Exh 10.14
Non-US Purchaser
DATAMEG CORP.
SUBSCRIPTION AGREEMENT
DataMEG Corp.
Attn: Xxxxxx Xxxxxx, President
1. SUBSCRIPTION. The undersigned (the "Purchaser"), intending to be legally
bound, hereby irrevocably agrees to purchase from DataMEG Corp. (the "Company")
the number of shares of Common Stock, $0.01 par value per share of the Company
(the "Common Stock") set forth on the signature page hereof at a purchase price
of ___($.17___) Dollar per share. This subscription is submitted to you, as
Purchaser, in accordance with and subject to the terms and conditions described
in this Subscription Agreement, including all attachments, schedules and
exhibits thereto ("Subscription Agreement").
2. PAYMENT. The Purchaser encloses herewith a check payable to, or will
immediately make a wire transfer payment to the Company in the full amount of
the purchase price of the Common Stock herein being subscribed. Such funds will
be held for the Purchaser's benefit, and will be returned promptly, without
interest, penalty, expense or deduction if this Subscription Agreement is not
accepted by the Company. Together with the check for, or wire transfer of, the
full purchase price, the Purchaser is delivering a completed and executed
Signature Page to the Subscription Agreement.
3. DEPOSIT OF FUNDS. All payment made as provided in Section 2 hereof shall be
deposited directly with the Company for use by the Company for general corporate
purposes.
4. ACCEPTANCE OF SUBSCRIPTION. The Purchaser understands and agrees that the
Company in its sole discretion reserves the right to accept or reject this
subscription for Common Stock. If this subscription is rejected, all funds
received from the Purchaser will be returned without interest, penalty, expense
or deduction, and this Subscription Agreement shall thereafter be of no further
force or effect.
5. REPRESENTATIONS AND WARRANTIES. The Purchaser hereby acknowledges,
represents, warrants, and agrees as follows:
5.1 POWER OF PURCHASERS. The Purchaser, whether an individual,
corporation, partnership, or any other organized entity, has the requisite power
and authority to execute and deliver this Agreement and all other agreements
contemplated by this Agreement and to perform its obligations hereunder and
thereunder. This Agreement and all other agreements contemplated by this
Agreement have been duly executed and delivered by the Purchaser and are the
valid and binding obligations of the Purchaser, enforceable against the
Purchaser in accordance with their terms, except as such enforceability may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights, specific performance, injunctive
or other equitable remedies.
5.2 INVESTMENT INTENT. The Purchaser acknowledges that the Common
Stock is not presently contemplated to be registered under the United States
federal Securities Act of 1933, as amended ("Securities Act") or any state
securities laws. The Common Stock is being acquired by the Purchaser for
investment purposes only and not with a view to the distribution thereof. The
Purchaser has no present intention to sell or otherwise dispose of the Common
Stock except in compliance with the provisions of the Securities Act or other
applicable law. The Purchaser understands that the Common Stock must be held by
the Purchaser indefinitely unless a subsequent disposition or transfer is
registered under the Securities Act or is exempt from registration therefrom.
The Company shall refuse to register any transfer of the securities not made in
accordance with the provisions of Regulation S of the Act, pursuant to
registration under the Act, or pursuant to an available exemption from
registration.
5.3 NON-U.S. PERSONS.
(a) Neither the Purchaser nor any of its shareholders, partners, or
members, if a corporation, partnership, or other organized entity, is a "U.S.
Person" as that term is defined pursuant to Regulation S promulgated pursuant to
the Securities Act.
(b) the Purchaser is not acquiring the Common Stock for the account or
benefit of any U.S. person.
(c) The offer to purchase the Common Stock was made to Purchaser
outside of the United States, and Purchaser understands that the exemption
afforded by Regulation S requires that the Purchaser of the securities
contemplated herein not be in the United States when the offer for the sale of
such securities is made. Purchaser is executing this Agreement from his or its
residence or offices outside the United States at the address set forth in
Exhibit A. Purchaser has not engaged in or directed any unsolicited offers to
purchase the Common Stock in the United States. The purchase of the Common Stock
by the Purchaser is in accordance with all securities and other laws of the
jurisdiction in which it is incorporated or legally resident.
(d) Purchaser is neither a U.S. Person nor a Distributor (as such
terms are defined in Section 902(k) and 902(d), respectively, of Regulation S).
Upon completion of the transactions contemplated hereby, Purchaser will be the
sole beneficial owner of the Common Stock and has not pre-arranged any sale with
a purchaser in the United States.
(e) Purchaser is familiar with and understands the terms and
conditions and requirements contained in Regulation S, specifically, without
limitation, Purchaser understands that the statutory basis for the exemption
claimed for the sale of the Common Stock would not be present if such sale,
although in technical compliance with Regulation S, is part of a plan or scheme
to evade the registration provisions of the Securities Act.
(f) During the Restricted Period (as defined in Regulation S), neither
Purchaser nor any or its affiliates will, directly or indirectly, maintain any
short position in the securities of the Company or any other hedging
transactions involving the Common Stock.
(g) The Purchaser will not offer or sell the Common Stock (which term
shall include any pre-arrangement for a purchase by a U.S. person or other
person in the U.S.) directly or indirectly, in the United States or to any
natural person who is a resident of the United States
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or to any other "U.S. person" (as defined in Rule 902(k) of Regulation S) or
for the account or benefit of any "U.S. person" (other than a "distributor",
as defined in Rule 902(d) of Regulation S) at any time on or prior to forty
days following the closing and thereafter only if registered under the
Securities Act and all applicable state laws or an exemption from the
registration requirements of the Securities Act and similar state laws is
available.
(h) Purchaser understands that the Common Stock is being sold by the
Company in reliance on Regulation S and that the Company is relying upon the
truth and accuracy of the representations, warranties and acknowledgements of
Purchaser set forth herein.
5.4 EXTENT OF RESTRICTIONS. Nothing in this Section 5 shall be
inferred to prohibit, prevent, restrict, or require prior approval of or consent
to a transfer which is not subject to the Securities Act or any securities law
of any state of the United States.
5.5 KNOWLEDGE AND INFORMATION. The Purchaser (i) has such knowledge
and experience in financial and business affairs that the Purchaser is capable
of evaluating the merits and risks involved in purchasing the Common Stock; (ii)
is able to bear the economic risks involving in purchasing the Common Stock;
(iii) has had the opportunity to conduct such investigations of the Company and
the Company's business as the Purchaser deems necessary and appropriate in the
circumstances to proceed with this subscription for the Common Stock; and (iv)
has had sufficient opportunity to consult with the Purchaser's legal, financial,
and investment advisors regarding this subscription for Common Stock.
5.6 NO BREACH. The execution, delivery and performance of this
Agreement by Purchaser and the consummation of the transactions contemplated
hereby will not violate, conflict with or otherwise result in the breach of any
of the terms and conditions of, result in a material modification of or
constitute (or with notice or lapse of time or both would constitute) a default
under (i) any of the organizational documents of Purchaser; (ii) any material
instrument, contract or other agreement to which Purchaser is a party or by or
to which it or any of its properties are bound or subject; or (iii) any law
applicable to Purchaser or any of its properties or operations.
5.7 NO BROKER. Purchaser has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
5.8 CERTIFICATE LEGEND. The undersigned consents to the placement of a
legend on any certificate issued by the Company to represent the shares of
Common Stock in form substantially as follows:
"The shares ("Shares") represented by this certificate have been offered
and sold in reliance upon Regulation S of the United States federal
Securities Act of 1933, as amended ("Act") and applicable state securities
laws. The Shares may not be sold, distributed, assigned, offered, pledged
or otherwise transferred except in accordance with Regulation S to the Act,
pursuant to (i) an effective registration statement or (ii) an exemption
from registration pursuant to the Act and applicable state securities laws
supported by an opinion of legal counsel delivered to the issuer hereof
which opinion is
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concurred in by legal counsel to the issuer. Hedging transactions involving
these Shares may not be conducted unless in compliance with the Act"
6. IRREVOCABILITY; BINDING EFFECT. The Purchaser hereby acknowledges and agrees
that the subscription hereunder is irrevocable by the Purchaser, except as
required by applicable law, and that this Subscription Agreement shall survive
the death or disability of the Purchaser and shall be binding upon and inure to
the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives, and permitted assigns. If the Purchaser is
more than one person, the obligations of the Purchaser hereunder shall be joint
and several and the agreements, representations, warranties, and acknowledgments
herein shall be deemed to be made by and be binding upon each such person and
such person's heirs, executors, administrators, successors, legal
representatives, and permitted assigns.
7. MODIFICATION. This Subscription Agreement shall not be modified or waived
except by an instrument in writing signed by the party against whom any such
modification or waiver is sought.
8. NOTICES. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to whom it is to be
given: (a) if to the Company, at the address set forth above, or (b) if to the
Purchaser, at the address set forth on the signature page hereof (or, in either
case, to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 8). Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
9. ASSIGNABILITY. This Subscription Agreement and the rights, interests and
obligations hereunder are not transferable or assignable by the Purchaser and
the transfer or assignment of the shares of Common Stock or the shares of Common
Stock issuable upon conversion of the Common Stock shall be made only in
accordance with all applicable laws and in accordance with the Further Amended
and Restated Stockholders' Agreement.
10. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts relating to
contracts entered into and to be performed wholly within such State.
11. CONFIDENTIALITY. The Purchaser acknowledges and agrees that any information
or data the Purchaser has acquired from or about the Company, not otherwise
properly in the public domain, was received in confidence. The Purchaser agrees
not to divulge, communicate or disclose, except as may be required by law or for
the performance of the Subscription Agreement, or use to the detriment of the
Company or for the benefit of any other person or persons, or misuse in any way,
any confidential information of the Company, including any scientific,
technical, trade or business secrets of the Company and any scientific,
technical, trade or business materials that are treated by the Company as
confidential or proprietary, including, but not limited to, ideas, discoveries,
inventions, concepts, developments and improvements belonging to the Company and
confidential information obtained by or given to the Company about or belonging
to third parties.
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12. MISCELLANEOUS.
(a) This Subscription Agreement and the Signature Page constitute the entire
agreement between the Purchaser and the Company with respect to the subject
matter hereof and supersede all prior oral or written agreements and
understandings, if any, relating to the subject matter hereof. The terms and
provisions of this Agreement may be waived, or consent for the departure
therefrom granted, only by a written document executed by the party entitled to
the benefits of such terms or provisions.
(b) The Purchaser's representations and warranties made in this Agreement shall
survive the execution and delivery hereof and delivery of the shares of Common
Stock.
(c) Each of the parties hereto shall pay its own fees and expenses (including
the fees of any attorneys, accountants, appraisers or others engaged by such
party) in connection with this Agreement and the transactions contemplated
hereby whether or not the transactions contemplated hereby are consummated.
(d) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and
the same instrument.
(e) Each provision of this Subscription Agreement shall be considered separable
and, if for any reason any provision or provisions hereof are determined to be
invalid or contrary to applicable law, such invalidity or illegality shall not
impair the operation of or affect the remaining portions of this Subscription
Agreement.
(f) Paragraph titles are for descriptive purposes only and shall not control or
alter the meaning of this Subscription Agreement as set forth in the text.
THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK
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FOR INDIVIDUALS
DATAMEG CORP.
SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT
Subscriber hereby elects to subscribe under the Subscription Agreement
Shares of Common Stock at ___($____) Dollar per share and hereby executes this
Signature Page.
2,941,176 x $.17 $500,000
--------- ---- --------
# of Shares of Common Stock Per Share Subscription Price
--------------------------------- ---------------------------------
Print Name of Purchaser U.S. Individual Taxpayer Identification Number
/s/ Xxx Xxxxx Xxxx Xxx 3-5-,2004
----------------------------------------- ----------------------------
Signature of Purchaser Date
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Address of Purchaser
---------------------------- ------------------------------------
Print Name of Co-Purchaser, if any U.S. Individual Taxpayer Identification Number
, 2004
---------------------------- -----------------------------
Signature of Co-Purchaser, if any Date
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Address of Co-Purchaser, if any
If there is more than one Purchaser indicated above, please indicate the manner
in which the shares are to be held as follows:
__ Joint Tenants
__ Joint Tenants with rights or survivorship
__ Tenants in Common
__ Community Property:
SUBSCRIPTION FOR SHARES OF COMMON STOCK ACCEPTED AND AGREED TO this day of
3-5-, 2004.
-----
DATAMEG CORP.
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By /s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx, President
Hereunto Duly Authorized
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