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EXHIBIT 10.3
[Xxxxxx Technologies, Inc. Letterhead]
Name of Subscriber XXXXXX XXXXXXX
SUBSCRIPTION AGREEMENT
Xxxxxx Technologies, Inc.
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxx-Xxxxx, XX 00000
Ladies and Gentlemen:
1. SUBSCRIPTION. I (sometimes referred to herein as the "Investor")
hereby subscribe for and agree to purchase 37,500 Unit(s) (as defined below)
offered by Xxxxxx Technologies, Inc. ("Xxxxxx"), a Delaware corporation (the
"Company"), on the terms and conditions described herein and in the Private
Placement Memorandum ("Memorandum"), dated November, 2000, together with all
supplements, if any, relating to this offering. The purchase price per Unit is
$4.00. The aggregate amount subscribed for hereby is $150,000. The minimum
subscription amount, subject to reduction in the discretion of the Company, is
$100,000.
2. DESCRIPTION OF UNITS. Each Unit consists of one (1) share of the
Company's common stock ("Common Stock") and one (1) warrant to purchase one (1)
share of Common Stock at $6.00 per share for a period of five years. A maximum
of 850,000 Units is being offered.
3. PURCHASE.
(a) I hereby tender to the Company a check or wire transfer
made payable to the order of "Xxxxxx - Special Account" in the amount indicated
above, one executed copy of this Subscription Agreement and an executed copy of
my Investor Questionnaire.
(b) For this offering, the Company will conduct closing(s) in
the amount of at least $500,000 in subscriptions until March 30, 2001 (the
"Termination Date"), unless extended by the Company for a period of not more
than thirty (30) days. Until a closing occurs, or until the Termination Date, my
funds herewith will be held in a segregated bank account subject to the terms
and conditions herein. Upon the closing for my subscription, I will be notified
promptly by the Company as to whether my subscription has been accepted by the
Company.
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4. ACCEPTANCE OR REJECTION OF SUBSCRIPTION.
(a) I understand and agree that the Company reserves the right
to reject this subscription for the Units, in whole or in part, for any reason
and at any time prior to a closing.
(b) In the event of the rejection of this subscription, my
subscription payment will be promptly returned to me without interest or
deduction and this Subscription Agreement shall have no force or effect. In the
event my subscription is accepted and the offering is completed, the funds
specified above shall be released to the Company.
5. OWNERSHIP OF UNITS. The Units subscribed for herein shall not be
deemed issued to or owned by me until one copy of this Subscription Agreement
has been executed by me and countersigned by the Company and the closing with
respect to such Units has occurred.
6. DISCLOSURE. Because this offering is limited to accredited investors
as defined in Section 2(15) of the Securities Act, and Rule 501 promulgated
thereunder, in reliance upon the exemption contained in Sections 3(b) or 4(2) of
the Securities Act and applicable state securities laws, the Units are being
sold without registration under the Securities Act. I acknowledge receipt of the
Memorandum and all exhibits listed therein and represent that I have carefully
reviewed and understand the Memorandum and its exhibits. I have received all
information and materials regarding the Company that I have requested.
I fully understand that the Company has limited sales and substantial losses and
that the Units are speculative investments which involve a high degree of risk
of loss of my entire investment. I fully understand the nature of the risks
involved in purchasing the Units and I am qualified by my knowledge and
experience to evaluate investments of this type. I have carefully considered the
potential risks relating to the Company and purchase of its Units and have, in
particular, reviewed each of the risks set forth in the Memorandum. I have had
the opportunity to ask questions of and receive answers from representatives of
the Company or persons acting on its behalf concerning the Company and the terms
and conditions of a proposed investment in the Company and I have also had the
opportunity to obtain additional information necessary to verity the accuracy of
information furnished about the Company. Accordingly, I have independently
evaluated the risks of purchasing the Units.
7. INVESTOR REPRESENTATIONS AND WARRANTIES. I acknowledge, represent
and warrant to, and agree with, the Company as follows:
(a) I am aware that my investment involves a high degree of
risk as disclosed in the Memorandum and have read carefully the Memorandum,
including the section thereof entitled "Risk Factors". I am aware that the
Company has limited sales and substantial losses.
(b) I acknowledge and am aware that there is no assurance as
to the future performance of the Company.
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(c) I acknowledge that the Company has made no representations
as to any tax consequences to me in connection with my purchase of Units, and
the Company has advised me to seek the advise of experts in such areas prior to
making this investment.
(d) I am purchasing the Units for my own account for
investment and not with a view to or for sale in connection with the
distribution of the Units or the shares of Common Stock comprising the Units,
nor with any present intention of selling or otherwise disposing of all or any
part of the foregoing securities. I agree that I must bear the entire economic
risk of my investment for an indefinite period of time because, among other
reasons, the Units have not been registered under the Securities Act or under
the securities laws of any state and, therefore, cannot be resold, pledged,
assigned or otherwise disposed of unless they are subsequently registered under
the Securities Act and under applicable securities laws of certain states or an
exemption from such registration is available. I understand that the Company is
under no obligation to register the Units on my behalf or to assist me in
complying with any exemption from such registration under the Securities Act or
any state securities laws. Furthermore, I hereby acknowledge and agree that I
will not sell, transfer, pledge, encumber, give or otherwise dispose of, either
publicly or privately, the Units. I hereby authorize the Company to place a
legend denoting the restrictions on the Common Stock certificates that may be
issued.
(e) Except as described in my Investor Questionnaire, I am not
a member of the National Association of Securities Dealers, Inc. ("NASD"); I am
not and have not, for a period of 12 months prior to the date of this
Subscription Agreement, been affiliated or associated with any company, firm, or
other entity which is a member of the NASD; and I do not own any stock or other
interest in any member of the NASD (other than interests acquired in open market
purchases).
(f) I believe that the investment in the Units is suitable for
me based upon my investment objectives and financial needs, and I have adequate
means for providing for my current financial needs and contingencies and have no
need for liquidity with respect to my investment in the Company. My investment
in the Units represents less than 10% of my net worth.
(g) I have not utilized any person as my purchaser
representative as defined in Regulation D promulgated by the Commission pursuant
to the Securities Act in connection with evaluating such merits and risks.
(h) I have relied solely upon my own investigation in making a
decision to invest in the Company.
I have received no representation or warranty from the Company or any of its
respective officers, directors, employees or agents in respect of my investment
in the Company and I have received no information (written or otherwise) from
them relating to the Company or its business other than as set forth in the
Memorandum or in any public filings with the Securities and Exchange Commission
(the "SEC"). I am not participating in the offer as a result of or subsequent
to: (i)
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any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(j) I have had full opportunity to ask questions and to
receive satisfactory answers concerning the offering and other matters
pertaining to my investment and all such questions have been answered to my full
satisfaction.
(k) I have been provided an opportunity to obtain any
additional information concerning the offering and the Company and all other
information to the extent the Company possesses such information or can acquire
it without unreasonable effort or expense.
(l) I am an "accredited investor" as defined in Section 2(15)
of the Securities Act and in Rule 501 promulgated thereunder. I can bear the
entire economic risk of the investment in the Units for an indefinite period of
time and I am knowledgeable about and experienced in investments in the equity
securities of non-publicly traded companies, including early stage companies. I
am acquiring the Units for my own account for investment purposes only and not
with a view to the resale or distribution of such securities within the meaning
of the Securities Act of 1933, as amended. I am not acting as an underwriter or
a conduit for sale to the public or to others of unregistered securities,
directly or indirectly, on behalf of the Company or any person with respect to
such securities.
(m) I understand that (i) the Units and the underlying
securities have not been registered under the Securities Act, or the securities
laws of certain states in reliance on specific exemptions from registration,
(ii) no securities administrator of any state or the federal government has
recommended or endorsed this offering or made any finding or determination
relating to the fairness of an investment in the Company and (iii) the Company
is relying on my representations and agreements for the purpose of determining
whether this transaction meets the requirements of the exemptions afforded by
the Securities Act and certain state securities laws.
(n) I understand that (i) since neither the offer nor sale of
the Units has been registered under the Securities Act or the securities laws of
any state, the Units may not be sold, assigned, pledged or otherwise disposed of
unless they are so registered or an exemption from such registration is
available, and (ii) it is not anticipated that there will be any market for the
resale of the Units.
I have been urged to seek independent advice from my professional advisors
relating to the suitability of an investment in the Company in view of my
overall financial needs and with respect to the legal and tax implications of
such investment. If the Investor is a corporation, company, trust, employee
benefit plan, individual retirement account, Xxxxx Plan, or other tax-exempt
entity, it is authorized and qualified to become an Investor in the Company and
the person signing this Subscription Agreement on behalf of such entity has been
duly authorized by such entity to do so.
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(o) The information contained in my Investor Questionnaire, as
well as any information which I have furnished to the Company with respect to my
financial position and business experience, is correct and complete as of the
date of this Subscription Agreement and, if there should be any material change
in such information prior to the Closing, I will furnish such revised or
corrected information to the Company.
(p) I hereby acknowledge and am aware that except for any
rescission rights that may be provided under applicable laws, I am not entitled
to cancel, terminate or revoke this subscription, and any agreements made in
connection herewith shall survive my death or disability.
8. INDEMNIFICATION. I hereby agree to indemnify and hold harmless the
Company and their respective officers, directors, shareholders, employees,
agents, and attorneys against any and all losses, claims, demands, liabilities,
and expenses (including reasonable legal or other expenses, including reasonable
attorneys' fees) incurred by each such person in connection with defending or
investigating any such claims or liabilities, whether or not resulting in any
liability to such person, to which any such indemnified party may become subject
under the Securities Act, under any other statute, at common law or otherwise,
insofar as such losses, claims, demands, liabilities and expenses (a) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact made by me and contained in this Subscription Agreement or my
Investor Questionnaire, or (b) arise out of or are based upon any breach by me
of any representation, warranty, or agreement made by me contained herein.
9. WAIVER. The Investor has made full and complete inquiry with respect
to any matters of interest in connection with this investment and is fully
satisfied in all respects with his investment decision, fully understanding and
comprehending the significant risks associated, acknowledges that he has not
relied on any specific information concerning the Company, and understands that
the Company has not made any representations regarding the Company or the future
performance of the Company.
10. SEVERABILITY. In the event any parts of this Subscription Agreement
are found to be void, the remaining provisions of this Subscription Agreement
shall nevertheless be binding with the same effect as though the void parts were
deleted.
11. CHOICE OF LAW AND JURISDICTION. This Subscription Agreement will be
deemed to have been made and delivered in New York State and will be governed as
to validity, interpretation, construction, effect and in all other respects by
the internal laws of the State of North Carolina. The Company and the
undersigned (i) agree that any legal suit, action or proceeding arising out of
or relating to this Subscription Agreement shall be instituted exclusively in
North Carolina State Trial Court, County of Guilford, or in the United States
District Court for the Middle District of North Carolina, (ii) waive any
proceeding, and (iii) irrevocably consent to the jurisdiction of the North
Carolina State Trial Court, County of
Guilford, and the United States District Court for the Middle District of North
Carolina in any such suit, action or proceeding.
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The Company and the undersigned further agree to accept and acknowledge service
of any and all process which may be served in any such suit action or proceeding
brought in the North Carolina State Trial Court, County of Guilford, or in the
United States District Court for the Middle District of North Carolina and agree
that service of process upon it mailed by certified mail to its address shall be
deemed in every respect effective service of process upon it in any suit, action
or proceeding.
12. COUNTERPARTS. This Subscription Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Subscription Agreement may be by actual or facsimile signature.
13. BENEFIT. This Subscription Agreement shall be binding upon and
inure to the benefit of the parties hereto.
14. NOTICES AND ADDRESSES. All notices, offers, acceptance and any
other acts under this Subscription Agreement (except payment) shall be in
writing, and shall be sufficiently given if delivered to the addresses in
person, by Federal Express or similar courier delivery, by facsimile delivery
or, if mailed, postage prepaid, by certified mail, return receipt requested, as
follows:
Investor: At the address designated on the signature
page of this Subscription Agreement.
The Company: Xxxxxx Technologies, Inc.
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any of them, by notice to the others may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
ORAL EVIDENCE. This Subscription Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior oral and written agreements between the parties hereto with respect to the
subject matter hereof. This Subscription Agreement may not be changed, waived,
discharged, or terminated orally but,
rather, only by a statement in writing signed by the party or parties against
which enforcement or the change, waiver, discharge or termination is sought.
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16. SECTION HEADINGS. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part, any of the terms or
provisions of this Subscription Agreement.
17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements contained herein shall survive the
delivery of, and the payment for, the Units.
18. COMMISSIONS/FINDER'S FEES. The Company reserves the right to pay
commissions and/or finder's fees in cash, securities of the Company, a
combination thereof, or other combination to individuals and/or entities in
connection with the sale of Units in this offering, in amounts the Company deems
appropriate in the Company's sole and exclusive discretion.
19. SIMULTANEOUS SALE OF SECURITIES. The Investor hereby acknowledges
and consents to the Company offering and selling any of its securities
simultaneously with this offering at a price the Company determines is
appropriate in its sole and absolute discretion.
20. ACCEPTANCE OF SUBSCRIPTION. The Company may accept this
Subscription Agreement at any time for all or any portion of the Units
subscribed for by executing a copy hereof as provided and notifying me within a
reasonable time thereafter.
RESIDENTS OF ALL STATES: THE UNITS OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE UNITS ARE SUBJECT
TO REGISTRATIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH 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.
THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR
HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS
OFFERING OR THE ACCURACY OR ADEQUACY OF THIS CONFIDENTIAL INVESTMENT SUMMARY.
ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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Manner in Which Title is to be Held. (check one)
[X] Individual Ownership
[ ] Community Property
[ ] Joint Tenant with Right of Survivorship (both parties must sign)
[ ] Partnership
[ ] Tenants in common
[ ] Corporation
[ ] Trust
[ ] Other (Please indicate)
Dated:
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INDIVIDUAL INVESTORS ENTITY INVESTORS
/s/ Xxxxxx X. Xxxxxxx Name of entity, if any
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Signature (Individual)
By:
---------------------------------
*Signature
Its
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Signature (Joint) Title
(all record holders must sign)
XXXXXX X. XXXXXXX
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Name(s) Typed or Printed Name Typed or Printed
Address to Which Correspondence Address to Which Correspondence
Should be Directed Should be Directed
0 XXXXXXXX XXXX
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XXXXXXXXXX, XX 00000
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City, State and Zip Code City, State and Zip Code
###-##-####
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Tax Identification or Tax Identification or
Social Security Number Social Security Number
* If Units are being subscribed for by any entity, the
Certificate of Signatory on the next page must also be
completed
The foregoing subscription is accepted and the Company hereby agrees to be bound
by its terms.
XXXXXX TECHNOLOGIES, INC.
Dated: 4/13/01 By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Chairman and CEO
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CERTIFICATE OF SIGNATORY
(To be completed if Units are being subscribed for by an entity)
I, ____________________________________, the ______________________________
(NAME OF SIGNATORY) (TITLE)
of______________________________ "Entity"), a ________________________
(NAME OF ENTITY)
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(TYPE OF ENTITY)
hereby certify that I am empowered and duly authorized by the Entity to execute
the Subscription Agreement and to purchase the Units, and certify further that
the Subscription Agreement has been duly and validly executed on behalf of the
Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this day of 2001.
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(SIGNATURE)
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