Exhibit 10.4
The XxxXxxxxx.Xxx, Inc.
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT ("Agreement") made as of this _ day of _______,
2001 between The XxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company"),
and the undersigned (the "Subscriber").
WHEREAS, the Company desires to raise the gross amount of up to One
Million ($1,000,000) Dollars through the issuance of shares of the Company's
common stock, par value $._____ per share (the "Shares"), each Share costing One
($1.00) Dollar, in a private placement on the terms and conditions hereinafter
set forth; and
WHEREAS, the Subscriber desires to acquire the number of Shares set
forth on the signature page hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Subscription; Purchase Price. Subject to the terms and conditions
herein, the Subscriber hereby agrees to purchase from the Company that number of
Shares set forth beneath the Subscriber's name on the signature page hereto, at
the purchase price of One ($1.00) Dollar per Share (the aggregate purchase price
for the Shares being purchased by the Subscriber being the "Purchase Price").
Subscriber acknowledges (i) this Agreement shall not be deemed to have
been accepted by the Company until the Company indicates its acceptance by
returning to Subscriber a copy of this Agreement executed by the Company, and
(ii) acceptance by the Company of this Agreement is conditioned upon the
information and representations and warranties of Subscriber contained herein
and in the Investor Questionnaire being complete, true and correct as of the
date of Subscriber's execution and the date of Closing (as hereinafter defined).
2. Closing. The closing of the purchase of the Shares (the "Closing")
shall be at the discretion of the Company. The Company shall have the right to
have a separate Closing upon its acceptance of each subscription. The date of
each and every Closing hereunder shall be called a "Closing Date".
A stock certificate in the Subscriber's name and representing the
number of Shares purchased by Subscriber pursuant hereto, which certificates
shall bear the legend set forth in Section 4(i)(iv) hereof, shall be delivered
to the Subscriber within ten business (10) days following the Closing Date.
Prior to the Closing, the Subscriber shall pay the Purchase Price by
certified or official bank check made payable to "MacReport, Inc."
contemporaneously with or prior to the execution and delivery of this
Subscription Agreement-
3. Acceptance of Subscription. The Subscriber understands and agrees
that the Company in its sole discretion reserves the right to accept or reject
Subscriber's subscription in whole or in part, or to allot to the Subscriber
fewer than the number of Shares subscribed for herein, at any time prior to the
Closing Date. If the Company rejects the subscription, this Agreement shall
thereafter be of no further force or effect.
4. Representations, Warranties and Agreements of Subscriber. The
Subscriber hereby acknowledges, represents and warrants to the Company, on the
date hereof and on the Closing Date, as follows:
a. The Subscriber understands that the offering and sale of the Shares
is intended to be exempt from registration under the Securities Act of 193 3, as
amended (the "Act") by virtue of Section 4(2) of the Act and the provisions of
Regulation D promulgated thereunder, and in accordance therewith and in
furtherance thereof, the Subscriber represents and warrants and agrees as
follows:
b. The Subscriber and/or the Subscriber's adviser(s) has/have received
and carefully reviewed this Subscription Agreement, including the attachment
hereto entitled "Risk Factors" which is made a part hereof, and understands the
information contained therein.
c. The Subscriber acknowledges that the Subscriber, or the Subscriber's
attorney, accountant, or adviser(s), has/have had a reasonable opportunity to
inspect all documents and records pertaining to this investment.
d. The Subscriber and/or the Subscriber's adviser(s) has/have had a reasonable
opportunity to ask questions and receive answers from a person or persons acting
on behalf of the Company concerning the offering of the Shares and all such
questions have been answered to the full satisfaction of the Subscriber.
e. In making a decision to invest in the Shares, the Subscriber has not
relied on any information other than information contained in this Agreement.
f. The Subscriber is not subscribing for the Shares as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
of a subscription by a person other than a representative of the Company.
g. If the Subscriber is a natural person, the Subscriber has reached
the age of majority in the jurisdiction in which the Subscriber resides; the
Subscriber has adequate means of providing for the Subscriber's current
financial needs and contingencies, is able to bear the substantial economic
risks of an investment in the Shares for an indefinite period of time, has no
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need for liquidity in such investment, and, at the present time, could afford a
complete loss of such investment.
h. The Subscriber has such knowledge and experience in financial, tax
and business matters so as to enable the Subscriber to utilize the information
made available to the Subscriber to evaluate the merits and risks of an
investment in the Shares, and to make an informed investment decision with
respect thereto.
i. The Subscriber is not relying on the Company or any agent of the
Company with respect to any legal, tax or economic advice related to an
investment in the Shares.
j. The Subscriber will not sell or otherwise transfer the Shares
without registration under the Act and applicable state securities laws, or
pursuant to an exemption therefrom. The Shares have not been registered under
the Act or under the securities laws of any state and the Company will be under
no obligation to so register the Shares. The Subscriber represents that the
Subscriber is purchasing the Shares for the Subscriber's own account, for
investment and not. with a view to resale or distribution except in compliance
with the Act and applicable state securities laws. The Subscriber has no present
intention to sell the Shares and the Subscriber has no present arrangement
(whether or not legally binding) to sell the Shares to or through any person or
entity; provided, however, that by making the representations herein, the
Subscriber does not agree to hold the Shares for any minimum or other specific
term and reserves the right to dispose of the Shares at any time in accordance
with Federal and state securities laws applicable to such disposition.
k. The Subscriber recognizes that investment in the Shares involves
substantial risks, including the risk of, loss of the entire amount of such
investment, and has taken full cognizance of and understands all of the risks
related to the purchase of the Shares.
l. The Subscriber's overall commitment to investments that are not
readily marketable is reasonable in relation to the Subscriber's net worth.
m. The Subscriber is an "accredited investor" as that term is defined
in Rule 501 (a) of Regulation D under the Act as indicated by the responses to
the Investor Questionnaire. The Subscriber further represents and warrants that
the information furnished by the Subscriber in the Investor Questionnaire is
accurate and complete in all material respects.
n. The Subscriber understands that the Shares are being offered and
sold in reliance on a transactional exemption from the registration requirements
of Federal and state securities laws and that the Company is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of the Subscriber set forth in this Agreement
in order to determine the applicability of such exemptions and the suitability
of the Subscriber to acquire the Shares.
o. The Subscriber understands that there is no public trading market
for the Shares and none can be expected to develop, and that the securities must
be held indefinitely unless
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registered under the Act or an exemption from registration is available. The
Subscriber has been advised or is aware of the provisions of Rule 144
promulgated under the Act.
p. The Subscriber hereby agrees to provide such information and to
execute and deliver such documents, as the Company may deem reasonably
appropriate with regard to the Subscriber's suitability or otherwise in
connection with this Agreement.
q. The execution, delivery and performance of this Agreement by the
Subscriber (i) will not constitute a default under or conflict with any
agreement or instrument to which the Subscriber is a party or by which it or its
assets are bound, (H) will not conflict with or violate any order, judgment,
decree, statute, ordinance or regulation applicable to the Subscriber
(including, without limitation, any applicable laws relating to permissible
legal investments) and (iii) does not require the consent of any person or
entity, other than those that will have been obtained prior to the Closing Date.
r. This Agreement has been duly authorized, executed and delivered by
the Subscriber and constitutes the valid and binding agreement of the Subscriber
enforceable against it in accordance with its terms.
s. The Subscriber has not retained, or otherwise entered into any
agreement or understanding with, any broker or finder in connection with the
purchase of the Shares by the Subscriber, and the Company will not incur any
liability for any fee, commission or other compensation on account of any such
retention, agreement or understanding by the Subscriber.
t. The Subscriber understands, acknowledges and agrees that in making
an investment decision, the Subscriber has relied solely on the Subscriber's own
examination of the Company, including the merits and risks involved. The Shares
have not been recommended by any federal or state securities commission or
regulatory authority. Furthermore, the foregoing authorities have not confirmed
the accuracy or determined the adequacy of this Agreement.
u. The Subscriber, if executing this Agreement in a representative or
fiduciary capacity, has all requisite power and authority to execute and deliver
this Agreement in such capacity and on behalf of the subscribing individual,
xxxx, partnership, trust, estate, corporation, or other entity for whom the
Subscriber is executing this Agreement, and such individual, xxxx, partnership,
trust, estate, corporation, or other entity has all requisite power and
authority to enter into this Agreement and make an investment in the Shares.
v. The representations, warranties, and agreements of the Subscriber
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of such date and shall
survive the execution and delivery of this Agreement and the purchase of the
Shares.
w. For as long as is required by applicable laws, the certificates
representing the Shares shall bear a legend in substantially the following form,
together with any legend required by applicable state laws, and the Subscriber
shall not transfer any or all of the Shares or any interests therein, except in
accordance with the terms of such legends:
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"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or applicable state securities laws, and may be
offered, sold or otherwise transferred only if so registered
under the Act and applicable state securities laws or if the
holder has delivered to the Company an opinion of counsel,
which counsel and opinion shall be reasonably satisfactory to
the Company, that an exemption from such registration is
available."
5. Representations and Warranties of the Company. The Company
represents and warrants to the Subscriber as follows:
a. The Company has been duly organized, is validly existing as a
corporation and is in good standing under the laws of the State of Delaware. The
Company is duly qualified and in good standing in each jurisdiction in which the
character or location of its properties or the nature or conduct of its business
makes such qualification necessary, except where the failure to be so qualified
or in good standing would not, in the aggregate, have a material adverse effect
on the financial condition of the Company. The Company has all requisite power
and authority, and all material consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all applicable
public, regulatory or governmental agencies and bodies, to own, lease and
operate its properties and conduct its business as now being conducted.
b. The Company has full corporate power and authority to enter into
this Agreement and to issue and sell the Shares on the terms and conditions set
forth herein. The execution and delivery of this Agreement by the Company and
the consummation of the transactions contemplated hereby (i) have been duly and
validly authorized and approved by all necessary corporate action on the part of
the Company; (ii) will not constitute a default under or conflict with (A) the
Company's charter or bylaws or (B) any material agreement or other instrument to
which the Company is a party or by which the Company is bound; (iii) will not
conflict with or violate any order, judgment, decree, statute, ordinance or
regulation applicable to the Company; and (iv) does not require the consent of
any person or entity, other than those that will have been obtained prior to the
Closing Date.
c. This Agreement has been duly authorized, and when executed and
delivered by the Company, will constitute valid and binding obligations of the
Company enforceable against it in accordance with their respective terms.
d. The representations, warranties and agreements of the Company
contained herein shall be true and correct in all material respects on and as of
the Closing Date as if made on and as of such date and shall survive the
execution and delivery of this Agreement and the sale of the Shares.
6. Termination. This Agreement may be terminated by the Company or the
Subscriber, after 5 days' prior written notice to the other party, if the
Closing has not occurred by the Termination Date, provided that the failure to
so close was not the result of actions of the party seeking termination. In the
event of termination of this Agreement, the Purchase Price,
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together with any accrued interest thereon, if any, shall be returned to
Subscriber within five (5) business days after receipt of such written notice.
7. NASAA Uniform Legend.
IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFER-ABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
8. Miscellaneous.
a. This Agreement shall be governed by,. and construed in accordance
with, the laws of the State of New York, without giving effect to principles of
conflicts of law.
b. In the event any provision of this Agreement is invalid or
unenforceable under any applicable law, statute, rule or regulation, then such
provision shall be deemed inoperative to the extent it may conflict therewith
and shall be deemed modified to conform with such law, statute, rule or
regulation. Any provision hereof which may prove invalid or unenforceable shall
not affect the validity or enforceability of any other provision hereof.
c. Each party shall indemnify each other party against any loss,
expense or damages (including reasonable attorney's fees but excluding
consequential damages) incurred as a result of such parties' breach of any
representation, warranty, covenant or agreement in this Agreement.
d. This Agreement may be executed in counterparts, each of which shall
be an original, but all of which shall constitute one instrument.
e. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof. Only a writing executed by the
Company and the Subscriber may amend any provision of this Agreement.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
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f. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxx 00000, Attention: Chief Executive Officer, and to the
Subscriber at the address indicated on the last page of this Subscription
Agreement. Notices shall be deemed to have been given on the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
IN WITNESS WHEREOF, Subscriber and the Company have executed and dated
this Subscription Agreement as of the dates below.
Entity Subscription Individual Subscription
------------------- -----------------------
Name of Entity:
------------------------ -----------------------------------
Signature of Subscriber
By:
------------------------------------ -----------------------------------
Signature of Co-Subscriber (if any)
Name of Signatory: Name(s) of Individual:
--------------------- -------------
Taxpayer Identification No.: Social Security No(s):
----------- -------------
Address: Address:
--------------------------- ---------------------------
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Number of Shares Subscribed For:
*If Subscriber is a Registered
Representative with an NASD member firm,
have the following acknowledgment signed
by the appropriate party:'
The undersigned NASD member firm
acknowledges
receipt of the notice required by Rule 3050
of
the NASD Conduct Rules.
SUBSCRIPTION ACCEPTED:
-----------------------------------
Name of NASD Member Firm
The XxxXxxxxx.Xxx, Inc.
By: By:
-------------------------------- -------------------------
Authorized Officer
Date:
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