SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT
(this “Agreement”), dated ______________________, 2009, is entered
into by and among Xxxxxxxx Curhan Ford Group, Inc., a Delaware corporation (the
“Company”), and the several subscribers signatory hereto (each such subscriber,
a “Subscriber” and, collectively, the “Subscribers”).
WHEREAS, the Company and the
Subscribers are executing and delivering this Agreement in reliance upon an
exemption from securities registration afforded by the provisions of Section
4(2) and Rule 506 of Regulation D (“Regulation D”) hereunder, as promulgated by
the United States Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “1933 Act”); and
WHEREAS, the parties desire
that, upon the terms and subject to the conditions contained herein, the Company
shall issue and sell to the Subscribers, as provided herein, and the
Subscribers, severally and not jointly, shall purchase “Units” consisting of (i)
a Convertible Secured Promissory Note in the form attached hereto as Exhibit A (the “Notes”); and
(ii) warrants to purchase shares of Common Stock, in the form attached hereto as
Exhibit B (the
“Warrants”). The shares of Common Stock of the Company issuable upon conversion
of the Notes are referred to as the “Shares,” the shares of Common Stock of the
Company issuable upon exercise of the Warrants are referred to as the “Warrant
Shares” and the Notes, the Shares, the Warrants and the Warrant Shares are
collectively referred to herein as the “Securities.”
NOW, THEREFORE, in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and each Subscriber hereby agree as follows:
1. Purchase and Sale of
Units.
(a) Subject
to the satisfaction (or waiver) of the conditions to Closing set forth in this
Agreement, each Subscriber shall purchase Units for the Subscription Amount
indicated on the signature page hereto, and the Company shall sell the Units
called for by the Subscription Amount to each Subscriber. The total Purchase
Price for the Units shall be paid in cash. The closing of the transactions
contemplated hereby may occur on two or more dates prior to June 1, 2009 as
provided in Section 11(c) hereof. Prior to each Closing Date, each
Subscriber shall deliver its portion of the Purchase Price by wire transfer to
the account of the company designated in accordance with the wire transfer
instructions set forth on Schedule A, and such amount shall be held in the
manner described in Paragraph 1(b) below.
(b) All
payments for Securities made by the Subscribers will be deposited as soon as
practicable for the undersigned’s benefit in a non-interest bearing custodial
account. Payments for Securities made by the Subscribers will be returned
promptly, prior to an applicable Closing, without interest or deduction, if, or
to the extent, (i) the undersigned’s subscription is rejected; or (ii) the
offering is terminated for any reason.
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(c) Upon
receipt by the Company of the requisite payment for all Securities purchased by
the Subscribers whose subscriptions are accepted, the Company shall deliver to
each Subscriber: (i) Notes for the amount purchased hereunder by each
Subscriber, and (ii) Warrants for the number of Warrants each Subscriber is
entitled to based on the amount of Notes purchased. Each Subscriber understands
that the Shares and the Warrant Shares will not be issued until they have been
approved for listing by the NASDAQ Capital Market.
(d) Notwithstanding
anything to the contrary herein, the Company and Subscribers agree that no funds
shall be released from the custodial account or utilized by the Company until
all of the items required to be delivered by the Company pursuant to paragraph
1(c) have been delivered and all other conditions to Closing set forth in this
Agreement have been satisfied or waived.
2. Warrants. Each
Warrant shall be exercisable to purchase shares of Common Stock in an amount
equal to the quotient of (i) 75% of the principal amount of Notes purchased by
Subscriber; and (ii) the Exercise Price per share. The Exercise Price
per share shall be equal to Fifty Cents ($0.50). The Warrants shall be
exercisable, beginning on the date which is six months following the date of
issuance, until the date which is ten years from the date of this
Agreement.
3. Subscriber’s Representations
and Warranties. Each Subscriber hereby represents and warrants to and
agrees with the Company that:
(a) Information on
Company. The Subscriber has been furnished with or has had access at the
XXXXX Website of the SEC to the Company’s Form 10-K, filed on March 31, 2009,
for the year ended December 31, 2008 and the Company’s Form 10-K for the year
ended December 31, 2007 as filed with the SEC, together with all subsequently
filed Forms 10-Q, 8-K, and other filings made with the SEC available at the
XXXXX website (any such document, an “SEC Document”). The Subscriber has
reviewed the risk factors contained in the SEC Documents. The Subscriber has
considered all factors the Subscriber deems material in deciding on the
advisability of investing in the Securities.
(b) Information on
Subscriber. At the time the Subscriber was offered the Securities it was,
and as of the date hereof it is an “accredited investor”, as such term is
defined in Regulation D promulgated by the SEC under the 1933 Act, is
experienced in investments and business matters, has made investments of a
speculative nature and, either alone or with its representatives, has such
knowledge and experience in financial, tax and other business matters as to
enable the Subscriber to utilize the information made available by the Company
to evaluate the merits and risks of and to make an informed investment decision
with respect to the proposed purchase, which represents a speculative
investment. The Subscriber has the authority to purchase and own the Securities,
is able to bear the economic risk of such investment and, at the present time,
is able to afford a complete loss thereof. The information set forth on the
signature page hereto regarding the Subscriber is accurate.
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(c) Purchase of Common
Stock. The Subscriber is purchasing the Securities as principal for its
own account and not with a view to any distribution thereof.
(d) Compliance with 1933
Act. The Subscriber understands and agrees that the Securities have not
been registered under the 1933 Act or any applicable state securities laws, by
reason of their issuance in a transaction that does not require registration
under the 1933 Act (based in part on the accuracy of the representations and
warranties of Subscriber contained herein), agrees that the Securities shall
bear a restrictive legend indicating that they have not been registered under
the 1933 Act and that such Securities must be held indefinitely unless a
subsequent disposition is registered under the 1933 Act or any applicable state
securities laws or is exempt from such registration.
(e) Correctness of
Representations. The Subscriber represents that the foregoing
representations and warranties are true and correct as of the date hereof in all
material respects and, unless the Subscriber otherwise notifies the Company
prior to the Closing Date (as hereinafter defined), shall be true and correct in
all material respects as of the Closing Date.
4. Company Representations and
Warranties. The Company represents and warrants to each Subscriber that,
as of the date hereof except where noted otherwise, and except as specifically
disclosed in a Disclosure Schedule hereto:
(a) Corporate Existence and
Qualification. The Company and each of its subsidiaries is a corporation
or other entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of their respective incorporation, formation or
organization; has the corporate or other power and any required certificates,
authorizations or permits issued by any regulatory body to own, manage, lease
and hold its properties and to carry on its business as described in the SEC
Filings as and where such properties are presently located and such business is
presently conducted; and is duly qualified to do business and is in good
standing as a foreign corporation in each of the jurisdictions where the
character of its properties or the nature of its business requires it to be so
qualified, except for those jurisdictions in which failure to do so has not had,
or could not reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the business, assets, liabilities, condition
(financial or otherwise), properties, operations or prospects of the Company and
its subsidiaries, taken as a whole (a “Material Adverse Effect”).
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(b) Authority, Approval and
Enforceability. This Agreement has been duly executed and delivered by
the Company, and the Company has all requisite corporate power and legal
capacity to execute and deliver this Agreement and all agreements, instruments
and documents executed and delivered or to be executed and delivered by the
Company in connection with the transactions provided for hereby, to consummate
the transactions contemplated hereby (collectively, the “Collateral
Agreements”), and to perform its obligations hereunder and under this Agreement
and each of the Collateral Agreements. The execution and delivery of this
Agreement and the Collateral Agreements and the performance of the transactions
contemplated hereby and thereby have been duly and validly authorized and
approved by all corporate action necessary on behalf of the Company. This
Agreement and each Collateral Agreement to which the Company is a party
constitutes, or upon execution and delivery will constitute, the legal, valid
and binding obligation of the Company, enforceable in accordance with its terms,
except as such enforcement may be limited by general equitable principles or by
applicable bankruptcy, insolvency, moratorium, or similar laws and judicial
decisions from time to time in effect which affect creditors’ rights
generally.
(c) Issuance of
Securities. The Company has full power and authority to issue the
Securities, the issuance of the Securities has been duly authorized, and upon
receipt and acceptance of consideration from the Subscriber, the Shares and the
Warrants when issued will be legally and validly issued, fully paid and
non-assessable, free and clear of all liens. The Warrant Shares have been duly
reserved for issuance and sale pursuant to their terms and, when paid for,
issued and delivered by the Company pursuant to due exercise of the Warrants,
will be validly issued, fully paid and nonassessable; provided, however, that
the Securities may be subject to restrictions on transfer under state and/or
federal securities laws as set forth herein or as otherwise required by such
laws at the time a transfer is proposed. The Company has taken all action
required by its Articles of Incorporation and Bylaws and the rules and
regulations of the NASDAQ Capital Market to approve the offer and sale of the
securities.
(d) SEC Filings. The
Company has filed all proxy statements, reports and other documents required to
be filed by it under the 1933 Act and the Securities Exchange Act of 1934 for
the twelve months preceding the date hereof (the “SEC Filings”) on a timely
basis or has received a valid extension of such time of filing and has filed
such SEC Filing before the expiration of any such extension. Each SEC Filing
was, at the time of its filing, in material compliance with the requirements of
its respective form and none of the SEC Filings, or the financial statements
(and the notes thereto) included in the SEC Filings, as of their respective
filing dates, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Filings, as of their respective filing dates, complied in all material respects
with applicable accounting requirements and the rules and regulations of the SEC
with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods
involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
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(e) Capitalization; Ownership of
Shares. As of March 31, 2008, the authorized capital stock of the Company
consists of 300,000,000 authorized shares of common, $ 0.0001 par value per share, of
which 12,756,656 were issued and outstanding. In addition, the
Company has authorized the following classes of preferred stock as of the date
hereof: 2,000,000 shares of Series A, $0.0001 par value per share, of
which none were issued and outstanding, 12,500,000 shares of Series B,
0.0001 par value per
share, of which none were issued and outstanding, 14,200,000 shares of Series C,
$ 0.0001 par value per share, of
which none were issued and outstanding. The Company further has the
ability, under its Certificate of Incorporation, to create additional series of
Preferred Stock, or additional shares of any of the above classes of Preferred
Stock, without stockholder approval.
(f) Litigation. Except as
disclosed in any SEC Filing or on Schedule 4(f) hereto, there are no claims,
actions, suits, investigations or proceedings against the Company or any of its
subsidiaries pending or, to the knowledge of the Company, threatened in any
court or before or by any governmental authority, or before any arbitrator, that
might have a material adverse effect on the Company’s business, operations,
prospects, properties, or financial condition (whether covered by insurance or
not) and there is no reasonable basis for any such claim, action, suit,
investigation or proceeding.
(g) Liabilities and
Losses. Except as disclosed in any SEC Document, there are no outstanding
liabilities of the Company other than in the ordinary course of
business.
(h) Compliance
with Other Instruments. The execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions contemplated
hereby (including, without limitation, the issuance of the Securities) will not
(i) result in a violation of any certificate of incorporation, certificate of
formation, any certificate of designations or other constituent documents of the
Company or any of its subsidiaries, any capital stock of the Company or any of
its subsidiaries or bylaws of the Company or any of its subsidiaries or (ii)
conflict with, or constitute a default or breach (or an event which with notice
or lapse of time or both would become a default or breach) in any respect under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign, federal and
state securities laws and regulations) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected, except in the case of clauses (ii) and (iii)
above, to the extent that such violations conflict, default or right would not
reasonably be expected to have a Material Adverse Effect.
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(j) Material
Changes. Since the date of the latest audited financial statements included
within the SEC Filings, except as specifically disclosed in a subsequent SEC
Filing filed prior to the date hereof: (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the
Company has not altered its method of accounting, (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate (as defined in Rule 144 under
the 1933 Act), except pursuant to existing Company stock option
plans.
(k) Private
Placement. The offer and issuance of the Securities to the Subscriber is being
made pursuant to the exemptions from the registration provisions of the 1933 Act
afforded by Section 4(2) of the 1933 Act and Rule 506 of Regulation D
promulgated thereunder. Assuming the accuracy of the Subscribers’
representations and warranties set forth in Section 3 hereof, no registration
under the Securities Act is required for the offer and sale of the Securities by
the Company to the Subscribers as contemplated hereby. Neither the Company nor
any person acting on behalf of the Company has offered or sold any of the
Securities by any form of general solicitation or general advertising. The
Company has offered the Securities for sale only to the Subscribers and certain
other “accredited investors” within the meaning of Rule 501 under the Securities
Act.
(l) Correctness of
Representations. The Company represents that the foregoing
representations and warranties are true and correct as of the date hereof in all
material respects and, unless the Company otherwise notifies the Subscribers
prior to the Closing Date (as hereinafter defined), shall be true and correct in
all material respects as of each Closing Date.
5. Regulation D
Offering. The offer and issuance of the Securities to the Subscriber is
being made pursuant to the exemptions from the registration provisions of the
1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of
Regulation D promulgated there under.
6. Transfer, Listing and
Registration.
(a) Transfers. The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement, to the Company, or to an
Affiliate (as defined in Rule 144 under the 0000 Xxx) of a Subscriber, or by
will or by the laws of descent or distribution, the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the 1933 Act. As a condition
of transfer, any transferee shall agree in writing to be subject to the
obligations of a Subscriber to this Agreement.
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(b) Legends. Each
Subscriber and agrees to the imprinting, so long as is required by this Section
6, of a legend on the Notes in substantially the following form:
“NEITHER THIS NOTE NOR THE SHARES OF COMMON STOCK
INTO WHICH THIS NOTE IS
CONVERTIBLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY APPLICABLE STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, SUCH REGISTRATION AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
FORM AND SUBSTANCE OF WHICH IS ACCEPTABLE TO THE ISSUER”
In addition, each Subscriber agrees to the
imprinting, so long as is required by this Section 6, of a legend on the
Warrants, in substantially the following form:
“NEITHER THIS WARRANT NOR THE SHARES
OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE
STATE SECURITIES LAW AND NEITHER MAY BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, SUCH REGISTRATION AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE FORM AND SUBSTANCE OF WHICH IS
ACCEPTABLE TO THE ISSUER.”
In
addition, each Subscriber agrees to the imprinting, so long as is required by
this Section 6, of a legend on the Shares and the Warrant Shares, in
substantially the following form:
“THE SHARES OF COMMON STOCK
REPRESENTED BY THIS
CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, SUCH REGISTRATION AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
FORM AND SUBSTANCE OF WHICH IS ACCEPTABLE TO THE
ISSUER.”
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(c) Certificates. The
Company agrees to reissue certificates evidencing the Securities without the
legend set forth in Section 6(b) if at such time, prior to making any transfer
of any such Securities, such holder thereof shall give written notice to the
Company describing the manner and terms of such transfer and removal as the
Company may reasonably request. Such transfer and removal will only be effected,
(i) while a registration statement covering the resale of such security is
effective under the 1933 Act, or (ii) following any resale of such Securities
pursuant to Rule 144, or (iii) if such Securities are eligible for resale under
Rule 144, or (iv) if such legend is not required under applicable requirements
of the 1933 Act (including judicial interpretations and pronouncements issued by
the Staff of the SEC).
(d) Acknowledgement. Each
Subscriber agrees that the removal of the restrictive legend from certificates
representing Securities as set forth in this Section 6 is predicated upon the
Company’s reliance that the Subscriber will sell any Securities pursuant to
either the registration requirements of the 1933 Act, including any applicable
prospectus delivery requirements, or an exemption there from, and, if the
Company so requests, agrees to furnish the Company an opinion of counsel to this
effect and stating the basis for any claimed exemption, in form and substance
acceptable to the Company.
(e) Listing. The Company
covenants and agrees with each Subscriber that it has, or it will as soon as
practicable, file an application with the NASDAQ Capital Market to list the
Shares and the Warrant Shares in the time and manner required by the rules of
the NASDAQ Capital Market, and will use commercially reasonable efforts to
prosecute such application to effectiveness.
(f) Registration.
(1) The Company
covenants and agrees with each Subscriber that on or before October 31, 2009,
(the “Filing Date”), the Company shall prepare and file with the Commission a
Registration Statement covering the resale of the Shares and the Warrant Shares
(the “Registrable Securities”) for an offering to be made on a continuous basis
pursuant to Rule 415. The Registration Statement shall be on Form S-3. The
Company shall use commercially reasonable efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event no later than 120 days from
the Filing Date, (the “Effective Date”) and to keep the Registration Statement
continuously effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities have been sold or (ii) all
Registrable Securities may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule 144, as
determined by the counsel to the Company pursuant to a written opinion letter to
such effect, addressed and acceptable to the Company’s transfer agent and the
affected Holders.
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(2) If, unless due
to a fault of a Subscriber a Registration Statement is not filed on
or prior to the Filing Date (such failure or breach being referred to as an
“Event,” and for purposes of this clause the date on which such Event
occurs being referred to as “Event Date”), then in addition to any other rights
the Subscribers may have hereunder or under applicable law, for all or part of
each 30-calendar day period in which any Event remains uncured, the Company
shall pay to each Subscriber an amount in cash, as liquidated damages and not as
a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber
pursuant to this Subscription Agreement for any Registrable Securities then held
by such Subscriber that are not otherwise eligible for resale, subject to an
overall limit of liquidated damages in the aggregate of 6% of the aggregate
purchase price paid by such Subscriber. The liquidated damages
pursuant to the terms hereof shall apply on a daily pro-rata basis for any
portion of a month prior to the cure of an Event. Subscriber agrees that the
liquidated damages provided for in this Section 6(f) shall be its sole remedy
for an Event or for the failure to secure an effective Registration Statement
for any Registrable Securities.
7. Conditions Precedent to
Obligations of the Company. The obligations of the Company are subject to
the fulfillment prior to or on the Closing Date of the following conditions any
of which may be waived by the Company in writing:
(a) all
representations and warranties of the Subscriber contained in this Agreement
shall be true and correct in all respects as of the Closing Date with the same
effect as though such representations and warranties had been made on or as of
such date; and
(b) all
agreements and covenants of the Subscriber to be performed or complied with on
or prior to the Closing Date have in all material respects been so performed or
complied with.
8. Conditions Precedent to
Obligations of the Subscriber. The obligations of the Subscriber are
subject to the fulfillment prior to or on the Closing Date of the following
conditions any of which may be waived by the Subscriber in writing either before
or after the Closing Date:
(a) all
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects as of the Closing Date with the
same effect as though such representations and warranties had been made on or as
of such date; and
(b) all
obligations, agreements and covenants of the Company to be performed or complied
with on or prior to the Closing Date shall have, in all material respects been
so performed or complied with.
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10. Miscellaneous.
(a) Notices.
All notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: Xxxxxxxx Curhan Ford Group,
Inc., 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Chief Financial Officer, telecopier: (000) 000-000-0000, (ii) if to
the Subscriber to: the address and telecopier number indicated on the signature
pages hereto.
(b) Closing. The
consummation of the transactions contemplated herein (the “Closing”) shall take
place at the offices of the Company upon transfer of good funds from the custody
account designated by the Company to its operating accounts on one or more dates
prior to June 1, 2009 (each a “Closing Date”). If any subscription is
rejected in part, and in any order, the funds for the rejected portion of such
subscription will be returned without interest, penalty, expense or deduction,
and this Subscription Agreement will continue in full force and effect with
respect to the part of the subscription that was accepted.
(c) Entire Agreement;
Assignment. This Agreement and the other Transaction Documents represent
the entire agreement between the parties hereto with respect to the subject
matter hereof and may be amended only by a writing executed by the Company and
the Subscriber. Neither the Company nor the Subscriber has relied on any
representations not contained or referred to in this Agreement and the documents
delivered herewith. No right or obligation of the Company shall be assigned
without prior notice to and the written consent of the Subscriber. The
Subscriber may assign any or all of its rights hereunder to any person in
connection with a transfer of any Security to such person, provided such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the Subscriber.
(d) Counterparts/Execution.
This Agreement may be executed in any number of counterparts and by the
different signatories hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. This Agreement may be executed by
facsimile signature and delivered by facsimile transmission or electronic
mail.
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(e) Law Governing this
Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles
of conflicts of laws. Any action brought by either party against the other
concerning the transactions contemplated by this Agreement shall be brought only
in the state courts of State of California located in the city and county of San
Francisco or in the federal courts located in the city and county of San
Francisco, California. The
parties and the individuals executing this Agreement and other agreements
referred to herein or delivered in connection herewith on behalf of the Company
agree to submit to the jurisdiction of such courts and waive trial by jury.
The prevailing party shall be entitled to recover from the other party
its reasonable attorney’s fees and costs. In the event that any provision of
this Agreement or any other agreement delivered in connection herewith is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision of any
agreement.
(Signature
Pages Follow)
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IN WITNESS WHEREOF, the
parties hereto have caused this Subscription Agreement to be duly executed by
their respective authorized signatories as of the date first written
above.
COMPANY
|
XXXXXXXX CURHAN FORD
GROUP,
INC.
|
Address
for Notice:
|
||
|
By:
|
|
|
000
Xxxxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
|
Name:
|
Facsimile: (000)
000-000-0000
|
||
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Title:
|
Attention: Chief Financial
Officer
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||
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SUBSCRIBER
SIGNATURE PAGES TO XXXXXXXX CURHAN FORD GROUP,
IN
WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
Name of
Subscriber:
________________________________________________________________
Signature
of Authorized Signatory of Subscriber:
___________________________________________
Please
Check one only (see Section 3.(b)):
____
Subscriber IS an “accredited investor.”
____
Subscriber IS NOT an “accredited investor.”
Name of
Authorized Signatory:
___________________________________________________________
Title of
Authorized Signatory:
____________________________________________________________
Email
Address of Subscriber:
_______________________________________________________
Facsimile
Number of Subscriber:
________________________________________________________
Address
for Notice of Subscriber:
Subscription
Amount: $_______________
EIN /
Social Security Number: _______________________
Execution
Copy
13
SCHEDULE
A
WIRE
TRANSFER INSTRUCTIONS
Execution
Copy
14
EXHIBIT
A
CONVERTIBLE
SECURED PROMISSORY NOTE
Execution
Copy
15
EXHIBIT
B
WARRANT
Execution
Copy
16
