as of the
respective dates thereof and the results of operations and cash flows for the
respective periods covered thereby and are in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved. Since December 31, 1998, there has been no material adverse change,
financial or otherwise, in the assets, properties, condition, business, earnings
or prospects of the Company.
(i) The Company has filed each tax return which is required to be
filed, or has requested an extension therefor and has paid or otherwise provided
for all taxes shown on such return and all related assessments to the extent
that the same have become due.
(J) All information from the Company which is included in this
Subscription Agreement is accurate and complete to the best knowledge of the
Company and does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
4. Representations and Warranties of the Subscriber.
The Subscriber hereby represents, warrants and acknowledges to the
Company as follows:
(a) Each of the Subscribers and its advisors has received from the
Company such other information concerning its operations, financial condition
and other matters as the Subscriber has requested, and considered all factors
each of the Subscriber and its advisors deems material in deciding on the
advisability of investing in the Securities (such information in writing is,
collectively, the "Other Written Information"). Each of the Subscribers and its
advisors, if any, has been afforded the opportunity to ask questions of the
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Company and have received satisfactory answers to any such inquiries. Neither
such inquiries nor any other due diligence investigation conducted by the
Subscriber and its advisors shall modify, amend or affect the Subscriber's right
to rely on the Company's representations and warranties contained in Section 3
above. The Subscriber acknowledges that, in making the decision to purchase the
Debentures, it has relied solely upon independent investigations made by it and
not upon any representations made by the Company with respect to the Company or
the Debentures, other than those representations set forth in Section 3 hereof.
(b) This Agreement has been executed and delivered by the Subscriber
and is a valid and binding agreement enforceable against the Subscriber in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally; and the Subscriber has
full power and authority necessary to enter into this Agreement and to perform
its obligations hereunder.
(c) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Subscriber is required for execution of this Agreement including, without
limitation, the purchase of the Debentures, or the performance of the
Subscriber's obligations hereunder.
(d) The Subscriber understands that no United States or other
governmental agency has passed on or made any recommendation or endorsement of
the Debentures.
(e) The Subscriber understands that the Debentures are being offered
and sold in reliance upon specific exemptions from the registration requirements
of United States federal and state securities laws and that the Company is
relying upon the truth and accuracy of, and the Subscriber's compliance with,
the representations, warranties, agreements, acknowledgments and understandings
of the Subscriber set forth herein in order to determine the availability of
such exemptions and the eligibility of the Subscriber to acquire the Debentures.
(f) The Subscriber is acquiring the Debentures pursuant to this
Agreement for investment for its own account and not with a view to the
distribution (as such term is used in Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act") thereof.
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(g) The Subscriber realizes that the Debentures are speculative,
illiquid and involve a high degree of risk, including the risks of receiving no
return on the investment and of losing the Subscriber's entire investment in the
Company.
(h) The Subscriber is able to bear the economic risk of investment
in the Debentures including the total loss of such investment.
(i) The Subscriber believes that subscribing for the Debentures
pursuant to the terms of this Agreement is an appropriate and suitable
investment for the Subscriber.
(j) The Subscriber is experienced and knowledgeable in financial and
business matters, and is capable of evaluating the merits and risks of
purchasing securities of the Company.
(k) The Subscriber is a resident of the State of
(l) The Subscriber is an accredited investor" as defined in Rule 501
of Regulation D under the Securities Act and (check all that apply):
___ (i) A natural person whose individual net worth (assets
less liabilities), or joint net worth with his or her spouse, at the
time of purchase, exceeds $1,000,000.
___ (ii) A natural person whose individual income was in
excess of $200,000, or whose joint income with his or her spouse was
in excess of $300,000, each of the two most recent years, and who
has a reasonable expectation of reaching the same income level for
the current year.
___ (iii) A bank, insurance company, registered investment
company, business development company, small business investment
company or employee benefit plan, as such terms are defined in the
Securities Act.
___ (iv) A savings and loan association, credit union, or
similar financial institution or a registered broker or dealer, as
such terms are defined in the Securities Act.
___ (v) A private business development company, as
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defined in the Investment Advisors Act of 1980.
___ (vi) An organization described in Section 501(c)(3) of the
Internal Revenue Code with assets in excess of $5,000,000.
___ (vii) A 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
$5,000,000.
___ (viii) A trust, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess of
$5,000,000.
___ (ix) A director or an executive officer of the Company.
___ (x) An entity in which all of the equity owners are
accredited investors.
___ (xi) A self-directed XXX, Xxxxx, or similar plan of which
the individual directing the investments qualifies as an "accredited
investor" under one or more of items (i)-(x), above. Also check the
item(s) [(i)-(x)] that applies.
The Company reserves the right to request additional information
from the Subscriber to verify the information represented by the Subscriber
herein.
5. Investment Purpose in Acquiring the Debentures.
The Subscriber and the Company acknowledge that the securities
comprising and/or underlying the Debentures have not been registered under the
Securities Act, or applicable state securities laws, and that such securities
will be issued to Subscriber in reliance on exemptions from the registration
requirements of the Securities Act and applicable state securities laws, based
in part on Subscriber's representations and undertakings contained herein,
including Subscriber's investment intent. The Subscriber has no present
intention to divide his participation with others or to resell or otherwise
dispose of all or any part of the Debentures.
6. Compliance with Securities Act.
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The Subscriber agrees that if the Debentures or any part thereof are
to be sold or transferred by the Subscriber in the future, the Subscriber will
sell or distribute them pursuant to the requirements of the Securities Act and
applicable state securities Laws. The Subscriber agrees that the Subscriber will
not transfer any part of the Debentures without (i) obtaining an opinion of
counsel satisfactory in form and substance to the counsel for the Company to the
effect that such transfer is exempt from the registration requirements under the
Securities Act and applicable state securities laws or (ii) effecting such
transfer under the required registration requirements of applicable securities
law.
7. Restrictive Legend.
Subscriber agrees that the Company may place a restrictive legend on
the documents representing the securities comprising and/or underlying the
Debentures containing substantially the following language:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER
SUCH ACT UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS THE SALE
IS OTHERWISE EXEMPT FROM REGISTRATION. THE COMPANY MAY REQUEST A WRITTEN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH SALE, PLEDGE OR
HYPOTHECATION, OR OTHER TRANSFER. THIS CERTIFICATE MUST BE SURRENDERED TO
THE CORPORATION OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE
SALE, PLEDGE HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER CONTAINED IN AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
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8. Stop Transfer Order.
The Subscriber and Company agree that the Company may not place a
stop transfer order with its registrar and stock transfer agent (if any)
covering all certificates representing the securities comprising and/or
underlying the Debentures.
9. Knowledge of Restrictions Upon Transfer of the Debentures.
The Subscriber understands that the securities comprising the
Debentures are not freely transferable and may in fact be prohibited from sale
for an extended period of time and that, as a consequence thereof, the
undersigned must bear the economic risk of investment in the Debentures for an
indefinite period of time and may have extremely limited opportunities to
dispose of the Debentures.
10. Registration and Other Rights with regard to the Debentures.
(a) Each Debenture Holder who wishes to convert its Debenture into
shares of Common Stock shall provide notice via facsimile to the Company on a
business day. The Company shall use best efforts and deliver within 5 business
days, a certificate(s) for the number of shares of Common Stock to which the
Holder is entitled, provided the Certificate representing the Debenture is
received by the Company within 2 business days of such notice.
(b) The Debenture may be converted into Common Stock of the Company,
at any time commencing after the earlier of the effective date of the
registration statement covering the conversion shares; or ninety (90) days after
the filing of the registration statement covering the conversion shares provided
that a minimum of $25,000 must be converted upon any such conversion (or any
lesser remaining amount held by the holders upon conversion).
(c) The Debentures are convertible into Common Stock at a discount
of Twenty Five (25%) Percent of the Closing Bid Price on the
date the Conversion notice is received by the Company ("the
Conversion Date") subject to adjustment as provided by the
Debenture. There is a $0.50 floor and a $2.00 ceiling on the
conversion price. For purposes of calculating the conversion,
the Debenture value shall equal the principal face value plus
any and all accrued and unpaid interest as of the date of
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conversion, unless the Company in 30 days elects to pay such
interest in cash. Following the issuance of the Debenture, the
number of shares underlying the Debenture shall be
proportionately adjusted for any increase or decrease in the
number of issued shares of stock resulting from the splitting
or consolidation of shares, the payment of a stock dividend or
effected in any other similar manner.
(d) The Company shall file a registration statement covering the
resale of all shares underlying the Debenture, in the event of
conversion, and any shares of Common Stock paid the Placement
Agent as compensation, in a registration statement filed no
later than ninety (90) days after the later of (i) the closing
of this offering or, (ii) June 29, 1999 if the offering
contemplated herein is extended to such date. If the
registration statement is not filed as required by this
Agreement and AWC has given notice to the Company of the final
closing or end of the Offering period, the Company shall pay
to the Holder, a two (2%) percent fee in cash over and above
the face amount of the Debenture as liquidated damages for
each calendar month delayed (if less than one full calendar
month then the liquidated damages shall be prorated over the
number of days delayed in the less than complete calendar
month).
If an offering in connection with which the Subscriber is entitled
to registration under this paragraph (a) is an underwritten offering, then the
Subscriber shall, unless otherwise agreed by the Company, offer and sell the
Debentures and underlying Shares included in such Registration Statement in an
underwritten offering using the same underwriter or underwriters and, subject to
the provisions of this Agreement, on the same terms and conditions as other
Securities; Common Stock or Preferred Stock included in such underwritten
offering provided that if the registration statement pertains to an underwritten
offering, the inclusion of any such shares shall be subject to an underwriter's
cutback if the underwriter determines, in good faith, that the inclusion of such
shares will adversely affect the offering by the Company with such cutback to be
accomplished on a pro-rata basis among all selling shareholders or as shall be
otherwise required by such underwriter.
(e) In connection with the filing of a registration statement
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pursuant to this section, the Company shall:
(i) notify the Subscriber as to the filing and status thereof and
of all amendments thereto filed prior to the effective date of
said registration statement;
(ii) notify such Subscriber promptly after it shall have received
notice of the time when the registration statement becomes
effective or any supplement to any prospectus forming a part
of the registration statement has been filed;
(iii) prepare and file without expense to such Subscriber any
necessary amendment or supplement to such registration
statement or prospectus as may be necessary to comply with the
1933 Act or advisable in connection with the proposed
distribution of the securities by such Subscriber;
(iv) take all reasonable steps to qualify the Shares for sale under
the securities or blue sky laws of such state as such
Subscriber has designated herein and to register or obtain the
approval of any federal or state authority which may be
required in connection with the proposed distribution, except,
in each case, in jurisdictions in which the Company must
either qualify to do business or file a general consent to
service of process as a condition of the qualification of such
securities;
(v) notify such Subscriber of any stop order suspending the
effectiveness of the registration statement and use its
reasonable best efforts to remove such stop order;
(vi) undertake to keep such registration statement and prospectus
effective for a period of twelve months after its effective
date; and
(vii) furnish to such Subscriber as soon as available, copies of any
such registration statement and each preliminary or final
prospectus and any supplement or amendment required to be
prepared pursuant to the foregoing provisions of this section,
all in such quantities as such Subscriber may from time to
time reasonably request.
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(f) The Company agrees to pay all underwriting discounts and
commissions, transfer taxes, registration fees and his own counsel fees with
respect to the Shares being registered. The Company will pay all other costs and
expenses in connection with a registration statement to be filed pursuant to
this Section 10 including, without limitation, the fees and expenses of counsel
for the Company, the fees and expenses of its accountants, and all other costs
and expenses incident to the preparation, printing and filing under the Act of
any such registration statement, each prospectus and all amendments and
supplements thereto, the costs incurred in connection with the qualification of
such securities for sale in such state as the Subscriber shall have designated,
including fees and disbursements of counsel for the Company, and the costs of
supplying a reasonable number of copies of the registration statement, each
preliminary prospectus, final prospectus and any supplements or amendments
thereto to such Subscriber.
(g) The Company agrees to use its reasonable best efforts to enter
into an appropriate cross-indemnity agreement with any underwriter (as defined
in the Securities Act) for such Subscriber in connection with the filing of a
registration statement pursuant to this section.
(H) If the Company shall file any registration statement including
therein all or any part of the Shares held by the Subscriber, the Company and
each Subscriber shall enter into an appropriate cross-indemnity agreement
whereby the Company shall indemnify and hold harmless the Subscriber against any
losses, claims, damages or liabilities (or actions in respect thereof) arising
out of or based upon any untrue statement of any material fact contained in such
registration statement, or any omission to state therein a material fact
required to be stated therein or necessary to make statements therein not
misleading unless such statement or omission was made in reliance upon and in
conformity with written information furnished or required to be furnished by any
such Subscriber, and each such Subscriber shall indemnify and hold harmless the
Company, each of its directors and officers who have signed the registration
statement and each person, if any, who controls the Company, within the meaning
of the Securities Act against any losses, claims, damages or liabilities (or
actions in respect thereof) arising out of or based upon any untrue statement of
any material fact, contained in such registration statement, or any omission to
state therein a material fact required to be stated therein or necessary to make
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with written information furnished or required
to be furnished by such Subscriber expressly for use in such registration
statement.
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(i) For a period of one (1) year after the effective date of the
registration statement filed pursuant to this Section 10, the Company at its
expense will file such post-effective amendments as may be necessary to make
available for use a prospectus meeting the requirements of the Securities Act.
The Company will cause copies of such prospectus to be delivered to any person
selling the shares of Common Stock as may be required by the Securities Act and
the rules and regulations of the SEC.
11. Representations to Survive Delivery.
The representations, warranties and agreements of the Company and of
the Subscriber contained in this Agreement will remain operative and in full
force and effect and will survive the payment of the purchase price pursuant to
Section 2 above and the delivery of certificates representing the securities
comprising the Shares.
12. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated by this
Agreement and supersedes all prior arrangements or understandings with respect
thereto.
(b) Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective heirs, legal representatives, successors and assigns.
(c) Third Party Rights. Notwithstanding any other provision of this
Agreement, this Agreement shall not create benefits on behalf of any third
party, and this Agreement shall be effective only as between the parties hereto
and their respective successors, heirs and permitted assigns.
(d) Descriptive Headings. The descriptive headings of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
(e) Notices. Any notice hereunder to or upon either party hereto
shall be deemed to have been duly given for all purposes if (a) in writing and
sent by (i) messenger or an overnight courier service against receipt, or (ii)
certified or registered mail, postage paid, return receipt requested, or (b)
sent by telegram,
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Page 13
telecopy, telex or similar electronic means, provided that a written copy
thereof is sent on the same day by postage paid first class mail, to such party
at the following address:
To Subscriber: at its address set forth on the signature
page hereof
To the Company at: 0000 Xxxxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance, with the laws of the State of Florida and of the United States of
America, without regard to choice of law provisions.
(g) Remedies. In the event of any actual or prospective breach or
default by either party hereto, the other party shall be entitled to equitable
relief, including remedies in the nature of rescission, injunction and specific
performance. All remedies hereunder are cumulative and not exclusive, and
nothing herein shall be deemed to prohibit or limit either party from pursuing
any other remedy or relief available at law or in equity for such actual or
prospective breach or default, including the recovery of damages.
(h) Disputes and Jurisdiction. Disputes arising under this Agreement
shall be resolved in a federal or state court of general jurisdiction sitting in
the State of New York, or State of Florida. Each of the parties hereto hereby
irrevocably consents and submits to the jurisdiction of such court.
(i) Severability. The provisions hereof are severable and in the
event that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the party of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
(j) Assignment, Etc. This Agreement may not be assigned without the
prior written consent of the parties, and any purported assignment without
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such consent shall be void and without effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not intended, and shall not
be deemed, to create or confer any right or interest for the benefit of any
person nor a party hereto.
(k) Amendment. Except as otherwise provided herein, no amendment of
this Agreement shall be valid or effective, unless in writing and signing by or
on behalf of the parties hereto.
(l) Waiver. No course of dealing or omission or delay on the part of
either party hereto in asserting or exercising any right hereunder shall
Constitute or operate as a waiver of any such right. No waiver of any provision
hereof shall be effective, unless in writing and signed by or on behalf of the
party to be charged therewith. No waiver shall be deemed a continuing waiver or
waiver in respect of any other or subsequent breach or default, unless expressly
so stated in writing.
(m) Further Assurances. Each party hereto covenants and agrees
promptly to execute, deliver, file or record such agreements, instruments,
certificates and other documents and to perform such other and further acts as
the other party hereto may reasonably request or as may otherwise be necessary
or proper to consummate and perfect the transactions contemplated hereby.
(n) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together shall constitute
one and the same agreement.
# of Debentures Purchased
------------------------- -------------------------------
Subscriber (Signature)
# of Debentures Purchased
------------------------- -------------------------------
Subscriber (Signature, if more
than one investor)
Total Dollar Investment
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of Subscriber
$
------------------------- -------------------------------
Print Name
-------------------------------
Print Name (If more than one
investor)
-------------------------------
Address
The Company hereby accepts the subscription evidenced by this Subscription
Agreement and Questionnaire:
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
-----------------------
Title: President, CEO
----------------------
Dated: July 13, 1999
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SUBSCRIBER INFORMATION
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(Please print name(s) in which the Debentures are to be issued)
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Taxpayer I.D. No. Taxpayer I.D. No.
(If more than one investor)
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Xxxxxx Xxxxxxx
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Xxxx Xxxxx Zip Code
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Telephone Number
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Occupation
Check One:
____ Individual Ownership
____ Joint Tenants (JTWROS)
____ Partnership
____ Tenants in Common
____ Corporation
____ Other
Private Placement Offering
Subscription Agreement and Questionnaire
Page 17
CERTIFICATE OF SIGNATORY
(To be completed if Debentures are being subscribed for by an Entity)
I, ____________________________________, am the ________________ of
________________ (the "Entity").
I certify that I am empowered and duly authorized by the Entity to
execute and carry out the terms of the Subscription Agreement and Questionnaire
and to purchase and hold the Securities, and certify further that such
Subscription Agreement and Questionnaire has been duly and validly executed on
behalf of the Entity and constitutes a legal and binding obligation or the
Entity.
IN WITNESS WHEREOF, I have set my hand this ___ day of __________,
1999.
--------------------------
(Signature)
--------------------------
(Title)
--------------------------
(Please Print Name)
Private Placement Offering
Subscription Agreement and Questionnaire
Page 18
