SUBSCRIPTION AGREEMENT
Exhibit
10.9
THIS
SUBSCRIPTION AGREEMENT (this "Agreement") is made as of the 28 day of
February,
2007, between Xxxxxxx Technologies Corporation, a Delaware corporation (the
"Company"),
and the undersigned subscribers (individually, a "Subscriber" and, collectively,
the "Subscribers").
The
Company desires to obtain financing by selling to the Subscribers an aggregate
of 250,000 shares (the "Shares") of its common stock, par value $0.001 per
share
("Common Stock"),
at $0.40 per share (the "Private Sale"). For each Share of Common Stock
purchased by a Subscriber, such Subscriber will also receive a warrant to
purchase 1 share of Common Stock
at
an exercise price of $1.00 per share, exercisable pursuant to the terms and
conditions set
forth
below. Each Subscriber desires to purchase the number of shares of Common Stock
and
a
warrant exercisable for the number of shares of Common Stock set forth on the
signature page
hereof (collectively, the "Securities").
NOW
THEREFORE, for and in consideration of the mutual representations and covenants
herein, the parties hereby agree as follows:
1. Subscription
for Shares and Warrant Rights
1.1
Subject to the terms and conditions hereinafter set forth, each Subscriber
hereby subscribes
for and irrevocably agrees to purchase from the Company the number of Shares
set
forth
on
the signature page hereof, and the Company agrees to sell such Shares to each
of
the Subscribers, at a purchase price equal to $0.40 per Share. The purchase
price is payable on the
date
hereof, by check or bank wire made payable to the order of the Company. The
certificates evidencing the Shares purchased by the Subscribers will be
delivered by the Company to the Subscribers as soon as practicable following
the
Company's receipt of the purchase price therefore.
1.2
For
each Share subscribed for herein, the Subscriber will also receive a warrant
to
purchase an additional 1 share of Common Stock at an exercise price of $1.00
per
share, to be
exercised on or before 3 p.m. December 30, 2009, unless terminated sooner under
the terms of
such
warrant, which will be in substantially the form attached hereto as Exhibit
A
(the
"Warrant").
2. Representations
by Subscriber
Each
Subscriber understands and agrees that the Company is relying and may rely
upon
the
following representations, warranties, and agreements made by such Subscriber
in
entering
into this Agreement:
2.1
Each
Subscriber recognizes that the purchase of the Securities 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 (a) it may not be possible to liquidate
the investment in the event
of
emergency; (b) transferability is extremely limited; and (c) in the event of
a
disposition, a
complete loss of investment could occur.
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2.2
Each
Subscriber acknowledges that he or she (a) is competent to understand
and
does
understand the nature of the investment, and (b) is able to bear the economic
risk of the
investment.
2.3
Each
Subscriber represents that he or she is an accredited investor as defined in
Rule
501
of Regulation D promulgated by the Securities and Exchange Commission (the
"SEC") under
the
Securities Act of 1933, as amended (the "Act").
2.4
Each
Subscriber acknowledges that he or she has significant prior investment
experience,
including investment in nonlisted and nonregistered securities, and that
he or
she has
read
all of the documents furnished or made available by
the
Company to evaluate the merits
and risks of the investment, recognizes the highly speculative nature of
this
investment, and
is
able to bear the economic risk hereby assumed.
2.5
The
Subscriber represents that all information regarding the Company which was
requested or desired has been furnished; that all other documents which could
be
reasonably provided
have been made available for inspection and review; and that the Subscriber
has
been afforded the opportunity to ask questions of and receive answers from
the
Company concerning the
terms
and conditions of the Private Sale and any additional information which has
been
requested.
2.6
Each
Subscriber hereby acknowledges that this Private Sale of Securities has
not
been
registered with the SEC because it is intended to be a private sale pursuant
to
Section 4(2)
of
the Act.
2.7
Each
Subscriber represents that the Securities are being purchased for his or her
own
account, for investment, and not for distribution or resale to others. Each
Subscriber agrees
that he or she will not sell, transfer, or otherwise dispose of the Securities
or any portion thereof
unless they are registered under the Act or unless an exemption from such
registration is
available.
2.8
Each
Subscriber may, with the Company's written consent, transfer the Securities
if such request for transfer is accompanied by an opinion of counsel
satisfactory to the
Company that neither the sale nor the proposed transfer of the Securities
results in a violation
of the Act or any applicable state "blue sky" laws (collectively, the
"Securities Laws"). Each
Subscriber agrees to hold the Company, its officer and directors, and their
respective heirs, representatives, successors, and assigns harmless and to
indemnify them against all liabilities,
costs, and expenses (including attorneys' fees) incurred by them as a result
of
any sale or distribution of the Securities by such Subscriber in violation
of
any Securities Laws or any
misrepresentation herein.
2.9
Each
Subscriber consents to the placement of a legend on the certificates
evidencing
the Shares and on the Warrant stating that they have not been registered under
the Act
and
setting forth or referring to the restrictions on transferability and sale
thereof.
3. Representations
by the Company
The
Company represents and warrants to each Subscriber as follows:
3.1. The
Company is a corporation duly organized, existing, and in good
standing under
the
laws of Delaware and has the corporate power to conduct its
business.
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3.2. The
execution, delivery, and performance of this Agreement by the Company
has been
duly
approved by the Board of Directors of the Company.
3.3.
The
Securities have been duly and validly authorized, and the Shares and the
shares
of
Common Stock issuable upon exercise of the Warrant (when so issued in accordance
with
the
terms thereof), will be duly and validly authorized and issued, fully paid,
and
nonassessable.
4. Investment
Restrictions
4.1
Each
Subscriber acknowledges that there is a very limited public market for the
Shares. Each Subscriber understands that, absent registration under the Act,
the
Securities generally
may only be publicly sold pursuant to Rule 144 (the "Rule") promulgated under
the Act.
The
Rule permits, subject to all of its terms and conditions, the public resale
(in
limited amounts)
of securities acquired in nonpublic offerings without having to satisfy the
registration requirements
of the Act. Accordingly, each Subscriber recognizes that, notwithstanding the
existence
of a public market for the Shares, he or she may not be able to take advantage
of the resale provisions of the Rule and may be unable to publicly offer or
sell
any of the Securities.
4.2 Underwriting
Requirements. In connection with any underwritten public offering, the
Company shall not be required to include any of the Securities subscribed for
hereunder in such
underwriting unless the Subscriber accepts the terms of the underwriting as
agre
d upon between
the Company and the underwriters for the offering (which underwriters shall
be
selected
by the Company).
5. Notices
to Subscribers
5.1
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE ACT AND ARE
BEING
OFFERED AND SOLD IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC
OR
OTHER REGULATORY AUTHORITY, NOR
HAVE
ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS
OF
THE OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
5.2
The
Securities are subject to restrictions on transferability and resale arid may
not
be
transferred or resold except as permitted under the Act and applicable state
securities laws, pursuant to registration or exemption therefrom.
6. Miscellaneous
6.1
Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by registered or certified mail, return receipt requested,
overnight mail or courier,
or telecopier, addressed to the Company at 0000 X. 000xx
Xxxxxx,
Xxxxx, Xxxxxxxx, 00000, and to each Subscriber at the address indicated on
the
signature page hereof. 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.
6.2
This
Agreement shall not be changed, modified, or amended except by a writing signed
by the party 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.
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6.3
This
Agreement shall be binding upon and inure to the benefit of the; parties hereto
and to their respective heirs, legal representatives, successors, and assign.
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 between them. Each Subscriber acknowledges and agrees
that the Company is making no representations in connection with the purchase
and sale
of
the Securities except as expressly set forth herein.
6.4This
Agreement and
its
validity, construction, and performance shall be governed in
all
respects by the laws of Delaware applicable to agreements to be performed wholly
within Delaware,
without regard to its conflicts of laws provisions.
6.5
This
Agreement may be executed in counterparts. 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 Securities as herein
provided.
IN
WITNESS WHEREOF the parties have executed this Agreement as of the clay and
year
first written above.
Subscriber:
/s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Number
of
Shares: 250,000
Number
of
Warrant Shares: 250,000
Address:
0000 XX 0xx
Xx.,
Xxx.
0
Xxx
Xxxxxx, XX 00000
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